Kerala High Court
Poulose vs Ulahannan, (Died) on 2 November, 2024
RSA No.517 of 2010
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
SATURDAY, THE 2ND DAY OF NOVEMBER 2024 / 11TH KARTHIKA, 1946
RSA NO. 517 OF 2010
AGAINST THE JUDGMENT&DECREE DATED 04.02.2009 IN AS NO.48 OF 2008 OF
SUB COURT, PERUMBAVOOR ARISING OUT OF THE JUDGMENT&DECREE DATED 21.12.2006
IN OS NO.348 OF 2000 OF MUNSIFF COURT, PERUMBAVOOR
APPELLANT/APPELLANT/2ND PLAINTIFF:
POULOSE
AGED 43 YEARS
AGED 43,S/O.KURU, PAROOKKARAN HOUSE, MORAKKALA WEST KARA,
KUNNATHUNADU VILLAGE.
BY ADV. RAJENDRAN(PERUMBAVOOR)
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 ULAHANNAN, (DIED)
AGED 86, PAROKKARAN HOUSE, MORAKKALA WEST KARA, KUNNATHUNADU
VILLAGE.(LRS IMPLEADED]
2 THOMAS, S/O.ULAHANNAN,
PAROOKKARAN HOUSE,MORAKKALA WEST KARA,, KUNNATHUNADU
VILLAGE.
3 YACOB, S/O.VARKEY,POYIKATTIL HOUSE,MORAKKALA WEST KARA,,
KUNNATHUNADU VILLAGE. [DELETED]
4 SUSAN, W/O.YACOB,POYIKATTIL HOUSE,MORAKKALA WEST KARA,,
KUNNATHUNADU VILLAGE.[DELETED]
[RESPONDENTS 3 AND 4 ARE DELETED FROM THE PARTY ARRAY AS PER
RSA No.517 of 2010
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ORDER DT 14.11.2019 IN I.A. NO. 2/2019]
ADDL.R5 MARIAMMA, KALLINGAL HOUSE, PERINGALA KARA,
KARIMUGAL P.O.-683 565.
ADDL.R6 ELAMMA,W/O.O.K.PAILY, OLIKKAL HOUSE, CHALIKKARA KARA,
KARIMUGAL P.O., 682 303.
ADDL.R7 ANNAMMA,OLANGATTU (PARAYIL) HOUSE, PERINGALA, KARIMUGAL
P.O., -683 565. (LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE
IMPLEADED AS ADDL.RESPONDENTS 5 TO 7 AS PER ORDER DATED
25.09.2019 IN IA.1326/2011.)
BY ADVS.
R2 BY ADVS.Vinod Bhat S
ANAGHA LAKSHMY RAMAN(K/000767/2015)
V.NAMITHA(K/1090/2011)
R3 AND R4 BY ADV. BIJU ABRAHAM
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD 30.10.2024, THE
COURT ON 02.11.2024, DELIVERED THE FOLLOWING:
RSA No.517 of 2010
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JUDGMENT
1. The Second Plaintiff, who is the son of the deceased plaintiff in
O.S.No.348 of 2000 of the Munsiff's Court, Perumbavoor, is the
appellant. Suit was originally filed for declaring the rights of the
plaintiff over the plaint schedule property, for recovery of the plaint
schedule property from the defendants and for permanent
prohibitory injunction restraining the defendants and his agents
from trespassing into the plaint schedule property. The plaint
schedule property was originally 30 cents of land in Survey
No.447/11 of Kunnathunadu Village which is included Re-survey
No.127/25 of Block No.36. Originally, there were only two
defendants in the suit.
2. As per plaint allegations the plaint schedule property is a part of
the property obtained by the father of the plaintiff as per Ext.A3
Partition Deed of the year 1099 M.E. The plaintiff is residing on the
southern side of the plaint schedule property along with her elder
son. Plaintiff was the only son of his father Chacko. Chacko died
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intestate with respect to the plaint schedule property and the plaint
schedule property devolved upon the plaintiff. The father of the first
defendant is the brother of the plaintiff's father. The second
defendant is the son of the first defendant. The father of the
defendant also obtained properties as per the very same Ext.A3
Partition Deed of the year 1099 M.E. After the death of the father
of the first defendant, first defendant along with his siblings have
been enjoying their properties. The property obtained by the first
defendant is situated on the northern side of the plaint schedule
property. Since there was no suitable house site in the property
allotted to the share of the defendants, on the request of the first
defendant, plaintiff's surrendered 5 cents of land to the first
defendant. The first defendant constructed a house in the said 5
cents of land. The plaint schedule property is comprised in Survey
No.447/11 and it belonged to the plaintiff absolutely. But in the re-
survey the plaint schedule property was mistakenly shown in the
Thandaper of the defendants. The plaintiff attempted to correct the
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mistake in re-survey by submitting petitions. On the strength of the
mistake in the re-survey, the defendants trespassed into the plaint
schedule property and constructed a shed in the northern portion
of the plaint schedule property.
3. When the plaintiff came to know that the defendant Nos.1 & 2
executed Ext.A5 Sale Deed selling 15 cents which includes portion
of the plaint schedule property to the defendant Nos.3 & 4, the
plaintiff amended the plaint by impleading defendant Nos. 3 & 4
and by including the prayer for declaration that Ext.A5 Sale Deed
is void with necessary supporting averments. The plaintiff further
amended the prayers in the Plaint to include a declaration of title
of the plaint schedule property and seeking fixation of boundaries
of the plaint schedule property separating it from the 5 cents of
land, which is situated on its north-eastern side. After obtaining the
Commission Report, the extent of the plaint schedule property was
amended to 27.750 cents instead of 30 cents. As per the amended
Schedule, the plaint schedule property is having an extent of
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27.750 cents of dry land which is a part of 32.750 cents of land
situated in Old Sy. No.447/11 after excluding 5 cents on its north-
eastern corner.
4. The defendants 1 to 4 filed joint Written Statement contending,
inter alia, that the father of the plaintiff derived the plaint schedule
property along with other properties as per Ext.A3; that the father
of the plaintiff sold 71 cents in Sy.No.443/1E to one Ouseph
Varkey about 70 years back; that Ouseph Varkey sold the said
property to one Chacko and his wife Mariam about 60 years back;
that the said property was purchased by the 1st defendant and his
wife as per Ext.B10 Sale Deed of the year 1964; that the wife of
the 1st defendant died; that the defendants 1 and 2 sold 15 cents
to defendants 3 and 4 as per Ext.A5 Sale Deed of the year 2000;
that the balance 56 cents of land is in the possession of defendants
1 and 2; that the plaintiff has filed the suit including the said
property in the plaint schedule showing the common survey and
boundaries with mala fide intentions; that the plaintiff has no right
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over the said 56 cents of land ; that the father of the plaintiff and
the father of the 1st defendant were brothers; that the father of the
1st defendant derived 73 cents in Sy.No.443/1E 1 acre 66 cents in
Sy.No.447/11 & 19 cents in Sy.No.447/8; that the 1st defendant
had received compensation for cutting improvements in the plaint
schedule property on account of the drawing of electric line in the
year 1975; that the 1st defendant had obtained loan from
Ernakulam Cooperative Agricultural Development bank on the
security of the plaint schedule property and hence the plaintiff is
not entitled to get any reliefs.
5. The Trial Court dismissed O.S.No.348/2000 by judgment and
Decree dated 21/12/2006, holding that the plaintiff failed to prove
and establish title over the plaint schedule property and, hence,
the plaintiff was not entitled to get recovery of possession of the
plaint schedule property.
6. The plaintiff filed an Appeal before the First Appellate Court as A.S
No.48/2008, and the same was dismissed by the First Appellate
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Court by judgment and Decree dated 04/02/2009 confirming the
Judgment and Decree passed by the Trial Court. The First
Appellate Court found that the description of the plaint schedule
property in Ext.A3 is not correct; that the entire property in Ext.A3
property is not identified; that the identity of the plaint schedule
property is not established; that Ext.B6 will show that 1st defendant
received compensation for the trees cut down from the property in
Sy.No.447/11 in the year 1971; that the Advocate Commissioner
categorically reported that the total extent of the property
comprised in Sy. No.443/1E covered by Ext.A3 is only 88.5 cents,
and hence the recital in Ext.A3 document regarding the extent of
the property is not reliable within a compound boundary, and the
appellant did not produce any Land Tax Receipt to show that he is
paying basic tax for the plaint Schedule property.
7. Since there was a delay in filing the appeal, notices were served
on the respondents, and the respondents 2 to 4 appeared. During
the pendency of the Appeal, the 1st respondent/1st defendant died,
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and his other legal heirs are impleaded as additional respondents
5 to 7.
8. During the pendency of the Regular Second Appeal the dispute
between the Appellant and Respondents 3 & 4 who are the plaintiff
and the defendants 3 and 4 is settled in mediation and they
executed a Mediation Agreement dated 31/10/2019 with respect
to the 15 cents of land covered by Ext.A5 and it is agreed that
appellant relinquishes all his claims over 6.07 Ares of land
belonging to the respondents 3 and 4 as per Ext.A5 Sale Deed
No.3517/2000 of SRO Puthencruz; that the respondents 3 & 4 will
be entitled to get transfer registry of the properties covered by
Ext.A5 document in their names in the revenue records and the
appellant has absolutely no objection for the same; and that the
respondents 3 & 4 are having absolute and saleable title over the
properties. On the basis of the Mediation Agreement
dt.31.10.2019, this Court passed order dt 14.11.2019 deleting
respondents 3 and 4 from the party array and recording the
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abandonment of the claim of the appellant with respect to the said
6.07 Ares of property, which is covered by Ext.A5 Sale Deed from
out of the Plaint Schedule.
9. This Court admitted the Regular Second Appeal on 29/10/2024
formulating the following substantial questions of law.
Whether the Trial court as well as the First Appellate Court are justified in
non suiting the plaintiff when it is found that Ext.B10 property does not take
in the plaint schedule property as per Ext.C3(a) and Ext.C4(a) Plans.
10. I heard the learned Counsel for the appellant Sri.V Rajendran
(Perumbavoor) and the learned Counsel for the 2nd respondent
Sri.S.Vinod Bhat.
11. The learned Counsel for the appellant argued that the father of the
plaintiff and the father of the 1st defendant derived properties as
per the very same Partition Deed of the year 1099 which is
produced as Ext.A3 in the suit. In the Written Statement, the
defendants specifically admitted that the plaint schedule property
is derived by the father of the plaintiff along with other properties
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as per Ext.A3 Partition Deed. The father of the 1 defendant had
st
not derived any property in Sy No.447/11 in Ext.A3. The contention
of defendants 1 and 2 is that the plaint schedule property is a part
of the property derived by the 1st defendant and his wife as per
Ext.B10 document. The property covered by Ext.B10 is in Sy.No.
443/1E, which was originally sold by the father of the plaintiff to
One Ouseph Varkey, who sold the same to one Chacko and his
wife Mariam, and the same was purchased by the 1st defendant
and his wife as per Ext.B10. The case of the defendants 1 and 2
is that 15 cents out of the said 71 cents is sold to defendants 3 and
4 as per Ext.A5, and they are in possession of the balance of 56
cents of land, and the plaint schedule property is a part of the said
56 cents of land. The Advocate Commissioner has specifically
found in Ext.C3(a) and C4(a)plans that the Plaint Schedule
Property is not a part of the property covered by Ext.B10. The Trial
Court as well as the First Appellate Court acted illegally in not
decreeing the suit since admittedly the plaint schedule property is
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a part of the property derived by the father of the plaintiff as per
Ext.A3 Partition deed and when it is proved that it is not a part of
71 cents of land covered by Ext.B10.
12. On the other hand, the counsel for the 2 respondent argued that
nd
the plaint schedule property is not properly identified by the
Advocate Commissioner. As per Ext.A3 the father of the plaintiff
derived 1.63 Acres in Sy.No.447/11 out of the total extent of 2.11
acres. The plaintiff ought to have identified the said 1.63 acres of
land in Sy.No.447/11 and ought to have proved before the Court
that the plaint schedule property is a part of the said 1.63 acres of
land. It is proved by Ext.B6 that the 1st defendant and his wife
received compensation from the Electricity Board for drawing
electric line through the plaint schedule property in the year 1975.
At any rate, defendants 1 and 2 have perfected their title over the
plaint schedule property on the basis of adverse possession.
Since, the plaintiff appellant is accepting the title of the defendants
3 and 4 by relinquishing the claim against them, the plaintiff is
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impliedly accepting the title of defendants 1 and 2 over the plaint
schedule property since defendants 3 and 4 purchased part of the
plaint schedule property as per Ext.A5 from the defendants 1 and 2.
13. I have considered the rival contentions.
14. The plaintiff claims title over the plaint schedule property on the
strength of Ext.A3 Partition Deed by which the father of the plaintiff
derived the plaint schedule property along with other properties.
As per Ext.A3 Partition Deed, the father of the plaintiff derived 1.63
acres of land in Sy. NO. 447/11 of Kunnathunadu Village. The
father of the 1st defendant also derived properties as per Ext.A3
Partition Deed. The defendants have no case that the father of the
1st defendant derived any property in Sy.No. 447/11. It is
specifically admitted in the Written Statement filed by defendants
1 to 4 that the plaint schedule property is a part of the property
derived by the father of the plaintiff as per Ext.A3 Partition Deed
along with other properties. In view of the said admission in the
Written Statement, the plaintiff has no burden to prove that the
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plaint schedule property is a part of the property derived by the
father of the plaintiff as per Ext.A3. The plaintiff's title over the
plaint schedule property is proved and remains unaffected, if the
plaint schedule property is not covered by Ext.B10 Sale Deed. The
specific case of defendants 1 to 4 is that the plaint schedule
property is a part of 71 cents of land sold by the father of the
plaintiff, which ultimately came into the ownership and possession
of the 1st defendant and his wife as per Ext. B10. The plaintiff does
not dispute the transfer of the said 71 cents by the father of the
plaintiff and that it is covered by Ext.B10. The said 71 cents of land
is situated in Sy. No.443/1E whereas the plaint schedule property
is situated in Sy. No.447/11. Exts.C3(a) & C4(a) Plans are
prepared by the Taluk Surveyor, Kunnathunadu in which
properties are measured according to the old survey. The property
has an extent of 71 cents in Sy.No.443/1E covered by Ext.B10 is
clearly identified by the Taluk Surveyor as Plots Nos.4 and 5 in
both the Plans. The larger extent stated in the Plaint Schedule
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having 32.750 cents in Sy. No.447/11-1 is identified as Plots No.1
& 2 in Ext.C3(a) and Plots. Nos. 1, 2 & 6 in Ext.C4(a). The
difference between Ext.C3(a) Plan and Ext.C4(a) Plan is that Plot
No.6 which is stated to be the 5 cents surrendered by the plaintiff
to the 1st defendant on the northeastern corner of the above 32.750
cents is separately shown in Ext. C(4)(a). The said 32.750 cents
in Sy.No.447/11-1 is situated outside Ext.B10 property on its
south-eastern side. If the said 5 cents in Plot No.6 is excluded from
Plots Nos. 1 and 2 in Ext.C4(a), the extent of Plot Nos.1 & 2 will
come to 27.750 in Sy. No.447/11, which is shown as the plaint
schedule property. The properties sold to defendants 3 and 4 are
shown as Plots Nos.2,3 and 6 in Ext.C4(a). Plot No.3, having an
extent of 4 cents, was the property belonging to defendants 1 and
2 in Sy.No.443/1C. Plot No.6 is the 5 cents said to be surrendered
by the plaintiff to the 1st defendant. Plot No.2, having an extent of
6 cents, is a part of the plaintiff's schedule property of 27.750
cents. It would indicate that defendants 3 and 4 possess Plot No.2,
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having an extent of 6 cents as per Ext.A5, which is a part of the
Plaint schedule property of 27.750 cents. The claim with respect
to Plot No.2 having an extent of 6 cents in Ext.C4(a) Plan is
relinquished by the plaintiff. Hence, the claim of the plaintiff is
limited to 21.750 cents, which is Plot No.1 in Ext.C4(a). On going
through Exts.C3(a) & C4(a) Plans, the Taluk Surveyor has
correctly identified the Plaint Schedule property and the property
of Defendants 1 & 2 as per Ext.B10. The Plaint Schedule Property
is situated outside the property covered by Ext.B10 on the basis of
which the defendants 1 &2 claim title over the Plaint Schedule
property. Since the Plaint Schedule property is situated outside
Ext.B10 property, the plaintiff's father will not lose his title over the
Plaint Schedule property, which he derived as per Ext.A3, which is
admitted by defendants 1 & 2. Hence, I conclude that the plaintiff
has proved his title over the plaint schedule property, and the plaint
schedule property is correctly identified.
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15. Though the defendants have raised a claim that their title over the
plaint schedule property is perfected by adverse possession, there
is nothing on record to prove their possession over the plaint
schedule property for a long period other than Ext.B6 in which it is
stated that the 1st defendant and his wife received compensation
for cutting trees from property situated in Sy. No.443 and 447 in
the year 1971. Ext.B6 Certificate is dt. 06.01.2003. It does not
reveal that the 1st defendant and his wife received compensation
with respect to property covered by Sy. No. 447/11. Even if they
have received compensation from the Electricity Board with
respect to the plaint schedule property that would not in any way
prove their possession over the plaint schedule property. Even
though defendants 1 and 2 have produced Exts.B2, B3, B4, and
B5 land Tax Receipts, it does not include the plaint schedule
property situated in Sy. No.447/11. The 1st defendant started
paying tax with respect to the Plaint Schedule property after
the resurvey when the Plaint Schedule Property was included in
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Resurvey No.127/25. It is pertinent to notice that the specific case
of the plaintiff is that the 1st defendant started claiming the plaint
schedule property when it was wrongly included in his name in the
Resurvey. It is on record that the plaintiff submitted Application for
correction of mistake in the resurvey in Survey Adalath on
25/08/2000. (It is accepted in evidence but wrongly marked as
Ext.A3). It probabilize the case of the plaintiff that defendants 1
and 2 started claiming the plaint schedule property when it was
wrongly included in the name of the 1st defendant in Re.Sy.
No.127/25. It is a settled law that resurvey cannot change the title
of the landowners. It is a settled law that the plea of adverse
possession is maintainable only if the defendant admits the title of
the plaintiff. Here defendants 1and 2 do not admit the title of the
plaintiff and hence defendants 1 and 2 could not legally raise the
plea of adverse possession.
16. The next contention of the 2nd respondent is that the plaintiff
impliedly accepted the title of defendants 1 and 2 over the plaint
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schedule property when he relinquished his claim against the
property covered by Ext.A5, since defendants 3 and 4 purchased
part of the plaint schedule property as per Ext.A5 from the
defendants 1 and 2. When a property is encroached by the
defendants, the plaintiff is free to relinquish a part of the property,
and there is no legal impediment for him to proceed against the
balance property. In the case on hand also, the relinquishment of
the plaintiff against the property purchased by defendants 3 and 4
would not in any way affect the right of the plaintiff to recover the
balance property encroached by defendants 1 and 2 from them.
Since the plaintiff has relinquished his claim against defendants 3
and 4, the plaintiff is entitled to recover Plot No.1, which is shown
in orange color in Ext.C4(a) plan from defendants 1 and 2. Plaintiff
is entitled to fix the northern and eastern boundaries of Plot No.1
in accordance with Ext.C4(a) Plan.
17. In view of the above discussion, the substantial question of law
framed in this appeal is answered in the negative and in favour of
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the appellant. This Regular Second Appeal is allowed with costs
setting aside the judgments and decrees passed by the Trial Court
as well as the First Appellate Court and OS No. 348/2000 of the
Munsiff's Court Perumbavoor is decreed in part declaring the title
of the plaintiff over Plot No.1 shown in orange colour in Ext.C4(a)
Plan, allowing fixation of the northern and eastern boundaries of
the Plot No.1 in accordance with Ext.C4(a) Plan and allowing the
plaintiff to recover possession of the said Plot No.1 from the 2nd
defendant and the additional respondents 5 to 7 in this appeal who
are the legal heirs of the deceased 1st defendant. Ext.C4(a) shall
form part of the decree.
Sd/
M.A.ABDUL HAKHIM
JUDGE
jma
