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1966 DIGILAW 42 (KER)

Meenakshi Amma v. Eappen

1966-02-03

M.MADHAVAN NAIR

body1966
Judgment :- 1. This appeal is by the plaintiffs in a suit for declaration or title and recovery of property. According to the plaintiffs, the suit property, comprising 3 acres 82 cents in S. No. 318/1 of Kozhimukku Village and the contiguous north-western 2 acres 18 cents of S. No. 317/1, 6 acres in cumulo, formed part of their ancestors' purchase under Ex. D in 1055 M. E. and have been allotted to them in their family partition evidenced by Ex. VI dated 26 91101; but the pattah for the property had been mistakenly issued in favour of the 4th defendant's tarwad which mistake came to their knowledge only in 1116 when the 2nd defendant, having taken a conveyance from the 4th defendant, tried to take forcible possession of the property. Summary proceedings instituted by the plaintiffs under Chapter XII of the Criminal Procedure Code having ended in favour of the 2nd defendant, they have instituted the present suit for declaration of their title to and recovery of the property with all the profits collected by the receiver appointed by the Magistrate, and further mesne profits if the defendants assume possession from the receiver. Defendants 1 and 4, the latter being the wife of the former, contended that the suit property formed part of the properties of the 4th defendant's tarwad, that at the Settlement, pattah had been rightly issued to the tarwad, that in partition of the tarwad evidenced by Exs. G and H of the years 1092 and 1114 the suit property and contiguous lands had been allotted to the 4th defendant, who assigned them under Ex.J to the 3rd defendant from whom the 2nd defendant has purchased them under Ex. X and that thus the suit property belongs to her and was in her possession till the receiver in the summary proceedings assumed possession thereof. The Subordinate Judge found the suit property involved in Exs. D and VI to belong to the plaintiffs and in the possession of the plaintiffs' lessees till the receiving order of the Magistrate and therefore decreed the suit. On appeal, the District Judge reversed him, holding that the suit (property was not included in Ex. D or Ex. VI but was the subject of partition in the 4th;defendant's tarwad under Exs. On appeal, the District Judge reversed him, holding that the suit (property was not included in Ex. D or Ex. VI but was the subject of partition in the 4th;defendant's tarwad under Exs. G and H, and that the property being Kandukrishi land the grant of pattah for it to the 4th defendant's tarwad extinguished any prior title thereto in any other person and that its possession was with the 4th defendant and his alienees and therefore dismissed the suit. Hence this second appeal. 2. Ex. D of 1055 does not give survey numbers for the properties covered by it. But Ex. VI the deed of partition on which the plaintiffs base their claim, being dated 26 91101, does give the survey numbers of the properties involved therein and yet does not include either S. No. 317 or S. No. 318. The allotment to the 1st plaintiff as per schedule F in the deed includes 70 parahs of paddy land being 5 acres 16 cents in S. No. 293/1A and 7 cents of garden land in S. No. 293/1 B; the allotment to the 2nd plaintiff as per schedule G and to the 3rd plaintiff as per schedule I include 1 acre 27 cents each in 50 parahs of paddy land being 3 acres 81 cents in S. No. 292/1B (the remaining 1 acre 27 cents of the latter survey number being allotted to another sharer as per schedule E). Admittedly the above said are properties, and are the only properties included in Ex. VI out of those purchased under Ex. D. In Ex. VI., S. Nos. 293/1 and 292/1B are together described as 120 parahs in extent, though Ex. D describes the same as 135 parahs. Thus there appears a deficiency of 15 parahs in the lands included in Ex. VI wherein one parah of land is reckoned as equivalent to 7 cents. At that rate the deficiency would be about an acre only; but the suit property is 6 acres in extent. 3. It is admitted that at the time of the Settlement, 1070/1082 M. E., pattah had been issued for the entire of S. Nos. 317/1 and 318/1 to the 4th defendant's tarwad, Puthenpurakkal, and the pattah for S. Nos. 292/1 and 293/1 which lie just to the west of the former survey numbers given to the plaintiffs' tarwad. 3. It is admitted that at the time of the Settlement, 1070/1082 M. E., pattah had been issued for the entire of S. Nos. 317/1 and 318/1 to the 4th defendant's tarwad, Puthenpurakkal, and the pattah for S. Nos. 292/1 and 293/1 which lie just to the west of the former survey numbers given to the plaintiffs' tarwad. If the former survey numbers were also covered by Ex. D under which the plaintiffs' tarwad purchased the latter survey numbers, it is inconceivable why pattah for the latter alone was taken by the plaintiffs' tarwad. It is very difficult to give any credit to the averment that the plaintiffs' tarwad was unaware of the issue of pattah for the former survey numbers to the 4th defendant's tarwad till 1116. The 1st plaintiff might have been only about 6 years of age in 1082 and the other plaintiffs are younger 10 her. But, their ancestors in the tarwad who have taken pattahs for the latter survey numbers could not have been unaware of the issue of pattah for the adjoining lands to the 4th defendant's tarwad. Their acquiescence therein is telling and the plaintiff's ignorance, even if real, is of little consequence. 4. In Sankaranarayana Panikar v. Kunjan Pillai (1086-26 TLR.184) it was held that Kandukrishi lands were home farm lands of the ruler at the absolute disposal of Government, that the interest of the pattahdar was only a tenancy-at-will and that the settlement decision to issue pattah to one extinguished the title, if any, of others to the property. In Parameswaran Govindan v. Ouseph Geevarghese Kathanar (1088-29 TLR.100) it has been further held: "assuming that 'the plaintiff was not beard before the Sirkar decided to grant pattah to the defendant in respect of these. Kandukrishi lands, we do not think it makes any difference. The Sirkar has thus the right of granting the proprietary interest in such properties to anybody it pleases. If so, it follows that the fact that before making such grant, the Sirkar did not consult any particular individual does in no way detract from the power of the Sirkar to make the grant or minimise the efficacy of such a grant. If so, it follows that the fact that before making such grant, the Sirkar did not consult any particular individual does in no way detract from the power of the Sirkar to make the grant or minimise the efficacy of such a grant. Such a grant operates as an extinguishment of the title, if any, of any other parson in those lands." If the effect of a grant of pattah in 1080/1082 was as laid in the above said decisions of 1086 and 1088 and it remained as such and unchallenged till 1116 when alone the present controversy arose, it would be most inexpedient now to unsettle the matters settled by the Settlement proceedings. 5. Counsel for the plaintiffs-appellants pointed out that Kandukrishi lands were of two kinds, Kandukrishi Thanathu lands and Kandukrishi Pattom lands and that the rights of the holders might vary according to the kind of the land held. Even so, in Kuncheria Kuncheria v. Ouseph Abraham (48 TLR. 262 F. B.) where the property concerned was a Kandukrishi Pattom land, as the present suit properties are, a Full Bench of the Travancore High Court have unanimously adopted the decision in 29 TLR. 100 as applying to that property and held that the grant by the Government of pattah to a purchaser from an incompetent guardian of the minor heir of the former holder could not be avoided or the property recovered from the purchaser by the minor on attaining majority as the Government's right of disposal of the property was absolute. The grant of pattah to the 4th defendant's tarwad in the Settlement proceedings particularly when pattah for some properties admittedly purchased under the same conveyance had been taken by the plaintiffs tarwad must, in the wake of the rulings cited above, be held to conclude their rights as has been held in this case by the District Judge. The fact that in the partition of the plaintiffs' tarwad in 1101 (Ex. VI) the suit property was not included corroborates that inference. Ex. XII, the thandaper for S. Nos. 317/1 and 318/1, shows that from 1102 to 1114 it was the 4th defendant's tarwad that had been paying the Kandukrishi tax on the suit property which was well over Rs. 100/-per annum. That is also corroborative of the inference of plaintiffs' non-possession of the suit property. 6. Ex. XII, the thandaper for S. Nos. 317/1 and 318/1, shows that from 1102 to 1114 it was the 4th defendant's tarwad that had been paying the Kandukrishi tax on the suit property which was well over Rs. 100/-per annum. That is also corroborative of the inference of plaintiffs' non-possession of the suit property. 6. Counsel for the plaintiffs contended that the eastern boundary of the property conveyed under Ex. D is property of Mulakkal tarwad and that Ex. E shows that Mulakkal tarwad had S. No. 318/1 as they have sold it to the 4th defendant's tarwad in the year 1069 and that therefore that S. No. 318/1 lying west of S. No. 318/2 was covered by the plaintiffs' purchase. There is nothing on record to show to whom S. No. 318/1 belonged at the time of Ex. D. From the fact that S. No. 318/2 belonged to Mulakkal tarwad one cannot conclude that S. No. 318/1 could not have belonged to the same tarwad. I have already pointed oat that if the suit property be taken as part of the purchase under Ex. D., the area would be far above what is stated in Ex. D. If the plaintiffs say that the area mentioned in their document to be a mistake they must concede like chances of mistakes in others' documents as well. The non mention of the suit survey numbers in the partition deed (Ex. VI) executed by plaintiffs' tarwad 15 years before the present controversy is also very significant. The documents of lease relied upon by the plaintiffs, Exs. AO of 1105, Ex. AN of 1106, Ex. AP of 1110, Ex. AA of 1112, Ex. AB of 1115 and Ex. AC of 1115 do not mention Survey numbers of the properties covered by them but have their description so vague that it is difficult to identify them. The documents are registered ones. The 1st defendant who was the lessee under Ex. AP denies to have had possession on, the suit property under it; and has sworn to its possession having been with the 4th defend 7. In the circumstances, I agree with the District Judge in his conclusion that the plaintiffs have failed to prove the suit property to be 'part of their purchase under Ex. D or part of the allotments to them under Ex. In the circumstances, I agree with the District Judge in his conclusion that the plaintiffs have failed to prove the suit property to be 'part of their purchase under Ex. D or part of the allotments to them under Ex. VI or to have been in their possession at any time within 12 years of the institution of the suit. The decree appealed against is therefore accepted. The second appeal fails and is dismissed, with costs. Dismissed.