Mariyamma v. State of Kerala — 1998 DIGILAW 227 (KER)

Judgment :- K. Narayana Kurup, J. Appellant is the plaintiff in O.S. No. 32/80 on the file of the Munsiff s Court, Kasaragod. Respondents - State of Kerala and Special Tahsildar (Land assignment) Kasaragod are the defendants in the suit. The suit instituted by the appellant is one for declaration of title over plaint B Schedule property one for declaration of title over plaint B schedule property and for a consequential injunction restraining the defendants from forcibly evicting the appellant therefrom. 2. The plaint averments are as follows: Plaint A schedule property belonged to late Kunhappa, the husband of the appellant which he purchased as per Ext. Al registered sale deed. B schedule property lies on the east of item one of the plaint A schedule. The appellant and her husband came into possession of the B schedule property on 1.2.1949. The definite case set up by the plaintiff is that plaint A and B schedule properties were in the absolute possession and enjoyment of the appellant and her husband from 1949 onwards. Consequent on the death of her husband in 1956, the appellant continued in possession and enjoyment of the plaint A and B schedule properties. The appellant and her husband have been in enjoyment of the B schedule property peacefully and uninterrupted claiming a hostile title adverse to the respondents for more than 30 years and they have used the plaint B schedule property for drying paddy, for stalking hay, for cultivation of vegetables and fugitive crops and for other like purposes. They have also laid a road 20 ft. wide, leading from the National Highway to the plaint A schedule property through item 1 of the plaint B schedule property. The suit was necessitated on account of steps taken by the defendants to forcibly evict the appellant. They have also laid a road 20 ft. wide, leading from the National Highway to the plaint A schedule property through item 1 of the plaint B schedule property. The suit was necessitated on account of steps taken by the defendants to forcibly evict the appellant. Respondents resisted the suit contending inter alia that A and B schedule properties are separated by compound walls, that item one of B Schedule (in R.S. No. 107/1 a) was barren rocky land touching the National Highway at Chattanchal and free of any encroachment till 17.11.1979, that on 18.11.1979 the appellant's son encroached into the land, enclosed the property and planted 50 coconut plants on that day itself, that the appellant or her husband have not been in possession as contended, that consequent on the objection of the encroachment by the public, the Government rejected the request of the appellant's son for assignment on 7.11.1979, that thereupon orders were passed by the 2nd defendant on 21.11.1979 under S.11(3) of the Kerala Land Conservancy Act directing the appellant's son to vacate the land, that on 4.12.1979 the Asst. Collector, Kasaragod dismissed the appeal, that on 14.1.1980 the District Collector dismissed the revision therefrom, that on 15.1.1980, the public dismantled the laterite stone enclosure, that the Village Officer, Thekkil removed the encroachment and took possession of the land on behalf of the Government and that the suit is barred under S.20 and 20A of the Kerala Land Conservancy Act. It was also stated that against the order of the District Collector dated 14.1.1980 the appellant's son has filed O.P. No. 221/80 before this Court which has since been disposed of. 3. The evidence in this case consists of Exts. Al to A4 and PW1 to PW3 on the side of the plaintiff and Exts. B1 to B6 and DW1 to DW3 for the defendants. Exts. Cl to C3 were also marked. 4. The trial court on appreciation of evidence, held that the plaintiff has not perfected title by adverse possession and limitation. The suit was accordingly dismissed. The lower appellate court as per judgment in A.S. No. 136/86 filed by the appellant confirmed the judgment and decree of the trial court and dismissed the appeal and hence this second appeal. 4. The trial court on appreciation of evidence, held that the plaintiff has not perfected title by adverse possession and limitation. The suit was accordingly dismissed. The lower appellate court as per judgment in A.S. No. 136/86 filed by the appellant confirmed the judgment and decree of the trial court and dismissed the appeal and hence this second appeal. During the pendency of the appeal, the appellant died on 2.12.1993 and on her death, her legal heirs got themselves impleaded as supplemental appellants 2 to 8 in the appeal. This Court admitted the appeal to file by order dated 26-6-1989 finding that a substantial question of law, viz. "Whether the plea of adverse possession put forward by the appellant is in any way affected by the production and proof of Exts A2 to A4?" arises for consideration. 5. Upon hearing learned Senior Counsel Sri. K. Chandrasekharan for the appellant and learned Government Pleader for the respondents at length, I am satisfied that the question of law involved in this appeal is a substantial question of law which has been wrongly decided by the courts below as will be clear from the discussion to follow: 6. Plaintiffs claim of possession of plaint B Schedule property from 1.2.1949 onwards was rejected on three grounds: (i) Exts. A2, A3 and A4 proved by the evidence of PW-2 and PW-3 were not mentioned in the plaint. The above documents prove that these witnesses occupied the plaint B Schedule property on behalf of the plaintiff. The documents are after thought; (ii) The report of the Advocate Commissioner (Ext. Cl) says that the compound wall put up by the plaintiff around the plaint B schedule property was 30-35 years old which was rejected. According to the courts below, the Advocate Commissioner is not competent to prove the age of the wall; (iii) The conduct of the plaintiff s son Abdul Kader applying assignment of plaint B schedule on registry in 1979 shows, that plaintiffs possession was not 30 years' old. 7. The questions apparently create the impression of question of fact. Under S.100 of the CPC a Second Appeal lies "if the High Court is satisfied that the case involves a substantial question of law". Some principles governing the Second Appeal should be noted, so that the case is understood in the correct perspective. 7. The questions apparently create the impression of question of fact. Under S.100 of the CPC a Second Appeal lies "if the High Court is satisfied that the case involves a substantial question of law". Some principles governing the Second Appeal should be noted, so that the case is understood in the correct perspective. As held in Sir Chunilal V. Mehta & Sons Ltd. v. The Century Spinning & Manufacturing Co. Ltd. (1962 Suppl. (3) SCR 549) construction of documents may raise a substantial question of law. The documentary evidence which is neither simple nor free from doubt may raise a question under S.100 of CPC construction of document is a pure question of law and can be taken up in Second Appeal even if it was not specifically taken in lower courts. (U.K. Isha Beevi v. E. Shahul Hameed -1993 (2) KLT 631 DB). It has been held in the Secretary to Government., Home Department, v. Hari Rao (AIR 1978 Madras 42) that misconstruing of evidence and acting without evidence is a substantial question of law. The construction of documents which forms basis of a suits a question of law - vide (Bhaggu v. Manni Prasad - AIR 1965 Allahabad 202). So also whether the plaintiff has made out his title to the property is a question of law. (Vinayakrao v. Bhondu - AIR 1942 Nagpur 103). 8. Pleadings are not expected to mention evidence. That is why Exts. A2 - lease deed executed by Kunhambu Nair (PW2) in favour of plaintiff s husband on 14.4.1949 - A3 - lease deed executed by PW2 in favour of the plaintiff on 13.4.1957 after her husband's death and Ext. A4 - Lease deed executed by Abdulrahiman (PW3) in favour of the plaintiff on 12.4.1962 on expiry of A2 lease with Kunhambu Nair in 1962 - do not find a mention in the plaint. A plaint states only material facts. (O. VIR. 2 CPC). Material fact is possession of plaint B schedule property from 1949. This has been specifically pleaded in the plaint. The defendant allowed Exts. A2, A3 and A4 to go in evidence and had the opportunity of meeting the plaintiffs case based on these documents. Therefore, the courts below erred in dismissing the suit on the ground of non-mention of Exts. A2, A3 and A4 in the plaint. The documentary evidence of Exts. The defendant allowed Exts. A2, A3 and A4 to go in evidence and had the opportunity of meeting the plaintiffs case based on these documents. Therefore, the courts below erred in dismissing the suit on the ground of non-mention of Exts. A2, A3 and A4 in the plaint. The documentary evidence of Exts. A2, A3 and A4 is not inconsistent with the case of adverse possession set up in the plaint as also the oral testimony of PWs.1, 2 and 3. 9. Then it is said that the case based on lease under Exts. A2, A3 and A4 is inconsistent with the plaintiff s personal possession of the property. The plaintiff may be in possession by herself or though lessees. Possession through lessee(s) is not inconsistent with the plaintiffs possession. The documents Exts. A2, A3 and A4 may have been produced during evidence. But the writings have not been shown to be fabricated or brought into existence after the suit. The judgment of the courts below do not discuss any evidence suggesting fabrication of these documents. Therefore, they have acted on surmise and conjecture resulting in improper rejection of relevant documents. 10. Whether Advocate Commissioner is accurate about the age of the stone wall may be debatable, but it is not disputable that the stone wall is old and enough to corroborate the testimony of the plaintiff. To expect the report of Advocate Commissioner to give the exact age of the stone wall is unrealistic, nor has it been shown that an Archaeologist could have proved the exact age of the stone wall. In any view, the Commissioner's report provides a general corroboration that the wall is old. If this is accepted, the probabilities show that the plaintiffs case is true. The case of the plaintiff has been rejected by resorting to surmise and conjectures and unreasonable inference. 11. Lastly the evidence of Ext. B2 mahazar and the testimony of DW-2. No doubt, upon the trespass by Abdul Kader, son of the plaintiff, Ext. B2 mahazar was prepared on 15.1.1980. This, merely proves that on 15.1.1980 evidence of trespass was discovered. However, this cannot by itself mean that prior to that date, plaintiff was not in possession of the property. This evidence does not negative the evidence of Exts. A2, A3 and A4 which have not been alleged to be fabricated as already noted. B2 mahazar was prepared on 15.1.1980. This, merely proves that on 15.1.1980 evidence of trespass was discovered. However, this cannot by itself mean that prior to that date, plaintiff was not in possession of the property. This evidence does not negative the evidence of Exts. A2, A3 and A4 which have not been alleged to be fabricated as already noted. The evidence given by the plaintiff has not been weighed and appreciated in the correct perspective. The plaintiffs son Abdul Kader was asked to vacate plaint B schedule for which he had taken steps to get it assigned on registry. A subsequent assertion of possession by Abdul Kader does not necessarily imply that the plaintiff is not in possession prior to such assertion. It has also to be noted that Abdul Kader is not the plaintiff. If Exts. A2, A3 and A4 indicate possession through licensee(s) during 1949, there is an assumption that such possession continued. (See in this connection illustration (d) to S.114 of the Evidence Act). This presumption is founded on the principle of continuity of state of things. If state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may be drawn. (Ambika Prasad v. Ram Ekbal Rai (AIR 1966 SC 605). Failure by the courts below to consider application of this statutory presumption and relying merely on the subsequent events of the mahazar Ext. B2 is a substantial error of law. 12. Significally, there is no appreciation of the plaintiffs oral testimony. She has asserted her possession since 1949. It is immaterial that she later claimed possession through lessees. Her evidence is: (a) her son Abdul Kader does not live with her; what he did cannot affect her possession; (b) Exts. A2, A3 and A4 were executed in her presence. (c) She has been in actual possession of plaint B schedule property for 361/2 years to the knowledge of the defendants which is not disputed by them. 13. I have been taken through the plaintiff s evidence. All that the cross-examiner did was to suggest that her son Abdul Kader encroached upon the property. Admittedly, Abdul Kader and plaintiff Mariyamma are not on good terms. That is why she asserted that he was not in possession of the property. 13. I have been taken through the plaintiff s evidence. All that the cross-examiner did was to suggest that her son Abdul Kader encroached upon the property. Admittedly, Abdul Kader and plaintiff Mariyamma are not on good terms. That is why she asserted that he was not in possession of the property. If Abdul Kader on his own chooses to commit some act, it does not negative plaintiffs case of possession. 14. The cross examination does not challenge the fact of execution of Exts. A2, A3 and A4. There is not even a question about them. In my opinion, the plaintiff s oral evidence about her possession and execution of Exts. A2, A3 and A4 has remained unshaken. The mere suggestion in the cross-examination does not mean that the plaintiffs evidence is unreliable. Therefore, in my judgment, her evidence proves hostile possession of plaint B schedule property since 1949. 15. In conclusion, it has to be held that the oral evidence of the plaintiff and the documentary evidence Exts. A2, A3 and A4 have been seen in isolation and the presumption of law under S.114 of the Evidence Act has been ignored. The evidence of the Advocate Commissioner has been understood in a distorted manner, and ignoring its corroborative value. Thus, on a totality of the view, the evidence has been construed and conclusion drawn on surmises and conjectures. As held by the Madras High Court in Secretary, Government. Home Department v. Hari Rao (AIR 1978 Madras 42) misconstruing of evidence is a substantial question of law. In cases of adverse possession it is a mixed question of law and fact. But, if a finding entered is based on misconstruction of evidence and non application of statutory presumption, the proper legal effects of facts are questions of law. The courts below have erred on substantial question of law and the plaintiffs oral evidence about her possession of plaint B schedule property with effect from 1949 and execution of Exts. A3, A3 and A4 remain unshaken. In the result, the appeal is allowed. The judgments and decrees of the courts below are hereby set aside and the suit of the plaintiff is decreed. The parties shall bear their costs throughout. Appeal allowed.