NARAYANAN NAMBOODIRI Vs. RAMAN NAIR

JUDGEMENT

(1.) These two second appeals arise respectively out of two connected suits O. S. 612 of 1950 and O. S. 142 of 1952 both on the file of the Ottapalam Munsiffs Court. As they involved practically the same question they were heard together and are being disposed of by this common judgment.

(2.) The first of these suits O. S. 612 of 1950, was filed by the Kizhakkedath Manakkal in Walluvanad Taluk, as plaintiff, for declaration of their title and possession of certain forest land and also for damages for destruction of the northern boundary thereof, as against the 1st defendant Kuttan Moothan. The 1st defendant claimed title in himself, as Kanomdar under the 2nd defendant, Vadakkunathan Devaswom and repudiated the allegation of mischief. This suit was taken in continuation of an earlier suit O. S. 117 of 1948 filed by the plaintiff against the 1st defendant alone, for mere injunction, but dismissed with liberty reserved, to agitate title afresh. During the course of the suit, the 1st defendant filed O. S. 142 of 1952 against the Manakkal and its tenants, for compensation for alleged theft of cashewnut crop and manure leaves from the property. On agreement of parties the suits were tried and disposed of together with the result, that the Manakkal was found to have failed to discharge the burden, which according to the court, rested on them, to make out their title and possession within 12 years and further that they were liable for theft of certain cashew crops from the property. Accordingly O.S. 612 of 1950 was dismissed in toto while O.S. 142 of 1952 was decreed in favour of the 1st defendant though not to the full extent claimed by him. Two separate appeals were taken by the Manakkal before the Subordinate Judges Court of Ottapalam but without success. They have therefore now come up before this Court with these appeals and the main complaint urged on their behalf is that the courts below have misled themselves by adopting a wrong rule as to burden of proof. And I may say at once that there is a good deal of force in this complaint.

(3.) The disputed property is the south-eastern portion of R.S. No. 74/1 of Pullappatta Desom; 81 x 48 six feet koles in extent and is identified in Ext. C-l commissioners plan in the case as Plot A. Plot B to the south comprising S. No. 78/1 and 78/6 is admittedly Umbilchola paramba belonging in jenmom to the Manakkal and it is their claim that the disputed property is the northern section of this paramba. The Manakkal admits that the patta for S. No. 74/1 is in the name of the Devaswom hut they say that that circumstance is immaterial in the light of S.19 of the Malabar Land Registration Act The 1st defendant purchased his kanom right in November, 1937, in execution of the decree in O. S. 420 of 1935 obtained by the Devaswom against its kanom tenant and it is his case that the disputed property is comprised in item 6 of the sale sannad where the description is given as Mandazhi Patinharakara Paramba 150 x 115 six feet koles in S. No. 74/1 and 74/7. According to the plaintiff, this extent falls short of the disputed property as established by the evidence in the case, particularly the data collected by the commissioner of court in previous litigation O.S. 85 of 1946 on the file of the Ottapalam Munsiff Court, between these parties.