Ramachandran Nair, J.
These four appeals have been filed by the common appellant, viz. Plantation Corporation of Kerala, aggrieved by the decrees and judgment rendered by the court below. The Corporation is the common plaintiff in O.S. Nos.153/92, 20/94, 21/94 and 22/94. All the suits were tried together and a common judgment has been rendered. The operative portion of the judgment will show that O.S. Nos.153/92, 20/94 and 21/94 have been dismissed. In O.S. No.22/94 the plaintiff is given a decree in part for recovery of 39 cents in tune with the description in Exts.C14 and C16.
2. Learned counsel for the appellant Corporation submitted at the outset, that all the suits can be re-tried after making the Government also a party, in the light of the judgment rendered by the Division Bench in Plantation Corporation of Kerala Ltd. v. Gowri and others (ILR 2013 (3) Ker. 395). The same is opposed by the learned Senior Counsel appearing for the respondents in R.F.A. No.361/2007, Shri S.V. Balakrishna Iyer and learned counsel Shri R. Sree Prakash K. Nair and Shri M. Gopikrishnan Nambiar appearing for the respondents in the other appeals. It is submitted by Shri S.V. Balakrishna Iyer, learned Senior Counsel that the decision on merits taken by the court below will show that as far as the respective defendants are concerned, their title in respect of the parcels of land has been determined independently by cogent evidence. The Corporation has not been able to establish any right on those plots. Therefore, even if the Government is impleaded, no worthwhile purpose will be there. Therefore, we proceed to consider the merits of the matter.
3. Shortly stated, the necessary facts for the disposal of the appeals are the following: The plaintiff's case is that an extent of 1268.74 acres of land in different survey numbers of Cheemeni Village originally belonged to one George Thomas Kottukappally, who surrendered the same in ceiling proceedings. The Government had accorded sanction for transfer of the said property to the plaintiff Corporation for the purpose of planting cashew plants and pursuant to the said Government Order, the District Collector had handed over possession of the property to the Assistant Superintendent of Cheemeni Estate of the plaintiff Corporation. The entire area was measured and a plan was prepared with the assistance of the surveyors. On 29.6.1977 the property came into the actual physical possession of the Corporation and thereafter the Corporation started planting cashew plants in a scientific way. On the boundary of the area taken possession of, the Corporation planted casurina trees in a row at regular intervals. An extent of 546.14 acres in R.S.No.260/1A1A1 was also included in the said total extent. The plaint schedule property in O.S.No.153/92 is part of the said area and the defendants have no manner of right.
4. As far as O.S.No.20/94 is concerned, the derivation of the title is the same that is claimed by the plaintiff. The plaint schedule property therein is also claimed as part and parcel of an area of 313.60 acres in R.S. No.260/1A1A1. According to the plaintiff, the defendants have tried to trespass upon the property on 13.8.1984.
5. In O.S. No.21/1994 also the pleadings are the same as far as the plaintiff's title is concerned and the property is claimed to be part and parcel of 313.60 acres in R.S. No.260/1A1A1. The allegation is that the defendant tried to trespass upon the property and he occupied the same on 10.9.1984.
6. In O.S. No.22/1994 it is contended that the plaint schedule property is part and parcel of an area of 313.60 acres in R.S.No.260/1A1A1 and on 14.7.1984 the defendants trespassed into the suit property. Going by the pleas in the written statement filed by the respective parties, various contentions have been raised to show that the Corporation has no real title to the property. In O.S. No.153/1992, the defendant claimed that the suit property originally belonged to Thazhakkat Mana in jenm and one Nangarath Kunhipari had obtained leasehold right from the jenmi and he had effected improvements. He assigned his right to one Kunhambu as per document dated 7.8.1904. The assignee was in possession of the said property for a period of 58 years. He was paying purappad to the jenmi and effecting improvements in the property. The said Kunhambu sold the property to the defendant as per document dated 27.10.1962 for a consideration of Rs.850/-. Thereafter, he had been improving the property by effecting various cultivations like rubber, coconut, cashew, etc. He had also constructed a residential building therein. He paid purappad to the jenmi till 1970 and thereafter he was paying basic tax to the Government. One of the contentions taken by the defendant was that the suit property was not part and parcel of the property surrendered in ceiling proceedings or handed over to the plaintiff Corporation and that the defendant is a cultivating tenant.
7. In the written statement filed in O.S. No.20/1994 it was contended among other things, that the plaintiff has no manner of right or possession over an extent of 5.50 acres which is lying as a compact plot with demarcated boundaries. Out of it, 3 acres was obtained by one Dasan, father of the second defendant from the then jenmi and he was in possession of the same as a tenant. Dasan had assigned the tenancy right to his daughter Janaki 20 years back and put her in possession of the same. The remaining 2 acres were obtained by the first defendant from the original landlord and he was in possession of the land as a cultivating tenant. In O.A. No.12803/1975 before the Land Tribunal, a favourable order was passed in his favour and patta has been obtained. The western boundary of the entire property is Cheemeni - Pedavur road and the plaintiff's property is beyond this road.
8. In O.S. No.21/1994 the defendant contended that he had obtained the property extending over 6 acres from Thazhakat Mana in the year 1945. He was paying purappad to the Jenmi and he had effected various cultivations there. He also contended that he is a tenant entitled to fixity of tenure. Various other contentions have been raised therein.
9. In O.S. No.22/1994 it is contended that the defendant had originally obtained the property from Thazhakkat Mana through one Keloth Kannan who had kuzhikanom right. He assigned his right in favour of Narayani by a registered document and Smt. Narayani has been in possession and enjoyment of the property. She obtained jenm right in proceedings in O.A. NO.8259/1975. She assigned her jenm right in favour of the defendant as per registered sale deed No.1424/1984 and thereafter he has been in possession of the property.
10. Both sides adduced evidence in the matter and we find that various documents have been produced which have been marked as Exts.A1 to A11 on the side of the plaintiff and Exts.B1 to B21 on the side of the defendant. Exts.C1 to C16 are: Commission reports, further reports and plans. The plaintiff has examined one witness and the defendants have examined D.Ws.1 to 5.
11. As far as R.F.A. No.361/2007 is concerned, which is the appeal from O.S. No.20/1994, learned counsel for the appellant and learned Senior Counsel for the respondents took us through the pleadings and evidence in the matter. The relevant findings rendered by the court below are based on the commission report and plan. Paragraph 22 of the judgment shows the relevant findings. It is in evidence that the defendants have obtained purchase certificate from the Land Tribunal. The total extent of the property is 5.50 acres. Defendant No.1 was examined as DW.2. The crucial question therein was whether the property lies west of Cheemeni - Pedavur road and it was the definite plea of the defendants that the said road is immediately west of the total extent of their property. This was seen admitted by P.W.1. Exts.C1 and C4 are the reports and plans of the commissioner. We have gone through Ext.A2 eye-sketch as well as Exts.C1 and C4. Apart from the above documents, Shri S.V. Balakrishna Iyer, learned Senior Counsel invited our attention to Exts.B11 and B12 which are the receipts showing payment of pattom.
12. Going by the evidence, the property of the plaintiff Corporation is west of Cheemeni - Pedavur road. The said road, even going by the plaint, is the western boundary of the plaint schedule property. Learned counsel for the Corporation pointed out that in Ext.A2 sketch certain items of properties shown as occupied by private parties have been shown. But as far as the appellant's evidence is concerned, it is not shown that the property claimed by the defendants is part of Ext.A2 or the property transferred after Ext.A1 mahazar was prepared. The Commissioner's report shows that the commissioner has verified the Village records before preparing the plan and the Assistant Village Officer was present to assist him to identify and measure the property. As far as the report and plan prepared by the Commissioner is concerned, there is clear evidence to show that the property of the defendants lies east to the said road. In the report he has clearly identified the suit property and the eye-sketch is seen compared with the plan Ext.C2 prepared by the Commissioner. He has stated, based on such records, that the suit property is not included in the property covered by Exts.A1 and A2. Ext.C4 plan shows the 313.60 acres covered in the eye-sketch dated 29.6.1977. It is lying west of Cheemeni - Pedavur Road. Apart from the same, he has obtained patta from the Land Tribunal. In the light of the provisions of Section 72-K of the Kerala Land Reforms Act, the defendants are well justified in relying upon the said certificate. Learned Senior Counsel also relied upon the decision of this Court in Ahmmed Kutty v. Mariakutty (2000(1) KLT 829) holding the view that once purchase certificate is granted by the Land Tribunal, the same is conclusive. Of course, it could be challenged, but it can only be on the ground of fraud. No such plea has been raised here. In that view of the matter, we find no reason to interfere with the decree and judgment which is under challenge.
13. R.F.A. No.362/2007 is from the judgment and decree in O.S. No.21/1994. The discussion of the evidence in the said case is contained in paragraph 23 of the judgment. The defendant was examined as D.W.3. Ext.B14 series were relied upon by the court to show that he was residing in the building existing in the property from 1963 onwards. The court below has mainly relied upon Ext.C5 commissioner's report. Therein, the Commissioner, in paragraph 4 had clearly reported that the property included in the schedule in that suit will not come within the area covered by Exts.A1 and A2 and in 313.60 acres in Sy. No.20/1A1A1 of Cheemeni Village in the eye-sketch or the mahazar prepared by the Tahsildar.. The appellant did not examine the Commissioner also. In that view of the matter, the court below relied upon Exts.C5 to C12 reports and plans to conclude that the property is not covered by Exts.A1 and A2. The issue has gone against the appellant in the light of the fact that the property that is claimed by the appellant could not be identified by way of Exts.A1 and A2 or nor it was proved that the suit property will come within the items covered by Exts.A1 and A2. Ext.B14, the Building Tax Assessment Register of the Panchayat also was relied on. We have also gone through Exts.C5 to C12. The real burden is on the plaintiff to prove the identity of the property. In that view of the matter, we do not find any reason to interfere with the judgment and decree.
14. R.F.A. No.363/2007 is from the judgment and decree in O.S. No.22/1994. The discussion in the judgment is contained from paragraph 24 onwards. A reading of the relevant evidence will show that the defendant claimed his right based on the purchase certificate obtained by Smt. Narayani in O.A. No.8259/1979. The view taken by the court below is that it was for the plaintiff to prove that the proceedings before the Land Tribunal was vitiated by fraud and that the certificate of jenm purchase obtained by the defendant is not legally sustainable. Going by Section 72-K of the Land Reforms Act, the purchase certificate issued is conclusive proof of title. In that view of the matter, the view taken by the court below relying upon the purchase certificate cannot be said to be wrong. The defendant had obtained right from Smt. Narayani through registered document No.1424/1984. When the predecessor had obtained jenm right through the Land Tribunal and in the absence of any challenge against the document, the court below accepted the same.
15. In fact, Exts.C13 to C16 reports and plans filed by the commissioner in O.S. NO.373/1990 had also been discussed. Actually, the plaint schedule property shown is 1.50 acres and the court below, after assessing the reports of the commissioner, viz. Exts.C13 and C16, found against the defendant with regard to the portion of the property identified as ABCD in Exts.C14 and C16 and that the defendant is liable to surrender the same. The extent of the same is 39 cents. We have gone through the above reports and plan. They have been prepared with reference to Village records. But the plaintiff could not establish the title in respect of the remaining items of properties. In the absence of any other evidence in the matter, the court below was right in rejecting the claim in part. Therefore, we do not find any reason to interfere with the said judgment also.
16. A.S. No.71/1998 is the appeal filed by the plaintiff Corporation against the judgment and decree in O.S. NO.153/19922. The discussion of the evidence is available from paragraph 18 onwards of the common judgment. In fact, going by the evidence of P.W.1 also, it can be seen that the jenm right of Thazhakkat Mana and that the lessee, viz. Shri Kunhipari obtained it from the Mana was not disputed. The material evidence produced before the court below by the plaintiff is Exts.A1 and A2. The main documents relied upon by the defendants are Exts.B1 to B10. Ext.B1 is a purappad receipt obtained by Shri Kunhipari from the Manager of Thazhakat Mana. He had transferred his property to Shri Kunhambu by virtue of Ext.B2 and Ext.B3 series are the purappad receipts obtained by Kunhambu from the jenmi. Based on Ext.B4 agreement the defendant was in possession of the property. Exts.B5 and B6 are the receipts showing payment of basic tax and Exts.B7 and B9 are the building tax receipts obtained by the defendant. Based on these documents, it was concluded that the defendant was put in possession of the property in the year 1962. Even though an order was passed by the Land Tribunal dismissing the application for jenm right which was produced as Ext.A5, the court below did not fully rely upon the same since there was a direction by this Court to the defendant to approach the Land Board. The conclusions of the court below are mainly relying upon the documentary evidence. The crucial fact is whether Exts.A1 and A2 will entitle the plaintiff to claim title. Based on the reports of the commissioner the court below has found against the plaintiff.
17. The reports of the Advocate Commissioner will show that the properties have been identified with reference to Village records and with the assistance of the Assistant Village Officer and other officers, in the presence of officers of the plaintiff, learned counsel appearing for both sides and staff members of the plaintiff Corporation. It is seen that the Assistant Village Officer had made available the field measurement book for assisting the Commissioner to identify the suit properties.
18. The plaintiff Corporation could not adduce any evidence to show that at the time of giving possession the properties were measured and properly identified. They have produced only Exts.A1 and A2. Apart from Exts.A1 and A2, no worthwhile evidence have been adduced to prove their claim. They could not adduce sufficient evidence to controvert the evidence available as per the report of the Commissioner. The court below has rightly observed in paragraph 17 that “when the contents of Exts.A1 and A2 are put together and subjected to a combined study coupled with the evidence of P.W.1, it can be concluded that there were private holdings within the area covered by Exts.A1 and A2 and that the plaintiff Corporation did not derive title and possession over this occupied area.” Of course, going by the reports of the Commissioner which we have already discussed, the plaint schedule properties have been identified as not included within the property transferred to the Corporation also.
19. For all these reasons, we find that the plaintiff has failed to establish their right and possession over the plaint schedule properties. There is a total absence of evidence as far as the plea of the plaintiff is concerned. The documentary evidence produced by the defendants have supported their claims also. We find no reason to interfere with the decree and judgment impugned in these appeals.
Therefore, all the appeals are dismissed. The parties will bear their costs in the appeals.
(T.R.RAMACHANDRAN NAIR, JUDGE) (P.V.ASHA, JUDGE) kav/ T.R.RAMACHANDRAN NAIR & P.V.ASHA, JJ.
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JUDGMENT
6TH DAY OF JUNE, 2014