PODDAR PLANTATIONS LTD. Vs. KADEEJA

JUDGEMENT

(1.) Plaintiff in O.S. 393/1982 on the file of Munsiff Court, Kalpetta is the appellant. Respondents are the defendants. Appellant Company instituted the suit seeking a decree for recovery of possession of plaint B schedule property on the strength of their title. It was contended that plaint B schedule property forms part of plaint A schedule property and Plaint A schedule property belongs to the Company under Ext.A1 title deed dated 11.1.1973 and plaint B schedule property was trespassed and reduced into their possession by respondents and therefore appellant is entitled to recover possession of plaint B schedule property on the strength of title. Originally only first respondent was impleaded. First respondent in her written statement contended that she is not in possession of the property and 2 = acres of land is in the possession of second respondent her brother and therefore suit is barred for non-joinder. Second respondent was therefore impleaded as second defendant. Second defendant in his written statement contended that appellant has no title to the plaint B schedule property and it was not a trespassed property. According to second respondent, plaint B schedule property was obtained by his father from E & S Company as per an oral lease in 1961 and since then his father was in possession of the property as cultivating tenant and subsequently father handedover possession of the property to second respondent and he is in possession of the property and is entitled to fixity of tenure and therefore appellant is not entitled to a decree for recovery of possession. It was also contended that even if appellant has title to the property, it is barred by adverse possession and limitation.

(2.) The question of tenancy raised by second respondent was referred to Land Tribunal under Section 125(3) of Kerala Land Reforms Act. The Land Tribunal rendered finding that second respondent is not a tenant entitled to fixiture of tenure. Thereafter on the side of the appellant PW1 was examined and on the side of respondents second respondent was examined as DW1. Ext.A1 and Exts.B1 to B6 and Exts.C1 and C2 were marked. On the basis of report submitted by Commissioner, appellant got amended the survey number of the plaint A and B schedule properties as well as the boundary of plaint B schedule property. Learned Munsiff on the evidence found that though second respondent is not a tenant entitled to fixity of tenure, appellant has title to the property covered under Ext.A1 but failed to prove that plaint B schedule property forms part of plaint A schedule property. Therefore suit was dismissed. Appellant challenged the decree and judgment before Sub Court, Sulthanbathery in A.S. 42/1991. Second respondent challenged the finding against him by filing a Cross objection. Learned Sub Judge on reappreciation of evidence found that plaint A schedule property was not identified and it is not established that plaint B schedule property forms part of plaint A schedule property. It was therefore held that appellant is not entitled to the decree for recovery of possession. In the cross objection learned Sub Judge confirmed findings of the Land Tribunal that second respondent is not a tenant entitled to fixity of tenure. The findings of learned Munsiff with regard to the identity and boundaries of plaint B schedule property was confirmed. The appeal was dismissed. It is challenged in the second appeal.

(3.) The appeal was admitted formulating the following substantial questions of law.