PATTATHARI KUTTIRAMAN Vs. PUTHUKKUDI NARYANAN

JUDGEMENT

(1.) Following substantial question of law is framed for a decision:

(2.) Second Appeal arises from judgment and decree of learned Additional Sub Judge, Thalassery in AS No. 2 of 2002 reversing judgment and decree of the learned Munsiff, Thalassery in OS No. 79 of 1997 and non - suiting appellant / plaintiff. He claimed to be a tenant of the suit property - 10 cents in RS No. 2/5 of Ancharakkandy Village. According to the appellant the said property belonged to the late Kunnummal Govindan, father of respondent / defendant from whom he obtained a lease of a portion of the said property for agricultural purposes on 15/04/1950 for a period of 12 years on agreement to pay rent of Rs.2/- per year. It is the further case of appellant that he has been paying rent to the said Govindan and after his death to the respondent / defendant. Govindan had granted a lease of 1 1/2 cents out of the said property to his son, Raghavan (brother of respondent) who executed Ext.A5, Marupatt in favour of Govindan on 12/09/1938. Later, after the lease in favour of the appellant he obtained assignment of right of the said Raghavan in the said 1 1/2 cents in the name of his wife as per Ext. A6. The said 1 1/2 cents forms part of the 10 cents scheduled in the plaint. Appellant is in possession and enjoyment of the suit property. He constructed shop rooms in the suit property (10 cents) and has been enjoying the building and the property. He obtained purchase certificate from the Land Tribunal impleading the respondent. Apprehending trespass by the respondent he laid the suit. Respondent denied that there was any lease in favour of the appellant and that the latter has been paying rent either to Govindan or himself. He denied possession claimed by the appellant. He denied that there was any lease in favour of Raghavan and that Raghavan constructed building in the 1 1/2 cents. Further contention is that the suit is bad for non - joinder of necessary parties since all legal heirs of the late Govindan are not impleaded. Learned Munsiff held that as the suit is for injunction alone, non - impleadment of other legal heirs of Govindan is not fatal. Relying on the report of the Advocate Commissioner, issue regarding identity of the property was answered in favour of the appellant. It was also observed that there was no serious dispute regarding identification made by the Advocate Commissioner. Learned Munsiff relying on the evidence of PWs.1 and 2, Exts. A1 to A11 series and C1 and C2, report and plan submitted by the Advocate Commissioner held that appellant is entitled to the injunction prayed for and decreed the suit. Respondent took up the matter in appeal. In the meantime respondent challenged the order issuing purchase certificate in respect of the suit property to the appellant before the Appellate Authority (L.R.), Kannur with an application to condone the delay of about 20 years. Appellate Authority considered the contentions raised by the respondent and found that delay was not liable to be condoned. Accordingly the application to condone delay and consequently the appeal were dismissed. That order is under challenge in CRP No. 1027 of 2005. Learned Sub Judge who heard the appeal from the judgment and decree of the learned Munsiff was of the view that there was no proper identification of the suit property nor evidence to show that appellant is in possession thereof. On those findings judgment and decree of learned Munsiff were reversed and the suit was dismissed. Appellant challenges judgment and decree of the first Appellate Court in this Regular Second Appeal. Learned counsel for appellant would contend that there is sufficient evidence to prove the tenancy claimed by the appellant in respect of the suit property. According to the learned counsel there was due publication of public notice as required under S.72F(2) of the Kerala Land Reforms Act and the presumption regarding publication of notice is not rebutted. It is also the contention of learned counsel that Ext. A1 series would show that respondent himself had accepted rent from the appellant and there is no contra evidence in that regard. Respondent has even refused to go into the witness box. According to the learned counsel this being a suit for injunction paying Court fee under S.27(c) of the Kerala Court Fees and Suits Valuation Act what the Court is to consider is only whether appellant was in possession of the suit property on the date of suit. Finding of the first Appellate Court that there is no identification of the property is not correct. Learned counsel for respondent would contend that there is no proper identification of the suit property and the description given in the plaint schedule and Ext. C1, report of the Advocate Commissioner do not tally. According to the learned counsel no notice was served on the respondent or any other legal heir of the late Govindan as regards the proceeding before the Land Tribunal which culminated in Ext. A2, order and Ext. A3, purchase certificate and hence the same are not binding on the respondent.

(3.) As the learned counsel for appellant submitted and rightly too, this being a suit for injunction what is relevant for consideration is whether appellant was in possession of the suit property on the date of suit. Reference to title is required only when it is necessary to decide the issue of possession. I shall consider whether appellant was successful in proving that he was in possession of the suit property on the date of suit.