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2003 DIGILAW 446 (KER)

P. Kunhunni v. T. R. Velayudhan

2003-07-11

A.LEKSHMIKUTTY

body2003
Judgment :- The unsuccessful first defendant in O.S.No.279/1983 on the file of the Munsiff Court, Palakkad, who is the first appellant in A.S.No.101/86, is the appellant herein. The plaintiff filed the suit for recovery of possession of the basis of title. The case of the plaintiff is that the plaint schedule property originally belonged to the joint family of the plaintiff’s grandfather and his sons. As per Ext.A1 partition deed, that plaint schedule property along with other properties were allotted to the plaintiff’s father T.V.Raman as B schedule. The said Raman and others entered into a partition as per Ext.A2 on 27-12-1961. Item No.17 in B schedule allotted to the plaintiff is the plaint schedule property. The said property was in the possession and enjoyment of the plaintiff. Since he was employed in far away places, the property was being looked after by his father T.V.Raman, who was paying the basic tax on behalf of the plaintiff. Father of the plaintiff was residing about 10 kilometers away from the pliant schedule property. On 2-8-1983, when the plaintiff’s father went to the property to see whether any black gram could be raised in the property, he found the property fenced all around and black gram was sown in it. On enquiries it was found that the defendant trespassed into the property a few days prior to his visit and sown black gram and got it fenced. Hence the suit for recovery of possession. 2. The defendants filed written statement contending that neither the plaintiff nor his father was in possession of the plaint schedule property. It is admitted that the plaint schedule property originally belonged to the family of plaintiff’s grandfather. Verumpattam was granted by the original owner to the supplemental 2nd defendant, who is the father of the first defendant and he was in possession of 21 cents of property in survey No.43/A2 as a verumpattom tenant. He has obtained purchase certificate in respect of the said property. On the basis of the contention raised by the first defendant, the 2nd defendant was subsequently impleaded. The contention of the 2nd defendant is that the property originally belonged to one Velayudhan, grandfather of the plaintiff. He gave the property as verumpattam to him and thus he was in possession of the property. It was used as a thrashing ground. The defendant used to raise black gram in the property. The contention of the 2nd defendant is that the property originally belonged to one Velayudhan, grandfather of the plaintiff. He gave the property as verumpattam to him and thus he was in possession of the property. It was used as a thrashing ground. The defendant used to raise black gram in the property. He was made to believe that the property was set apart to T.V.Vijayakumar, brother of the plaintiff’s father in the partition. The 2nd defendant and the said vijayakumar filed a ‘J’ form before the Land Tribunal, palakkad which was registered as O.A.No.1299/1973 for assignment of landlord’s right. Exts.B2 to B4 are respectively purchase certificate, certified copy of Form No.J and certified copy of order of the Land Tribunal in O.A.No.1299/1973. Tax receipts in respect of the property produced by the plaintiff would not confer any possession. Even if it is found that the plaintiff has got any right over the property, it is lost by uninterrupted hostile possession of the defendant. 3. On the basis of the pleadings, the trial court raised 11 issues. The evidence consists of the oral testimony of PW1 and DWs. 1 and 2 and documents Exts.A1 to A30 B1 to B6. The trial court after appreciation of the evidence decreed the suit. The defendant filed appeal before the first appellate court and the appellate court confirmed the judgment and decree of the trial court and dismissed the appeal. This second appeal is filed by the defendant against the said judgment and decree. The questions of law formulated in this appeal are i) Whether the court below is justified in law in decreeing the suit overlooking Ext.B2 purchase certificate ii) Whether the plaintiff is entitled to recover the plaint schedule property and; iii) Whether the courts below justified in not referring the matter before the competent Land Tribunal under section 125 (3) of the Kerala Land Reforms Act. 4. All these three points shall be considered together. It is the admitted case of both parties that the plaint schedule property originally belonged to the grandfather of the plaintiff and he was in possession of the same along with other properties. As per Ext.A1 partition deed No.1076/1951, the plaint schedule properly along with other properties were allotted to the plaintiff’s father Raman. Ext.A2 dated 27-12-1961 is the partition deed executed by Raman and others in respect of their properties. As per Ext.A1 partition deed No.1076/1951, the plaint schedule properly along with other properties were allotted to the plaintiff’s father Raman. Ext.A2 dated 27-12-1961 is the partition deed executed by Raman and others in respect of their properties. Plaint schedule properly is item Nos.17 in B schedule which was allotted to the plaintiff. The case of the plaintiff is that ever since the partition deed, he was in possession and enjoyment of the same. As the plaintiff was employed elsewhere, the plaint schedule property was looked after by his father Raman on his behalf and was paying tax. So the plaintiff has proved his title over the plaint schedule property. The father of the plaintiff was examined as PW1. He is a retired District Judge. His evidence shows that as per Ext.A2 partition deed, the plaint schedule property was allotted to the share of plaintiff along with other properties. Ext.A3 is a puncha chit issued to Sri T.V.Krishnan, who is the brother of PW1, on 23-10-1952 for 30 cents of property in survey No. 43/A2 in patta No. 132, the plaint schedule. Ext.A4 is the water cess receipt in his name dated 21-7-1954. Exts.A5 to A12 and 18 are water tax and basic tax receipts issued to the plaintiff’s father for the years 1955 to 1983. Ext.A19 to 29 are tax receipts issued in the name of the plaintiff. So according to learned counsel for the plaintiff, the plaintiff and his predecessors were in possession of the property. On 2-8-1983, PW1 visited the plaint schedule property and he found that the property was fenced on all sides and black gram cultivation was raised in their property. On enquiry it was found that the defendant has trespassed into the property 3 or 4 days prior to his visit. So the plaintiff is entitled to recover the property from the defendants. 5. The contention of the defendant is that the 2nd defendant got verum pattam in respect of the plaint schedule property from the grandfather of the plaintiff. He was paying rent to the plaintiff’s grandfather. Thereafter rent was being paid to PW1. Later it was told that the plaint schedule property was set apart to PW1’s brother T.V.Vijayakumar. As per Exts.B3 and B4, the 2nd defendant got patta in respect of the schedule property. There is no documents to show at least for the payment of rent to the land owners. Thereafter rent was being paid to PW1. Later it was told that the plaint schedule property was set apart to PW1’s brother T.V.Vijayakumar. As per Exts.B3 and B4, the 2nd defendant got patta in respect of the schedule property. There is no documents to show at least for the payment of rent to the land owners. As per the defendants, they partitioned their properties as per Ext.B1 partition deed. Item No.8 in Ext.B1 is the plaint schedule property, which was allotted to the share of the first defendant. Ext.B3 is the certified copy of Form J in O.A.No. 1299/73. In pursuance of the application, Ext.B2 patta was issued in the name of the 2nd defendant. Ext.B4 is the copy of the order of the Land Tribunal in O.A.No.1299/73. Exts.B5 and B6 are the basic tax receipts issued in the name of the 2nd defendant. So according to the defendants, all these documents would shown that the second defendant is now the absolute owner in possession and the plaintiff is not entitled to recover the same. Admittedly neither the plaintiff nor his father was a party to the O.A.Proceedings. As per the 2nd defendant, he was paying rent to PW1. Even then he was not made a party to the Land Tribunal proceedings. From the documents produced by the defendants, it can be seen that the assignment application was filed only in 1973. Exts.B5 dated 13-12-1972 and B6 dated 8-6-1972 are the tax receipts in the name of the defendant. So even prior to the assignment of patta, the defendants have paid basic tax for the property. In Exts.B4 and B5 the name of Vijayakumar is shown as the landlord. There is nothing on evidence to show that the said vijayakumar has got any right over the property. If actually the 2nd defendant was paying rent to PW1, he ought to have been made a party to the Land Tribunal proceedings by which he obtained patta. So it is to be found that the patta was obtained fraudulently. 6. As per DW2, lease was granted to him some 45 years back by Velayudhan, the grandfather of the plaintiff. It has come out in evidence that the plaint schedule property is not included in the family partition of 1966. It actually the 2nd defendant was in possession of the plaint schedule property, it would have been included therein. 6. As per DW2, lease was granted to him some 45 years back by Velayudhan, the grandfather of the plaintiff. It has come out in evidence that the plaint schedule property is not included in the family partition of 1966. It actually the 2nd defendant was in possession of the plaint schedule property, it would have been included therein. On the basis of the joint application filed by Vijayakumar and the 2nd defendant, patta was issued in favor of the 2nd defendant. The said Vijayakumar is not the landowner of the plaint schedule property and hence he is in competent to file ‘J’ form along with the 2nd defendant. That itself would show that the joint application was filed without any authority whatsoever. Since the plaintiff or his predecessors were not party to the land Tribunal proceedings, it would not bind them. The documents produced by the plaintiff would show that the plaintiff has got title over the property. So the plaintiff is entitled to recover possession of the property on the basis of title. 7. Another contention raised by the defendant is that even if the plaintiff has got any right over the plaint schedule property, it has been lost by the continuous uninterrupted hostile possession. Apart from the interested testimony of DWs. 1 and 2, there is no other evidence to prove their possession. The case of the plaintiff is that when PW1 visited the property on 2-8-1982, he saw somebody has trespassed in to the property and raised black gram cultivation. On enquiry, it was understood that the 1st defendant has trespassed into the property and raised black gram cultivation and fenced the property. As per the evidence of PW1, it was 3 or 4 days prior to his visit. With regard to the hostile animus, absolutely there is no evidence. The further contention of the defendants is that even though they have raised a contention regarding fixity of tenure it was not referred to the Land Tribunal under Section 125 (3) of the Kerala Land Reforms Act. In every case it is not necessary to refer the case to the Tribunal under Section 125 (3). Unless such question legally arises there is no need to make the reference to the Land Tribunal. In the present suit, prima facie it can be seen that the contention raised by the defendant regarding tenancy is false. In every case it is not necessary to refer the case to the Tribunal under Section 125 (3). Unless such question legally arises there is no need to make the reference to the Land Tribunal. In the present suit, prima facie it can be seen that the contention raised by the defendant regarding tenancy is false. In such circumstances, there is no necessity to refer the matter before the Land Tribunal. The Civil court can consider whether the plea raised by the party is a bonafide contention. If there is not even a remote possibility of the said plea being upheld by the Land Tribunal, the Civil Court can consider the question and the courts below were justified in not referring the issue to the Land Tribunal. Once the defendant has admitted permissive possession as per the oral lease, he must plead and prove his hostile possession over the property. No evidence has been adduced by the defendants in respect of adverse possession. The hostile animus to possess the land is to be proved by independent evidence. The specific case of the plaintiff is that he was employed for away from the plaint schedule property and hence his property was looked after by PW1, his father. He was residing 10 kilo meters away from the plaint schedule property. The plaintiff has proved his title over the property through oral and documentary evidence. So the plaintiff is entitled to recover the property from the defendants and the adverse possession claimed by the defendants is disallowed. There is no reason to set aside the decree and judgment of the court below. The appeal is devoid of any merit and it is dismissed.