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2017 DIGILAW 231 (KER)

TATATEA LIMITED v. VALARMATHI

2017-02-01

B.KEMAL PASHA

body2017
JUDGMENT : Challenging the concurrent findings entered by the Munsiff's Court, Devikulam in O.S.No.140/1995 followed by those of the Additional District Court, Thodupuzha in A.S.No.195/2004, the plaintiff in O.S.No.140/1995, has come up with this second appeal. The suit is one for declaration of the right and title of the plaintiff over the plaint scheduled property and for recovery of possession of the plaint schedule property from the defendant. A consequential relief of perpetual injunction has also been sought for. 2. Originally, the extent of plaint schedule property was shown as 2.25 cents and subsequently, the same was altered as 8.154 cents of property, through an amendment. The plaintiff is Tata Tea Ltd., Munnar, who claims to have acquired all the properties in Survey No.67/1 (old), which is presently Survey No.67/1-1 of the KDH Village. According to the plaintiff, one late A.R. Kuttan Pillai was permitted to place a bunk shop at a portion of the property of the plaintiff at the road side, through Ext.A6 unregistered lease agreement dated 01.07.1971. The said Kuttan Pillai later died. It is alleged that the defendant ‘stepped into his shoes and got possession of the said petty shop’ and has been conducting a tea shop therein from the year 1990 onwards. 3. Regarding their title over the properties, the plaint claim is that the plaintiff had purchased the right of Kannan Devan Hills Produce Company Limited, Munnar, through Ext.A1 sale deed. It has also been averred that consequent to the coming into force of the Kannan Devan Hills (Resumption of Lands) Act 17 of 1971 (hereinafter referred to as 'the Resumption Act'), all the lands in the possession of Kannan Devan Hills Produce Company were taken by government and subsequently, restored the same to the company. The pleadings, in fact, show that the defendant is a rank trespasser and, therefore, she is liable to be evicted, and the property has to be recovered. 4. The defendant contended that she has no connection with the said Kuttan Pillai and she was/is not aware of such a person. She contended that her father encroached into the government puramboke land in the year 1962 and reduced the plaint schedule property into his possession. He was conducting a petty shop therein and was residing therein with his family, including the defendant. She contended that her father encroached into the government puramboke land in the year 1962 and reduced the plaint schedule property into his possession. He was conducting a petty shop therein and was residing therein with his family, including the defendant. Subsequently, the parents of the defendant put her in possession of the said property and thereafter, she has been in exclusive possession and enjoyment of the plaint schedule property. She contended that the plaintiff has no right or title over the plaint schedule property, and the said property is a portion of government land. 5. The trial court, after recording evidence, found that the plaintiff has failed to prove their title over the plaint schedule property and consequently, the plaintiff was non- suited. Aggrieved by the judgment and decree of the trial court, the plaintiff went in appeal through A.S. No.195/2004. The lower appellate court also has concurred with the findings entered by the trial court and dismissed the appeal. 6. Heard learned counsel for the appellant and learned counsel for the respondent. 7. On the side of the plaintiff, the learned counsel for the appellant has vehemently canvassed an argument that the whole approach made by the lower appellate court was erroneous, and the lower appellate court has found fault with the plaintiff in not adducing negative evidence. According to the learned counsel for the appellant, the lower appellate court ought not to have found fault with the plaintiff in not proving that the property of the plaintiff does not include any government land. 8. Both the learned counsel for the appellant and learned counsel for the respondent have taken this Court through the pleadings as well as the entire documents and evidence. The learned counsel for the respondent has taken this Court through the cross-examination of PW1, who deposed for and on behalf of the company. According to the appellant, the plaintiff had acquired the property through Ext.A1. Ext.A1 is sale deed dated 31.12.1976 executed by Kannan Devan Hills Produce Company limited, in favour of Tata Finlay Limited. It is evident that through Ext.A1, the vendor company had transferred two items of property described as 616.49 acres in Survey No.67/1 and another 0.14 acres in the very same Survey No.67/1, to the vendee company. Therefore, the total extent of property transferred from Survey No.67/1 was 616.63 acres through Ext.A1. It is evident that through Ext.A1, the vendor company had transferred two items of property described as 616.49 acres in Survey No.67/1 and another 0.14 acres in the very same Survey No.67/1, to the vendee company. Therefore, the total extent of property transferred from Survey No.67/1 was 616.63 acres through Ext.A1. From Ext.A2, it is evident that the name of the vendee company namely, 'Tata Finlay Limited', was changed to 'Tata Tea Limited', who is the present plaintiff. Therefore, it has come out that the leasehold right over a total extent of 616.63 acres of land comprised in Survey No.67/1 is vested in the plaintiff company. 9. According to the plaintiff, through the Resumption Act, the entire lands held by the predecessor company of the plaintiff were taken away by the government and subsequently, the same were restored to the predecessor company. Ext.A4 is the copy of the proceedings and notification regarding the same. Page No.3 of Ext.A4 shows that an extent of 127.06 acres in Survey No.67/1-1 was taken away by the government through the Resumption Act. Page No.17 of Ext.A4 shows that the said 127.06 acres of land in Survey No.67/1-1 resumed by the government through the Resumption Act, was subsequently restored to the company. According to the learned counsel for the appellant, the entire land resumed by the government from the company was restored to the company through Ext.A4. At the same time, the pleadings say otherwise. The plaintiff has clearly averred in the plaint in paragraph 8 that "all the lands in the possession of the Kannan Devan Hills Produce Company were resumed by the government". It has clearly come out that the whole extent of the property covered by Survey No.67/1 (old), which was in the possession of Kannan Devan Hills Produce Company, was 620.44 acres. If the plaint averments are correct, it has to be noted that the said 620.44 acres of land were resumed by the government through the Resumption Act. Presently, there is nothing to show that such an extent of 620.44 acres were restored to the plaintiff's predecessor company by the government. If restoration of the whole extent of property was not there, the case of the company that they still possess the entire extent of property, has no legs to stand. 10. Presently, there is nothing to show that such an extent of 620.44 acres were restored to the plaintiff's predecessor company by the government. If restoration of the whole extent of property was not there, the case of the company that they still possess the entire extent of property, has no legs to stand. 10. Apart from the above, it seems that the present plaintiff had purchased only 616.63 acres of land in Survey No.67/1 from the predecessor company through Ext.A1. In such case, there should be a balance of 3.81 acres in Survey No.67/1 with the predecessor company. Here, the case of the appellant is that the appellant is entitled to the entire properties in Survey No.67/1 (old). In such case, they have to account for the entire extent of 620.44 acres in Survey No.67/1 (old). 11. The learned counsel for the appellant has invited the attention of this Court to Exts.A10 and A11. Ext.A10 is the copy of a gift deed executed by Kannan Devan Hills Produce Company Limited on 18.02.1959 in favour of Mother Aurelia for and on behalf of the 'Sisters of the Cross in Southern India' for the conduct of a school, whereby 3.25 acres of property from Survey No.67/1 was gifted out of the total of 620.44 acres in the said survey. Ext.A11 is the copy of sale deed executed by Kannan Devan Hills Produce Company Limited in favour of Tata Finlay Limited on 17.02.1965, whereby 52 cents of property in Survey No.67/1 was sold to Tata Finlay Limited. Therefore, the appellant could account for 3 acres and 77 cents also in Survey No.67/1 (old). Still, there is a balance of 4 cents. 12. Over and above the same, in cross-examination, PW1 has clearly admitted that an extent of 40 cents of property was sold by the plaintiff to a Theatre. The date of such transaction has not been mentioned. Strangely enough, there is absolutely nothing to show the authority of PW1 to depose for and on behalf of the plaintiff. 13. This is a suit wherein the attempt of the plaintiff is not to establish his title over the plaint schedule property; whereas the attempt is to show that the defendant or government has no title over the plaint schedule property. 13. This is a suit wherein the attempt of the plaintiff is not to establish his title over the plaint schedule property; whereas the attempt is to show that the defendant or government has no title over the plaint schedule property. In such case, the plaintiff is duty bound to prove that the plaint schedule property is not a portion of the 3 acres and 25 cents of property gifted to the school, or the portions of the 40 cents of property allegedly sold to the Theatre. For that, there is no evidence. In short, the said persons, who are holding the property gifted to the school as well as the Theatre, which purchased the property, are also necessary parties to the suit. Without their junction, the present dispute cannot be resolved. 14. Through Ext.C3, the Commissioner has reported that the entire land in KDH Village is special land and it is government land. The Commissioner has also found that 3.81 acres of land in Survey No.67/1 was not transferred to the plaintiff. It is a fact that no plan is appended with Ext.A1 in order to identify the 616.63 acres comprised in Survey No.67/1 purchased by the plaintiff. The Commissioner has reported that therefore, he could not determine on the basis of the old survey records, the title in respect of the plaint schedule property. Even though in unequivocal terms, the Commissioner has made such reports in Ext.C3, there was no attempt from the part of the plaintiff to get the Commissioner's report set aside. Without any objection, the plaintiff had chosen to follow the Ext.C3 report and the plan appended with it. 15. The learned counsel for the appellant has vehemently sought for an opportunity to the plaintiff to get the plaint schedule property properly identified through a proper survey and measurement. It has to be noted that when such opportunities were available to the appellant before the trial court as well as the lower appellate court, this Court cannot heed to such a request at the stage of Second Appeal. When concurrent findings on facts through Ext.C3 were taken by the trial court as well as the lower appellate court, the same cannot be interfered with in the Second Appeal. 16. This is a case wherein the defendant has not sought for any counter claim. When concurrent findings on facts through Ext.C3 were taken by the trial court as well as the lower appellate court, the same cannot be interfered with in the Second Appeal. 16. This is a case wherein the defendant has not sought for any counter claim. She has only resisted the claim of the plaintiff and has rightly done so. When the plaint schedule property is not identified and the property of the plaintiff in Survey No.67/1 is also not identified, and especially when the plaintiff could not account for the 4 cents of property as stated above, the plaintiff is not entitled to a decree for the declaration of their right and title over the plaint schedule property and recovery of possession of the same. The plaintiff could not prove their claims before the court below. In fact, the plaintiff had conceded to Exts.C3 and Ext.C3(a). Presently, they cannot claim for further opportunity after these much years. The learned counsel for the appellant has argued that even though it is a lesser extent, the company should not be deprived of their valuable rights in respect of those piece of lands. This Court has to consider the position of the defendant also. The defendant, who is in possession of 8.154 cents of property, has been running after this litigation right from the year 1995. This Court has also to consider the hardships to which she has been put. This Court is of the view that it is not at all feasible or possible to drive the defendant once again for yet another round of litigation from the very beginning. 17. From all the above, I conclude that there is absolutely nothing to interfere with the concurrent findings entered by the trial court and the lower appellate court in this matter. The Second Appeal is devoid of merits and is only to be dismissed with costs, and I do so. In the result, this Regular Second Appeal is dismissed with costs.