Mavath Krishnan Marrar vs Madiyan Appu

P. Bhavadasan, J.—The Plaintiff in O.S. 504 of 1992, who was non-suited by the lower appellate court has come up in appeal.

The suit was one for recovery of possession on the strength of title. He claimed the plaint schedule property on the basis of Ext.A3 dated 17.12.1951. Plaint schedule property has an extent of 8 cents, which is a portion of a larger extent of 90 cents comprised in Sy. No. 195/12B1. Ext.A4 is the assignment deed in favour of the second Defendant which includes the plaint schedule property also. The Plaintiff was engaged in several rounds of litigation in an attempt to protect the property thwarting the attempts of the neighbours to grab portions of his property. According to the Plaintiffs, the Defendants have created fraudulent documents and have tried to trespass into the plaint schedule property. The first Plaintiff had instituted O.S. 204 of 1990 against the Defendants. It was found in the said suit that the dispute related only regarding plot C and the suit was dismissed on the first Plaintiff''s failure to prove possession of the suit property. The allegation is that soon thereafter the Defendants trespassed into plaint B schedule property. On the basis of these allegations the suit was laid.

The Defendants resisted the suit. They pointed out that the first Plaintiff was never in possession of 90 cents of land as claimed by him. They disputed that the suit property is a portion of Ext.A3 deed. According to them the suit property along with 2 cents on its western side is in the possession of the second Defendant. Defendants 1 and 2 were in joint possession of 20 cents in Resurvey No. 195/12B1 of Pilicode Village on leasehold right. Out of the said extent the first Defendant purchased kudikidappu in respect of 10 cents as per B1 dated 24.6.1970. Thereafter the first Defendant gifted 10 cents to the third Defendant. Later the third Defendant sold the property to the fourth Defendant. The remaining 10 cents belonging to the second Defendant is situated on the eastern side of the other 10 cents. It is contended that in O.S. 204 of 1990 there was no proper identification of the property and the claim is that the kudikidappu which is situated on the western side is included in the document of title on which the Plaintiffs rely. On the basis of these contentions, they prayed for a dismissal of the suit.

On the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A22 from the side of the Plaintiffs. The Defendants examined D. Ws. 1 and 2 examined and had Exts.B1 to B4 marked. Exts.X1 and X2 are the commission report and plan in O.S. 204 of 1990.The trial court on an appreciation of the evidence came to the conclusion that the Plaintiffs have been successful in establishing their case and granted a decree in their favour.

The Defendants took up the matter in appeal as A.S.26 of 1994 before the Sub Court, Hapsburg. The lower appellate court took a different view and reversed the judgment and decree of the trial court and dismissed the suit.

Notice is seen issued on the following questions of law:

(a) Has not the appellate court erred in assuming that Plaintiff''s predecessor Koran might have created a tenancy in favour of the 2nd Defendant (a case which the 2nd Defendant herself did not put forward) and is not the finding of the appellate court vitiated on account of this erroneous assumption.

(b) When it is evident from the court records that the plaint in O.S. 244/78 is not available is not the appellate court wrong in stating that the Plaintiff has suppressed the plan and is not the further finding that the non-production is fatal to the case of the Plaintiff vitiated on this account.

(c) is not the finding that 2nd Defendant was in possession of the suit property as a kudikidappukari contrary to the evidence adduced and materials on record.

(d) Has not the appellate court erred in approaching the dispute between the parties and is not the finding contrary to the evidence and pleadings of the instant case.

(e) Is not the finding of the appellate court regarding adverse possession contrary to the settled principle of law on the point and the evidence adduced in the instant case.

Learned Counsel appearing for the Appellants pointed out that the main contention of the Defendants was that they have perfected title by adverse possession and limitation. If that be so, the title of the Plaintiffs stands admitted and the burden was on the Defendants to prove adverse possession and limitation. Learned Counsel contended that the trial court had appreciated the evidence in the proper perspective and found that B schedule property is a part of plaint A schedule property and the Plaintiffs are entitled to recover the same. The lower appellate court, according to learned Counsel, has not appreciated the evidence properly and has erred itself in coming to the conclusion that plot C in Ext.A6, on which reliance is placed by both the courts below, is not shown to be a part of the property obtained by the Plaintiffs under Exts.A3 and A4. The reasons given by the lower appellate court for coming to such a conclusion, according to learned Counsel, are unsupportable on facts and evidence in the case. According to learned Counsel there are no grounds to interfere with the finding of the trial court and the judgment and decree of the trial court ought not to have been reversed.

Learned Counsel appearing for the Respondents on the other hand contended that the lower appellate court has properly appreciated the evidence in the case and has come to the conclusion that the Plaintiffs have not been able to prove their title and possession over plot C in Ext.A6. The lower appellate court has come to the conclusion that the predecessor in interest of Plaintiffs had retained a portion of the property on the southern side and that property later came to vest with the Defendants. The lower appellate court has given cogent reasons for arriving such a conclusion and there is no error in the appreciation of evidence. At any rate, according to learned Counsel, the findings are pure findings of fact and no substantial question of law arises for consideration.

There was an earlier round of litigation between the same parties. That is evident from Ext.A8 which the copy of the judgment in O.S. 204 of 1990. That was a suit for injunction. Finding that the Plaintiffs had not been successful in proving his possession, the suit was dismissed. Immediately thereafter the present suit was filed.

Before going further into the issues involved in the case, it will be useful to see how the Plaintiffs trace their title. Ext.A1 dated 15.9.1951 was executed by Madhavi and Kannan in favour of Koran. The property was outstanding on lease. The total extent of property is 1.74 acres and the description is.By Ext.A2 dated 21.1.1951 Koran, out of 1.74 acres obtained by him as per Ext.A1 assigns the western 90 cents to Raman. One may note the boundaries shown in Ext.A2. On the eastern and northern sides are the properties released by Raman on the southern side is Thevarkunnam paramb and property released by Raman and on the western side is the Kila. One thing becomes quite evident and that is the Kila which is shown as the western boundary does not form part of 90 cents assigned as per Ext.A2. It is clear that the Kila is the western boundary of the 90 cents assigned as per Ext.A2. It is also evident that the property assigned as per Ext.A2 lies sandwiched between the property which has come into the possession of Koran. By Ext.A3 dated 17.12.1951 Raman assigned the property covered by Ext.A2 to Krishna Marar. In this document the boundaries are not separately mentioned and it mentions that the boundaries are the same as in Ext.A2. Ext.A4 dated 20.10.1965 is the jenm assignment deed for 70.47 acres in Sy. No. 195/12B1 by Govindan in favour of the second Plaintiff.

The Defendants'' case is that he had taken 20 cents on the southern side of the property owned by Koran on lease and are entitled to fixity of tenure. The first Defendant had obtained Ext.B1 purchase certificate dated 24.6.1970 of kudikidappu right. The location plan is attached to the purchase certificate. Going by the sketch appended to the purchase certificate it is seen that kudikidappu lies on the south western side of the property comprised in Sy. No. 195/2B1. 10 cents immediately on the eastern side is also claimed to be in the possession of the Defendants. They say that the Plaintiffs have no title and possession over the said property.

The trial court in negativing the claim of the Defendants held that there was nothing to show that 20 cents was taken on lease by the Defendants. If as a matter of fact 20 cents was taken as lease, it is quite improbable that purchase certificate would have been obtained in respect of 10 cents. There was no explanation offered as to why no purchase certificate was obtained from the Land Tribunal in respect of the balance 10 cents. The lower appellate court on the other hand came to the conclusion that the property owned by Kumba can only be in Sy. No. 195/12B1 which lies on the southern side of Sy.No. 195/12B1A. However, the lower appellate court felt that in all probability the Defendants could have taken 20 cents of land from Koran since Koran had property on the southern side of the property assigned to the Plaintiffs.

One fact has to be noticed. Plaint schedule item No. 1 is shown as 90 cents and plaint item No. 2 is shown as 8 cents, which is shown as part of the large item.These items have been identified in O.S. 244 of 1978 and O.S. 204 of 1990. Unfortunately the plan prepared by the Commissioner in O.S. 244 of 1978 is not now available. The appellate court found fault with the Plaintiffs for not having produced the said plan and report.

It is significant to notice that the commissioners in both the cases i.e, O.S. 244 of 1978 and O.S. 209 of 1990 were examined as D. Ws.1 and 2. The commissioner in O.S. 244 of 1978 deposed that he is unable to give all the details in the absence of the plan appended to the report. Ext..A5 is the commission report and Ext.A6 is the plan in O.S. 204 of 1990. The definite case of the Defendants is that the Kila is on the western side of the property assigned as per Ext.A3. According to the Defendants if the the Kila is included in the property assigned to the Plaintiff, then 8 cents over which now claim is laid by the Plaintiffs will not come within the property covered by Ext.A3.

The Defendants seem to have obtained purchase certificate in respect of 10 cents in Sy. No. 195/12B1 situate on the south western corner of 90 cents as could be seen from Ext.A6 plan. 8 cents which is the subject matter of dispute is located on the eastern side of the property covered by Ext.B1. The commission report is clear to the effect that 90 cents obtained by the Plaintiffs in Sy. No. 195/12B1 will include the disputed 8 cents also.

Going by Exts.A5 and A6 the southern boundary of the Plaintiffs'' property is Devarkunnu and the property of Koran. Exts.X1 and X2 are the commission reports in O.S. 244 of 1978. The said reports mentioned that one Kumba has property on the southern side of the property. This aspect is highlighted by the Defendants in support of their contention. They say that the property in possession of Kumba is the property now sought to be recovered.

The trial court after an evaluation of the evidence came to the conclusion that Kumba''s property can only be in Sy. No. 192/1 which is known as Devarkunnu. The lower appellate court also found that Kumba had property on the southern side. Then relying on Ext.B3 series of documents by which tax is shown to have been paid the appellate court came to the conclusion that the Defendants have remitted tax for 20 cents and they are in actual possession of the same. That according to the lower appellate court forms part of the suit property.

Ext.B1 is the purchase certificate obtained by the first Defendant in respect of 10 cents as kudikidappu. In the proceedings before the Land Tribunal Koran is shown as the landlord. As already noticed, a sketch is appended to the purchase certificate. Unfortunately the boundaries are not shown. The lower appellate court was solely guided by Ext.B3 series of documents, which are tax receipts. Ext.B3 dated 27.6.1972 is only for 10 cents. Ext.B3(a) to Ext.B3(m) are long after 1974 when dispute between the parties have arisen. It can be seen from Ext.A10 that the Plaintiffs were asserting right over 90 cents from 1968 onwards.

One may recall here that the definite stand of the Defendants was that they had obtained 20 cents on lease from Koran. The details of the lease are conspicuously absent. It looks strange that if actually the defendants had obtained 20 cents they would have confined their purchase certificate to 10 cents. There was no attempt to get a purchase certificate from the Land Tribunal in respect of the balance 10 cents which they claim to possess. They are unable to offer any explanation in this regard. As already observed, 90 cents of property over which the Plaintiffs lay claim was identified as per Exts.A5 and A6. The trial court observed that there was not much dispute regarding the identity before the trial court. It was accepting Exts.A5 and A6 that the Plaintiff was non-suited in O.S. 244 of 1978. It was found in the said suit that on the southern side and eastern side of C plot shown in the plan there are ridges. Therefore the court went on to hold that the Plaintiff in O.S. 244 of 1978 was not able to show that the property lying on the southern side of the ridges is in his possession. On the other hand that was lying contiguously with the plot owned by the first Defendant in that suit. The court went on to hold that going by the nature and lie of the properties, it could not be held that the Plaintiff in the said suit was in possession of 8 cents that lie separately contiguous of the 10 cents obtained by the first Defendant. Exts.A5 and A6 are clear to the effect that plots A and C together constitute 90 cents over which the Plaintiffs lay claim.

It is therefore clear that 8 cents shown as C schedule in Exts.A5 and A6 form part of the property covered by Ext.A3. Therefore the title of the Plaintiffs over item No. 2 stands proved.

Quite shockingly the lower appellate court then goes on to hold that even if the Plaintiffs had title to 8 cents, they have lost it by adverse possession and limitation.

The only contention which the Defendants had was that the kila on the western side forms part of the Plaintiffs'' property.

But as already noticed, Ext.A3 is the document by which the Plaintiffs obtained the property covered by Ext.A2. At the risk of repetition, one may notice that it is mentioned in Ext.A3 that boundaries are the same as in Ext.A2 and in Ext.A2 the western boundary is shown as Kila.

The trial court considered the plea of adverse possession and limitation and found against the Defendants. However, the lower appellate court goes in favour of the Defendants. There is a plea in the written statement of the Defendants that even if the Plaintiffs had any title, that has been lost by adverse possession and limitation. It is interesting to note that no evidence whatsoever was adduced by the Defendants in support of their plea of adverse possession and limitation. The appellate court goes on to say that the Defendants are in possession from 1972 and they have perfected their title by adverse possession and limitation. However, the lower appellate court has totally ignored that in order to succeed in a plea of adverse possession and limitation, there has to be clinching evidence and it is not a matter for presumption. None of the Defendants have entered the box to speak in terms of the claim of adverse possession and limitation. There is nothing to show that the Defendants have dealt with the disputed item of property as their own in derogation of the right of the Plaintiffs. One fails to understand how in the absence of evidence from the side of the Defendants it could have been held by the lower appellate court that the Defendants have perfected title by adverse possession and limitation. The said finding obviously cannot stand. It follows that the lower appellate court was not justified in coming to the conclusion that the Plaintiffs have failed to prove their own title with respect to item No. 2 which is shown to have an extent of 8 cents. The said 8 cents had been identified going by Exts.A5 and A6. The trial court on a careful analysis of the evidence came to the conclusion that the Plaintiffs have succeeded in establishing their case.

A reading of the judgment of the lower appellate court would indicate that it is based more on conjunctures and surmises rather than evidence in the case. Finding regarding adverse possession and limitation entered into by the lower appellate court is without any evidence in that regard by the Defendant. There was no justification for the lower appellate court to have interfered with the judgment and decree of the trial court which has considered all the aspects and has come to the conclusion that the Plaintiffs have succeeded in establishing his title to plaint item No. 2 and that the Defendants have failed to prove adverse possession and limitation.

In the result, this appeal is allowed, the impugned judgment and decree are set aside and the judgment and decree of the trial court are restored. There will be no order as to costs.