The 4th defendant in the original suit is the appellant.
2. The 1st respondent herein approached the trial court for mandatory injunction to demolish the structure in the plaint B schedule property and for recovery of possession of the land and also for permanent prohibitory injunction. The plaintiff based his claim on Ext.A1 notice of hearing, Ext.A2 certificate of purchase and Ext.A3 order of the Land Tribunal in a suo motu proceeding.
3. The defendants, who resisted the suit, contended that they were not parties to the proceedings and are not bound by the same. The appellant/4th defendant would contend that the same has been lost sight of the courts below and the plaintiff has not independently established his lease hold right. The appellant/4th defendant relied on Ext.B5 notice issued by the PWD Department in a proceeding for summary eviction to establish that the plaint B schedule lean-to is constructed over a PWD 'puramboke land', over which, the plaintiff has no title. The appellant alleges that nevertheless the courts below have granted a decree for mandatory injunction as well as recovery of possession and prohibitory injunction, all of which cannot co-exist in law.
4. I have heard the learned counsel for the appellant and the learned counsel for the 1st respondent. I have also perused the judgments of the trial court as well as the lower appellate court.
5. Though originally, the trial court, by its judgment dated 19.12.2001, dismissed the suit considering the evidence on record consisting of the testimonies of PW1, DW1 & DW2 and Exts.A1, B1 to B4 series, C1 & C1(a), the plaintiff preferred an appeal against the judgment before the District Court, Palakkad as AS No.120/2002, which was allowed remanding the case to the court below for fresh disposal. After the remand, the commission report was remitted to the same Advocate Commissioner, who, after inspection of the properties with the assistance of the surveyor, submitted Exts.C2 report and C2(a) plan. The Advocate Commissioner was also examined as CW1. Exts.A2 and A3 on the side of the plaintiff and Ext.B5 on the side of the defendants were marked additionally. The trial court, after reconsidering the evidence, decreed the suit. Against that, an appeal was filed, which also came against the defendants.
6. The plaintiff claims title to plaint A schedule property having an extent of three cents comprised in Sy.No.276/13 as per Ext.A2 purchase certificate. The defendants contended that the area of the property belonging to the plaintiff is only 1.25 cents. Ext.A3 order shows that the right, title and interest of the land owner and intermediary in respect of plaint A schedule property were assigned to the plaintiff. It was on the basis of Ext.A3, Ext.A2 purchase certificate was issued.
7. Section 72(k) of the Kerala Land Reforms Act gives presumption that the purchase certificate issued by the Land Tribunal is a conclusive proof of the assignment of the right, title and interest of the land owner and the intermediary over the land. Though it was contended that the said purchase certificate was obtained by fraud, the defendants have failed in establishing the same. The plaintiff relied on Ext.B1, which was executed during the pendency of the suit. But, the courts below were not inclined to rely on Ext.B1, relied on by the defendants.
8. Ext.C2(a) is the plan, wherein the property of the plaintiff is shown in yellow shade and the property of the defendants is shown in blue shade. The yellow shaded portion is having an extent of 1.457 cents and the blue shaded portion is having an extent of 1.360 cents. The disputed area is shaded in green colour having an extent of 469 square links. The area of the property shown in yellow and green shades is only 1.926 cents though, as per Ext.A2 purchase certificate, the plaintiff claims title to three cents. Though the defendants contended that the structures in the disputed portion was constructed by them along with the other structures in their possession, the Advocate Commissioner's report would go to show that the age of the lean-to was only two years at the time of his inspection.
9. The real dispute is with respect to a small bit of land having an extent of 469 square links, which is green shaded in Ext.C2(a) plan. The property was properly identified and measured out by the Advocate Commissioner. Both the courts below, on appreciation of evidence on record, found that it is the part of the property belonging to the plaintiff by virtue of the purchase certificate in his favour. The evidence has been correctly appreciated by the courts below. No substantial question of law has been wrongly decided by the courts below calling for interference by this Court. Therefore, this Court finds no reason to interfere with the decisions of the courts below.
In the result, the appeal fails; and accordingly, it is dismissed.
As the copy of Ext.C2 plan is not seen appended to the decree, the lower court is directed to append a copy of Ext.C2 plan to the decree. It is hereby made clear that it is open to the execution court to explore the possibility of settlement through mediation if the parties are willing.
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A.V. RAMAKRISHNA PILLAI, JUDGE