MOHAMMED ABDUL KADAS Vs. DISTRICT COLLECTOR OF KANYAKUMARI

JUDGEMENT

(1.) APPELLANTS and respondents 2 and 3 are the legal representatives of the deceased Osan Pillai who filed the suit for a declaration of his title to the properties involved in the L. C. Cases 3, 4 and 5 of 1957 of Ezhudesom village, for possession of the said properties with mesne profits at Rupees 1,500/-per year from the date of the suit till recovery of the properties, for recovery of Rs. 1,780. 63/- paid as fine and prohibitory assessment and in the alternative for recovery of Rs. 1,5000/- as value of improvements with interest at 6 per cent, per annum from the date of the suit till the date of recovery.

(2.) APPELLANTS 1 and 2 and one Mohammed Pathummal were brought on record as the legal representatives of the deceased Osan Pillai. But subsequently, mohammed Pathummal died and there were rival claims by Appellants 3 and 4 on the one hand who claim as heirs and respondents 2 and 3 on the other who claim under a will. There appears to have been an agreement between the parties. But as pointed out by the trial Court, the dispute between Plaintiffs 5 and 6 (respondents 2 and 3) and plaintiffs 7 and 8 (appellant 3 and 4) is left open to be determined in separate proceedings between them.

(3.) OSAN Pillai claimed the suite properties as forming part of Survey Nos. 1609, 2362 and 1629 of Ezhudesom village registered in his name. But proceedings were taken by the first respondent herein. District Collector of Kanyakumari, in pursuance of the notice under Section 10 of the Travancore-Cochin Land conservancy Act, 1951 (Act XIX of 1951) (hereinafter referred to as the Act) on the ground that the suit properties formed part of Survey Nos. 1610, 2363 and 1628 of Ezhudesom village, the said lands being part of river poramboke. The learned Subordinate Judge of Nagercoil, on a consideration of the evidence in this case found that the plaintiffs have failed to prove that the suit lands formed part of the holdings of the first plaintiff. P. W. 1 is the power of Attorney agent and son-inlaw of the second plaintiff. The learned Subordinate Judge has rightly pointed out that his knowledge of the suit properties could be only from the time of his marriage in 1119, M. E. and that he does not know the details of the suit properties, such as the survey number, sub-division etc. P. W. 2, S. Padmanabha iyer, is an advocate practicing in Nagercoil and he was appointed Commissioner in the suit. It is true that he gave a report supporting the claim of the plaintiffs. But the learned Subordinate Judge has dealt with his evidence in paragraph 13 of his judgment and he did not rely on it. A reading of the evidence of P. W. 2 Padmanabha Iyer is sufficient to show that the criticisms made by the learned Subordinate Judge are well-founded. He (P. W. 2), did not even locate the A. V. M. channel. He did not make any attempt to get the survey plans of the locality. Evidently he has been misled into making the report in favour of the appellants solely on the ground that the suit properties are bounded on one side by the registered lands of the first plaintiff. Learned advocate for the appellants urged that as the Commissioner's report has not been accepted, the trial Court should have reissued the commission to locate the suit properties with reference to survey plans, stones etc. But no such attempt was made by the plaintiffs in the lower court, when criticisms were levelled against the evidence of p. W. 2. Further, the finding of the trial Court that the suit properties formed part of the river poramboke is based on the evidence of P. W. 1 Subbiah Pillai, the village Officer of Ezhudesom village and P. W. 2 Samuel D. Mosa the Revenue supervisor during the relevant period from July 1956 to March 1961. We do not therefore feel any need to reissue the commission to correctly localise the suit properties. It is abundantly clear from the evidence of D. Ws. 1 and 2 that the suit properties are in survey Nos. 1610, 2363 and 1628 of Ezhudesom village which are river poramboke lands.