IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 SA.No. 923 of 1998(B) ----------------------------- AS.220/1996 of SUB COURT, NEDUMANGAD OS.23/1991 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S): APPELLANT/DEFENDANT ----------------------------------------------------------- MOHAMED HANEEFA S/O. HAJI MOHAMED KUNJU, KIZHAKKUMKARA PUTHEN BUNGLOW, PANAVOOR, VETTAMPALLI MURI, PANAVOOR VILLAGE. BY ADV. SRI.L.MOHANAN RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------------------------------------- 1. SALMA BEEVVI NABEEZA BEEVI, THEKKUMKARA PUTHEN VEEDU, KOLLA, VETTAMPALLI MURI, ANAD VILLAGE. 2. NABEEZA BEEVI RAMLA BEEVI, OF DO. DO. R1 & R2 BY ADVS. SRI.UNNIKRISHNAN, SRI. P.V.RAMESH SHANKER SRI.G.P.SHINOD THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2011, THE COURT ON 16/03/2011 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 923 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of March, 2011. JUDGMENT The defendant, who suffered a decree at the hands of the trial court and which was confirmed in appeal, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiffs, the first plaintiff obtained the suit property as per Ext.A1 dated 28.10.1957. The plaintiff has been residing in the building in the said property eversince then. In 1996 she executed a gift deed in favour of her daughter, the second plaintiff. The plaint schedule property lies on the southern side of the Panchayat road leading to Venkavila from Moozhi. The property is well bounded on all four sides. The description in the earlier document, and also in the document in the name of the first plaintiff shows that the survey number and extent of the property as comprised in old Sy. No.2585/13 S.A.923/1998. 2 (Re.Sy.2718/2. 94 cents). Recently the plaintiff came to know that after the resurvey the correct survey number of her property is 2607/2 and the actual extent is only 67 cents. The defendant has no manner of right over the suit property. Taking advantage of the fact that there are some mistakes in the document of title of the plaintiffs regarding the survey number and extent, the defendant is trying to assert rights over the suit property. On the basis of these allegations the suit for injunction and declaration was laid. 3. The defendant resisted the suit. According to him, the entire property in Re-Sy. No.2607/2 belongs absolutely to him. The document of title relied on by the plaintiff does not relate to the property in the said survey number. Defendant's father acquired the property as per Ext.B3 document. Thereafter, after his death, the defendant has been in possession of the property. It so happened that while the defendant's father was in possession of the property, the first plaintiff's husband was allowed to reside in the building. He thereafter asserted his kudikidappu right S.A.923/1998. 3 and in lieu of his claim 20 cents was allotted. Except for the permission so granted and the 20 cents so given, the plaintiffs have no right in the rest of the property in Re.Sy. No.2607/2. Subsequently, the other sharers of the property have executed Ext.B1 release deed in favour of the defendant and thereafter he is in absolute possession of the property. The plaintiffs have no manner of right except for the 20 cents as already mentioned. On the basis of these contentions, he prayed for a dismissal of the suit. 4. Necessary issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A11 from the side of the plaintiffs. The defendant examined himself as D.W.1 and had Exts.B1 to B3 marked. Exts.C1 and C1(a) are the commission report and plan. The trial court on an evaluation of the evidence in the case came to the conclusion that the claim put forward by the plaintiffs is correct and granted a decree in their favour. The defendants took up the matter in appeal as A.S. 220 of 1996 S.A.923/1998. 4 before the Sub Court, Nedumangad. The lower appellate court after an independent evaluation of the evidence concurred with the trial court and dismissed the appeal. Hence the Second Appeal. 5. Notice is seen issued on the following questions of law: “(1) Is the principle 'falsa demonstrate non nocet' applicable to decide the question of identity of property? (2) Is not incumbent on the plaintiff to prove his title and possession in a suit for declaration of title and possession? (3) Is it not incumbent on the plaintiff to prove that there is mistake in Sy.No., extent and boundaries when he alleges so, inorder to get a declaratory decree over another property than the one stated in the documents? (4) Is it not illegal in deciding the location of the survey sub divisions on the basis of the descriptions made in the document? (5) Is it not illegal in finding possession over property only on the basis of evidence of S.A.923/1998. 5 possession or a building which is not proved to be in the property?” 6. Learned counsel appearing for the appellant pointed out that the courts below were not justified in decreeing the suit especially when it is not shown that the property obtained by the plaintiff by virtue of the various documents relied on by them is comprised in Re.Sy. No. 2607/2. After having found that the extent and survey number do not tally, the courts below were unjustified in relying on the principle that the property is identified by its boundaries for granting a decree in favour of the plaintiffs. According to learned counsel, the documents to show that really the property of the plaintiffs was comprised in Re.Sy. No. 2607/2 were not produced and in the absence of those documents decree ought not to have been granted. Attention was also drawn to the commission report and it was pointed out that the claim of the defendants that 20 cents were given to the husband of the first plaintiff looks S.A.923/1998. 6 highly probable. The reasons given for rejecting the claim of the defendant that he had properties in Re.Sy. No. 2607/2 is unsustainable both on facts and in law. According to the learned counsel, both the courts below have misdirected themselves on facts and have nor appreciated the evidence in the proper perspective resulting in perverse findings. 7. Per contra, learned counsel appearing for the respondents pointed out that the courts below have meticulously analysed the evidence in the case and have come to the conclusion that the property obtained by the plaintiffs as per Ext.A1 is really comprised in Re.Sy. No.2607/2. The courts below applied the right principle of law to come to such a conclusion. Both the courts below have found that the old survey number of Re.Sy. No.2607/2 is 2585/13. Ext.B3 document, which is the earlier document of title, on which the defendant relies, does not contain any property comprised in old Sy. No.2585/13. Therefore, the claim of the defendant that he has properties in Sy. No.2607/2 cannot be countenanced. Accordingly, it is S.A.923/1998. 7 contended that there was no merit in the appeal and it is only to be dismissed. 8. While the plaintiff would claim that though the survey number shown in her document is old Sy. No.2585/13 (Re.Sy.2718/2) recently she came to know that her property is comprised in Re.Sy. 2607/2. She claims that there was a bonafide mistake in her document and even though the extent shown is 94 cents, she owns and possesses only 64 cents. One has to remember that the suit is based on title and the entire burden is therefore on the plaintiff to establish her title in order to get relief in the suit. The plaintiff cannot take advantage of the weakness in the defence case. Even assuming that the defendant fails to establish that he has any property in Re.Sy. 2607/2, that cannot automatically result in a decree in favour of the plaintiffs. 9. Ext.A3 is the earliest document of title of the plaintiffs. Then it is followed by Exts.A2, A1 and A5. In Ext.A3, the survey number shown is 2583/13. In Ext.A1 S.A.923/1998. 8 document as well as in Ext.A2 document, which are of the years 1957 and 1952 respectively, the resurvey number shown are 2718/2 and 2585/13 and the extent shown is 94 cents. In Ext.A4, which is dated 14.12.1976, the gift deed executed by the first plaintiff in favour of the second plaintiff, the properties are seen mentioned as comprised in old Sy. No.2585/13, the resurvey number of which is shown as 18 cents in Re.Sy. No.2718/2/1, 44 cents in Re.Sy. No.2712/2/2 and 22 cents in Re.Sy. No.2712/2/3, having a total extent of 94 cents. One may here again refer to the boundaries. In Exts.A1 to A4, they are identical. 10. According to the commissioner's report, the property was identified and measured using survey plan and with the help of Taluk Surveyor. Before going into the commissioner's report, one fact may be noticed. The boundaries of the properties covered by the documents in favour of the plaintiffs are as follows: West : പരയട North : way S.A.923/1998. 9 East : way South : Adichan's പരയട The commission report shows the boundaries as follows: East : Narayanan Asari's പരയട South : Moozhivenkavila തട West : Sasi വക rubber estate North : Salahudeen's property. 11. The commission report discloses that the total extent of the property in Re.Sy. No.2607/2 is 2.85 acres. Going by Exts.A1 to A4 and the commissioner's report, it can be seen that the only common features in the deeds is the southern boundary. It is significant to notice that the trial court has relied on the oral evidence of the parties to determine the identity of the properties and its boundaries. The trial court seems to have accepted the evidence of P.Ws.1 and 3 though the plaintiffs did not get full support from Exts.C1 and C1(a) to claim that the identity of the property was established. It would appear from a reading of the trial court judgment that the court was more concerned S.A.923/1998. 10 in determining the identity of the property obtained by the defendant as per Ext.B3 and subsequently by Ext.B1. After having found that the defendant did not get any property in Sy. No.2585/13, the trial court relies on the maxim 'falsa demonstratic non nocet' and holds that the plaintiffs' property can be identified to be comprised in Re.Sy. No.2607/2. 12. The lower appellate court bases its conclusion mainly on the commission report. This will be evident from paragraphs 7 and 10 of the appellate court judgment. The appellate court observed that there is not much dispute regarding the boundaries of the plaint schedule property between the parties. That may not be quite correct. The trial court had found that except the southern boundary, none of the other boundaries tally. According to the plaintiffs, the western boundary of their property is the pathway. The best evidence in this regard would have been the commissioner's report. The commission report does not disclose any pathway on the western side. Both the trial S.A.923/1998. 11 court and the appellate court based on the oral evidence adduced by the plaintiffs came to the conclusion that there is a pathway on the western side. One fails to understand as to why the plaintiffs were not diligent enough to show the commissioner that there was infact a pathway situate on the western side. 13. The real issue in this case is actually the identity of the property. 14. One shall not forget that the defendant has a case that the first plaintiff's husband was given 20 cents in Sy. No.2607/2 out of the property obtained by his father under Ext.B3. It is true that the commission report discloses that the 67 cents identified by the commissioner is comprised within well defined boundaries. It is also equally significant to notice that the commissioner also states that 20 cents, which the defendant says was given to the husband of the first plaintiff, lies within well defined boundaries. One cannot omit to notice that the commission report shows various constructions within the 20 cents. S.A.923/1998. 12 15. It is true that Ext.B3 document of title of the defendant does not show that his father had given any property in Sy.No.2585/13. Several items of properties were obtained by him in various survey numbers. Merely because Ext.B3 does not disclose that the father of the defendant did not obtain any property in Sy. No.2585/13, it does not lead to the conclusion that they had no property in Sy.No.607/2. One has to recollect here that going by the commission report the corresponding Re.Sy. No. is 2607/2, which has a total extent of 2.85 acres out of which plaintiffs laid claim to only 94 cents. There is no attempt from the side of the plaintiffs to establish that the Re.Sy. Number of the old Sy. No.2585/13 is 2607/2. 16. The evidence of P.W.1 is infact against her. P.W.1 has stated that she came to know that there is a mistake in the Sy. number etc long before. When she had gone to the Village Office to pay tax in respect of the property, she says that she was told that she had no property in Re.Sy. No.2607/2 and her property was S.A.923/1998. 13 elsewhere. For reasons best known to her, she did not take any steps thereafter and continued to mention the same survey number shown in Ext.A3 in subsequent documents also. It is here one has to notice that in Ext.B1 document executed by the brothers and sisters of the defendant in his favour shows that the property is comprised in Re.Sy. No.2607/2. Ext.B1 is of the year 1975. It is difficult to believe that in 1975 the defendant would have included Sy. No.2607/2 clandestinely anticipating a suit from the plaintiffs in 1991. This is not to say that the defendant has property in Sy. No. 2607/2. To say that merely because Ext.B3 does not indicate that the father of the defendant did not obtain any property in Sy. No.2585/13 means that he could not have any property in Re.Sy. No.2607/2 cannot be countenanced unless it is shown that the entire property comprised in Sy. No.2585/13 is comprised in Re.Sy. No.2607/2. The evidence discloses that the total extent of property in Re.Sy. No.2607/2 is 2.85 acres, wherein the plaintiffs lay claim only to 67 cents. S.A.923/1998. 14 17. Even after coming to know that the survey number shown in her document is wrong, still when Ext.A4 document was executed on 14.12.1976, which is subsequent to Ext.B1 document, the Resurvey number is again shown as 2585/13. One has to notice that no property tax has ever been paid by her in respect of her property. She says that when she went to the Village Office to remit tax, she was informed that she had no property in Sy. No.2607/2. Ext.A5 survey plan produced is of no help. The best evidence would have been to produce the co-relation register, which would have shown the corresponding old survey number and also the fact that the predecessor in interest of the defendant did have any property in Re.Sy. No.2607/2. 18. It is seen from the records that the defendant had taken objection to the resurvey proceedings. It seems that his claim was rejected. But the said document is seen produced at appellate stage but not admitted in evidence. Therefore apart from the fact that the defendant had no S.A.923/1998. 15 opportunity to meet that document, it cannot be relied on also. 19. The commission report discloses that there are considerable improvements in the property. Both the first plaintiff as well as the defendant claim that they are taking usufructus. Both of them have not adduced any independent evidence to establish their claim. But as already stated, the burden is on the plaintiffs to prove their title and possession. 20. Faced with the above situation, learned counsel appearing for the respondents pointed out that atleast the possessory title of the plaintiffs may be declared and injunction may be granted against the defendant from interfering with her possession. 21. One cannot omit to note that the suit is one based on title and the criterion for determining the issues in a suit based on title and possession are entirely different. Merely because Ext.B3 does not take in any property comprised in Sy. No.2585/13, one cannot jump to the S.A.923/1998. 16 conclusion that the defendant had no property in Re.Sy. No.2607/2. One fails to understand as to why consistently the plaintiffs have been showing Re.Sy. No.2718/2 in all her documents and the extent as 94 cents even after she was alerted by the Village Officer. There was no attempt from her side to ascertain the correct resurvey number of her property and for reasons not known co-relation register was not summoned or got produced. As regards the boundaries of the properties are concerned, the courts below seem to rely on the oral evidence, which is rather strange. It is seen that the southern boundary of the plaint schedule alone tally with the boundary noticed by the commissioner. It is felt that there has been no proper consideration of the issues in the suit and a reconsideration is necessary. In the result, this appeal is allowed, the impugned judgment and decree are set aside and the matter is remanded to the trial court for fresh consideration in the light of what has been stated above. The parties shall appear before the court below on 6.4.2011. The parties will S.A.923/1998. 17 be at liberty to adduce further evidence if they so choose. The trial court may make every endeavour to dispose of the suit as expeditiously as possible at any rate within a period of nine months from the date of appearance of the parties. P. BHAVADASAN, JUDGE sb.