Damodaran Namboodiri vs Ulahannan and Others

Anna Chandy, J.—This is an appeal by the complainant against an order of acquittal. The complainant is the Manager of the Poovakulam Devaswom. The complainant''s case is that the accused, with a view to take forcible possession of the property, trespassed on the western portion of Survey Number 323/2-3, in Kochukunnu Purayidom and ploughed the land, thereby destroying six beds of tender coconut plants and six other beds prepared for the purpose of planting. The entire purayidom covering an extent of 84 cents was taken delivery of by the Devaswom on 15-3-1955 in execution of the decree in O. S. 6 of 1102 obtained by the Devaswom against one Sankaran Nair Parameswaran Nair. Ext. P. 4 is the copy of the delivery kychit. On 5-4-1955 accused 1 to 3 in the case executed a registered lease deed for the western 393/4 cents of the property for a period of twelve years agreeing to pay a rent of Rs. 5/- per year and undertaking to surrender the property after the period on payment of the value of the improvements. Ext P. 1 is the registered lease deed. It is unequivocally admitted in the lease deed that the Devaswom had taken delivery of the entire property in execution of the decree in O. S. 6 of 1102. The complainant had also produced the accounts of the Devaswom wherein the rent paid by the accused for the portion of the property leased to them as well as the income from the western portion which was in the possession of the Devaswom are credited. D. Ws. 1 to 3 have admitted that there is a ''kayyala'' wall separating the western portion of the property from the eastern portion where accused 1 and 2 reside.

The plea of the accused was that the third accused who had taken a lease of the entire 84 cents in 1117 from Sankaran Nair Parameswaran Nair, the judgment-debtor in O.S. 6 of 1102, had given that property as dowry to accused 2, his daughter who was given in marriage to accused 1, and accused 1 and 2 were in possession all along. According to them though Parameswaran Nair had obtained the decree in O. S. 144 of 1122 for recovery of the property from the third accused, the property was not taken delivery of by him and as such there was no possibility of the Devaswom having come into possession of the property in pursuance of Ext. P. 4 delivery kychit. They sought to explain the execution of Ext. P. 1 lease deed by saying that it was fraudulently brought into existence at the instance of the Devaswom authorities and without making them aware of the contents of the document.

Apart from the documentary evidence both sides also let in oral evidence to support their case of possession. Though the learned Magistrate has referred to in general to the delivery list, the lease deed, the Devaswom accounts and the tax receipts, he failed to give them due weight and has, after a cursory consideration of the oral evidence, preferred the oral evidence of the defence witnesses and dismissed the complaint on the ground that accused 1 and 2 are in possession.

The main ground of attack against the judgment by the learned counsel for the complainant is that the learned Magistrate has failed to attach due weight to the record of delivery followed by the registered lease deed admitting that the complainant obtained actual possession of the property in pursuance of the court delivery, and that, in appreciating the oral evidence, the Magistrate has failed to keep in mind the principle that criminal courts ought to attach due weight to delivery records. I think, the attack is well founded. The learned Magistrate seems to have placed reliance on the decisions reported in Madhavan Pillai v. Narayana Pillai (XXXIV T. L. J. 292) and Raman Nair v. Kochu Lebba (1950) 5 D. L. R. (Travancore-Cochin) 262) to brush aside the delivery record. Madhavan Pillai v. Narayana Pillai (XXXIV T. L. J. 292) only laid down the proposition that where the bona fides of the court delivery is impeached and the party contends that there was no actual transfer of possession as shown by the delivery record and he is in possession, it is the duty of the court to determine the question of actual possession notwithstanding the record of delivery. But that decision itself lays stress on the fact that in doing so due weight must be given to the delivery record. The other decision namely, Raman Nair v. Kochu Lebba ((1950) 5 D. L. R. (Travancore-Cochin) 262) dealt with a civil matter and the learned Judges observed therein that:

When the Court ordered actually delivery of the properties it has light to see whether the Amin acted or could have acted accordingly and that if due to fraud or any bona fide mistake actual delivery could not have been effected it was a matter for the court to enquire into in spite of a report to the contrary.

Evidently a later decision of the Travancore-Cochin High Court in Velayudha Kurup v. State (1953 K. L. T. 31) and the decision of this Court in Ammad Haji v. Kunhamboo (1959 K. L. R. 491) were not brought to the notice of the Magistrate. Ammad Haji v. Kunhamboo (1959 K. L. R 491) was a case where the learned Magistrate in appreciating the oral evidence in a similar case of criminal trespass failed to keep in mind the principle that criminal courts ought to attach due weight to the record of delivery in deciding whether actual possession passed under the record and the order of acquittal was interfered with on that ground. In Velayudha Kurup v. State (1953 K. L. T. 31) Koshi C.J. held that:

Except in the case of symbolic delivery when a court effects a delivery to a decree-holder or to a court auction-purchaser the court really puts such person in physical possession of the property delivered. Its effect is not merely to dispossess the judgment-debtor but also other persons in possession who if aggrieved will have to seek remedy under the provisions enacted in O. XXI of C. P. C. or to bring a fresh suit to recover possession.

The decision was followed by me in Sadasivan Pillai v. State (1959 K. L. T. 501).

In the present case, as mentioned earlier, besides the record of delivery which shows that the Devaswom was put in actual possession of the property there is also an admission made by accused 1 to 3 in Ext. P. 1 lease deed that the Devaswom had come into possession of the property in pursuance of the delivery kychit. It is not easy for the accused to brush aside the admission made by them in the registered lease deed by a bald statement that the lease deed was brought into existence fraudulently. The learned Magistrate has not considered the real effect of the execution of the lease deed or the merit of the plea put forward by the accused to circumvent the admission contained therein. I am of the view that the case must go back to the Magistrate for fresh appreciation of the evidence in the light of the principles enunciated above. In the nature of the disposal it is not proper for me to express any opinion as to the comparative merits of the oral evidence let in by the parties. In the result the order acquitting the respondents is set aside and the case is sent back for fresh disposal in accordance with law and in the light of the observations made above.