K P NARAYANAN NAMBIAR Vs. A RAMAN CHETTIAR

JUDGEMENT

(1.) THIS appeal is by defendants 1 to 3 in a suit for declaration of title and possession, or, in the alternative, for recovery, of landed property.

(2.) THE plaint schedule describes the suit property as 10 acres in the 138 acres 30 cents being R. S. No. 48 of Keezhur amsom. But, at the trial he confined his claim to 7 acres 20 cents which is marked as plot 'a' in Ext. Cl, the commissioner's plan, which plot only will therefore be referred to hereinafter as the suit property. Plaintiff claims the suit property to belong to the Kavut Parambil Ganapathi Devaswom, whose uralers are defendants 4 to 7, from whom he claims to have obtained a lease evidenced by the Marupat ext. B35 (Copy is Ext. Al) executed by himself on February 23, 1948. It recites lease of 20 acres of land and its prior possession to have been with plaintiff under an oral lease of the year 1935 (1110 M. E.) THE plaintiff alleges to have been obstructed by defendants 1 and 2 when he put up a shed on the property in 1953, which culminated in proceedings under S. 145 Crl. P. C. before the First class Magistrate, Tellicherry, who declared the letter to be in possession of the suit property and a Criminal Revision Petition preferred by him against that order to have failed in the High Court. He has therefore instituted this suit. THE defendants 1 to 3 contended the entire R. S. No. 48 to have belonged to the Keezhur Edom, (tarvad) and been allotted to the 3rd defendant's tavazhi in partition under the final decree Ext. B126 dated January 2, 1946, and delivered to him through Court on February 26, 1948, as evidenced by the delivery report Ext. B129. Soon thereafter 3rd defendant had to institute O. S. No. 96 of 1948 against one Mayan who trespassed on a part of th6 Survey number, immediately west of the suit plot, under cover of a lease from the uralers of the Devaswom, the present defendants 4 to 7 who were made co-defendants therein. That suit was decreed for possession with damages and mesne profits, by the subordinate judge on 30th September 1953, and the appeal by defendants 4 to 7 was dismissed by the District Judge, on November 7, 1956 (vide Exts. B127 and B130 ). Defendants 1 to 3 assert that the entire R S. no. 48 was in th3 direct possession of the Edom before the partition suit, and with dw. 12, the receiver appointed in the suit, during the suit, and with the 3rd defendant after date of Ext. B129 THE 3rd defendant demised 35 acres in the survey Number as per Ext B43 dated July 22,1949, to DW. 6, who assigned parts thereof on July 28, 1950, as per Exts. B44 and B45 to Vasurnathi Amma and lakshmikutty Amma, from whom defendants 1 and 2 have obtained assignments on november 18,1953 as per Exts. B46 and B47 and entered possession. THEy denied the plaintiff to have possession of the property or any right thereto. THE Subordinate Judge held the Devaswom to have no title to the property, found its title with the 3rd defendant, and possession with the plaintiff even before date of Ext, Al and decreed possession to the plaintiff with mesne profits. On appeal, the District Judge affirmed it. Defendants 1 to 3 have come up in second appeal.

(3.) THE material question, decided in the Courts below and canvassed in this Court, is of possession of the suit property. THE Courts below have concurred to find possession with the plaintiff; and, as a finding of fact concurrent, it is normally unchallengeable in second appeal. But counsel for appellants contends that that finding has been arrived at overlooking certain material evidence on record and has to be reviewed in this second appeal. That has to be heard and determined. THE plaintiff claims, and that is supported by defendants 4 to 7, that he has been in possession of the suit property under an oral lease since 1935. THE recital to that effect in the marupat executed by him in favour of defendants 4, 6, and 7 cannot advance his case any further than the plea. As dealings of landed properties of a Devaswom by its uralers can seldom be oral, it requires strong evidence in support before it can be accepted by court. THE plaintiff, as PW. 1, has sworn to his oral lease having been affirmed by annual rent receipts since 1936: "till 1948 I paid rent. I gave direct to the uralers. I paid at the rate of Rs 15/ -. Devaswom had counter foil receipts. I had got receipts from 1111 onwards at Rs. . 15/-year. Receipts were with me. THEre were 12 receipts. " He has neither produced any of the receipts, nor sought to prove them through counterfoils kept by the Devaswom. He admits candidly: "there is no document to show my possession before the marupat. " His story of rent-receipts therefore convinces little. He has examined six witnesses as PWs. 2 to 7. PW. 2 is the son of a lessee of the land adjoining north of the suit property. He swore in chief examination: "i am in possession of 7 acres in RS. No. 48. It is under Keezhur Edom. My father Keloth Chozhan Krishna Kurup obtained the lease orally. It was in 1935. Even at that time I used to go to the property. THE southern boundary of that property is road. On the south of the road the plaintiff is in possession. In the year we got possession the plaintiff was also there. From that year till now the plaintiff is in possession of the property on the southern side of the road. " But in cross-examination, he admitted categorically: "i used to see the plaintiff from 1953 once or twice in a year when I used to go to my property. . . . First time I went was 12 years ago. . . . " and in re-examination: "for getting work done there I began to go only 12 years ago. " He was swearing in 1961. According to the age given by him, he was only about 10 in 1935, the date of the oral lease to his father. He admits: 'my father is alive. I know about the oral lease from what my father told me. . . . Father can give evidence in Court. " Obviously his statement as to the oral lease was hearsay and therefore no evidence. His testimony is clear that he could have, if at all, seen the plaintiff at the spot only since 1953 that too very rarely, once or twice a year. It is hardly convincing as evidence of a neighbour's possession. PW. 3 is an assignee in 1957 of the late Madathi Kunhi who claimed to be a lessee of a small plot to the east of the suit property under the devaswom. Swearing in June 1961, he deposed even in chief-examination: "on the west of my property the plaintiff is in possession. He is seen in possession from 10 to 15 years ago. " Even if full credit is given to this statement it does not refer to possession before 1946. It avails little in this suit instituted in June 1956 to establish title with plaintiff. PW. 4 is a lessee under the plaintiff as per the marupat ext. A21 dated January 31, 1955, of 4. .