DAMODARAN Vs. KARIMBA PLANTATIONS CO. LTD. & OTHERS

JUDGEMENT

(1.) THE subject -matter of this litigation is an extensive hill tract in Karimba Desom, Walluvanaud Taluk, South Malabar. The suit was instituted by the 1st plaintiff who was appointed Receiver in O.S. No. 112 of 1933 of the Subordinate Judge's Court, Palghat, to manage the estate including sthanom and Devaswom properties of Kuthiravattath Nayar, the 3rd plaintiff in the suit. During the pendency of this suit the 1st plaintiff was removed from office and the 2nd plaintiff was appointed as Receiver, in O.S. No. 100 of 1947 on the file of the District Court, South Malabar. He in turn was replaced by the 4th plaintiff who was appointed by the Court of Wards which obtained management of the estate later. According to the original plaint, the properties described in the schedule appended to the plaint belonged to Pulappatta Thiruvilayanad Bhagavathi Devaswom owned by the Kuthiravattathu estate. These lands are marked as plots A, A1 and A2 in the plan -Ext. A44 filed along with the plaint. The Sthanom was enjoying the properties, granting leases and licences to several persons for cutting timber. On 3rd January 1943 such a lease was granted to one Athan Rowther and on the termination of the period of one year, he surrendered possession. Thereafter the right of cutting trees of specified girth was granted to the 11th defendant by a deed dated 10th March 1946 and while the latter was in possession Defendants 1 to 9 obstructed his work. He took up the matter to the Criminal Court but did not pursue the same. However he informed the 1st plaintiff about the matter and on enquiry the 1st plaintiff found that Defendants 1 to 4 who claimed title under Defendants 5 to 9 had entered into possession of plot A1 and that they had cut and removed trees in the said plot and planted the land with rubber. They were also found attempting to trespass into plot A2. As Defendants 1 to 4 denied the plaintiff's title/the suit was filed for establishing the title of the sthanom, for recovery of plot A1 from Defendants 1 to 4, for an injunction restraining the Defendants from entering into possession of plot A2 and for damages for waste committed in the property. The plaint was later amended so as to include an alternative prayer for recovery of plot A2 also in case the Defendants were found to be in possession of the same. Defendants 1, 2, 3, 4, 7, 8, 9 and 12 filed written statements. The defence contentions so far as they are material for the decision of this appeal are that neither the Devaswom nor the Estate of Kuthiravattathu Nair has title to the properties, that Defendants 1 to 4 are in possession of plots A1 and A2 having obtained the same under Defendants 5 to 9 who had a kanom right under the 10th Defendant's Kattussery family. They contend that their possession is lawful and that they are not liable to be evicted. The 10th Defendant who was Kattussery Mootha Nair at the time of the institution of the suit died later and his successor was impleaded as supplementary 12th Defendant. The latter claimed these properties as belonging to his sthanom and thus denied the title of the plaintiffs. After an elaborate trial the court below found that the plaintiff had not established title or possession within 12 years of the suit and the suit was accordingly dismissed with costs. The 4th plaintiff has therefore preferred this appeal. The main question which arises for decision is that of title. Defendants 5 to 9 and under them Defendants 1 to 4 admittedly are entitled to the land lying to the east of the hill tract belonging to the 3rd plaintiff's estate. The real dispute between the parties is whether the disputed land forms part of the 3rd plaintiff's estate or whether the same is included in the lands owned by the 12th Defendant's sthanom, demised to the family of Defendants 5 to 9. As the land is unsurveyed, the matter has to be decided without the aid of revenue records relating to the same. However it was agreed by both sides that the case could be decided on the finding regarding the location of one of the eastern boundaries of the plaint land viz., Karvazhi Thodu. There is dispute between the parties about the location of this thodu or stream. The stream is marked in the plan Ext. C1 prepared by the Commissioner deputed by the lower court. While the plaintiff contends that it is the stream marked E in Ext. C1, the defence case is that it is either E2 or E3 in Ext. C1. Whether it is the stream marked E2 or E3, the disputed lands will be outside the eastern boundary mentioned in the plaint. The appeal was argued by both sides on this basis.

(2.) BEFORE considering the evidence for the purpose of locating Karvazhi Thodu, it is necessary to observe that the plan Ext. C1 produced by the Commissioner is not of much help. It was not actually prepared by the Commissioner but by P.W. 2. This procedure was wholly unauthorised because the court directed the Commissioner to prepare the plan and he was not to get the plan prepared by somebody else. Ext. C1 as it was originally produced did not indicate the location of the thodu as pointed out by the Defendants. The Commissioner was asked later to show their location and it was only at that stage that E2 and E3 were marked in Ext. C1. P.W. 2 who prepared Ext. C1 also prepared the plan Ext. A44 which was filed along with the plaint. As to how far P.W. 2 was prepared to help the plaintiffs can be seen from the fact that he categorically stated that there were no streams at the places indicated by the Defendants. P.W. 1, the Head -Clerk of the plaintiffs' estate, however admitted with some reluctance the existence of streams at the places marked E2 and E3. In his chief examination he stated that E2 and E3 were "varichals" and that only chals where water will flow in summer and winter are called thodus. In cross -examination he stated that Vellachals and thodus are the same. Though the expression used at that stage was "Vellachal" as distinct from Varichal, he admitted later that E2 and E3 were Vellachals which means streams or thodus. He deposed "Vellachal E2 and E3 marked in Ext. C1 exists," Thus though P.W. 1 finally admitted the existence of the thodus marked E2 and E3, P.W. 2 was not only not prepared to mark the same in Ext. C1 but he was ready to state on oath that there were no thodus at those places. The deposition of P.W. 2 shows that he cannot be relied upon. At first he said "I prepared a sketch from the spot. I prepared the plan from my house. The sketch is still with me". Before the Chief -examination ended he added "Ext. C1 was drawn by me. I have written the names. On the first day I was not ready to go with the Commissioner. On the 3rd day I went. The Commissioner was then there. The Commissioner had prepared a sketch with the assistance of Amsom Menon by the time I reached there. With the sketch I inspected the properties once more. The sketch was found to be correct.' Ext. C1 was drawn to the sketch handed over to me". Thus it is not clear whether Ext. C1 was prepared on the basis of the sketch prepared by P.W. 2 or the Commissioner. Neither the sketch prepared by the Commissioner nor the one prepared by P.W. 2 has been produced in the case. P.W. 2 admitted that E2 and E3 were drawn in Ext. C1 by him. This was after the plan was remitted back to the Commissioner. However he admitted that he did not go to the spot with the Commissioner after the plan was remitted for rectification. The facts stated above show that no reliance can be placed on the fact that these streams were not shown in Ext. C1 when it was first prepared. The dimensions of the streams shown by the plaintiff and the defendants as marked in Ext. C1 also cannot be taken as correctly indicating their actual dimensions. We make this observation because it was argued on behalf of the appellant that Karvazhi thodu marked E in Ext. C1 is bigger in size than those shown by the Defendants and that the bigger stream was likely to have been mentioned as the boundary.

(3.) THAT Karvazhi thodu cannot be located as contended by the plaintiff can be seen from certain records binding on the plaintiff's estate. Kattussery Mootha Nair had demised certain properties on Ubhayapattom to one Narayanan Namboodiri and the 3rd plaintiff in his personal capacity had obtained an assignment of the lease -hold right in some of those properties. Narayanan Namboodiri had to pay certain amounts to Kattussery Mootha Nair under the deed of Ubhayapattom and a suit was instituted as O.S. No. 145 of 1936 of the District Munsiff's Court of Walluvanad for recovery of such amounts. The 3rd plaintiff in this suit was the 2nd defendant in O.S. No. 145. He filed a written statement," copy of which is Ext. B2. A decree for recovery of the amounts was passed in that suit and in execution Narayanan Namboodiri's tenancy right which had become vested in Kuthiravattath Nair and others was sold in court sale and purchased by the decree -holder. Ext. B1 is copy of the sale certificate. Item No. 7 in Ext. B1 is described as Kilayanmala pathi, lying north of item No. 8. The latter item comprises surveyed land included in several sub -divisions of survey No. 193 which are marked in Ext. C1. These lie far to the west of the stream marked E in Ext. C1 and plot 7 is north of that. It follows that the stream pointed out by the plaintiff as Karvazhi thodu could not be the eastern boundary of the plaintiff's Malavarom since Kattussery Mootha Nair admittedly had a vast tract of land lying to the west of it. The western boundary of item 7 in Ext. Bi is Karkuzhi thodu. Whether this means karvazhi thodu or not, it is clear that there was a stream which formed the western boundary of lands belonging to Kattussery Mootha Nair which lay to the west of the stream E in Ext. C1. The name of item No. 7 in Ext. B1 is Kilayanmala pathi. Kilayanmala admittedly belonged to Kattussery Mootha Nair and it is now in the possession of Defendants 1 to 4. According to the plaintiff's case Kiliyanmala lies to the east of Karvazhi thodu. This cannot be correct since Kilayanmala pathi lies west of the several subdivision of S. No. 193 described as item No. 8 in Ext. B1. This supports the defence case that the hill shown by the plaintiff as Chemmanthittamala is really Kilyanmala. Thus though the plaint property is unsurveyed land the description of adjoining lands in documents which are binding on the plaintiffs and which comprise surveyed lands indicates that the plaintiff's case cannot be true.