IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 SA.No. 686 of 1998(F) -------------------------------- AS.22/1995 OF III ADDITIONAL SUB COURT, KOZHIKODE OS.528/1985 OF ADDITIONAL MUNSIFF COURT, KOZHIKODE-II .................... APPELLANT/PLAINTIFF IN SUIT/RESPONDENT IN 1ST APPEAL: -------------------------------------------------------------------------------------------- MALIYEKKAL ASSAN, AGED 67 YEARS, S/O.CHEKKU, RESIDING AT NELLALAM AMSOM DESOM OF KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN RESPONDENTS/DEFENDANTS IN SUIT/APPELLANTS IN APPEAL: ------------------------------------------------------------------------------------------------ 1. KOLAKULATH VASU, AGED 63 YEARS, S/O.RAMUTTY, RESIDING AT NALLALAM AMSOM DESOM OF KOZHIKODE TALUK. 2. K. PARANGU, AGED 53 YEARS, S/O.RAMUTTY, RESIDING AT NALLALAM AMSOM DESOM OF KOZHIKODE TALUK. 3. K. PRABHAKARAN ALIAS PREVI, AGED 29 YEARS, S/O.KOLAKULATH CHATHU, RESIDING AT NALLALAM AMSOM DESOM OF KOZHIKODE TALUK. 4. PREETHI, AGED 25 YEARS, D/O.CHATHU, RESIDING AT NALLALAM AMSOM DESOM OF KOZHIKODE TALUK. 5. SUDHA, AGED 23 YEARS, D/O.CHATHU, RESIDING AT NALLALAM AMSOM DESOM OF KOZHIKODE TALUK. 6. BINDU, AGED 21 YEARS, D/O.CHATHU, RESIDING AT NALLALAM AMSOM DESOM OF KOZHIKODE TALUK. 7. KALLIANI, AGED 53 YEARS, W/O.CHATHU, RESIDING AT NALLALAM AMSOM DESOM OF KOZHIKODE TALUK. BY ADV. SMT.LEKHA SURESH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 686 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2011. JUDGMENT The plaintiff, who found himself non-suited by the lower appellate court is the appellant. 2. The suit was one for declaration, recovery of possession and consequential injunction. The plaint schedule property has an extent of 5 ½ cents and forms part of a larger extent of 83 cents. According to the plaintiff, even though as per Ext.A1 he obtained about 1.17 acres of land in R.S.No. 122/1, he lays claim only to 83 cents of land covered by Ext.A3 in R/S. No.122/8A, 122/8B and 122/5. The plaintiff had filed an earlier suit as O.S.253 of 1973 against the defendants seeking permanent prohibitory injunction and recovery of suit property. That was dismissed and was confirmed in appeal. In Second Appeal before this court, this court disposed of the appeal observing that the decision in the said suit will not preclude the plaintiff in the earlier suit S.A.686/1998. 2 from instituting a suit on title. Consequently the present suit has been filed. It is averred in the plaint that the defendants had no manner of right over the suit property and they cannot interfere with the possession and enjoyment of the property by the plaintiff. Since the defendants have trespassed into the property, the suit has become necessary. 3. The defendants resisted the suit. According to them, Ext.A1 document does not include the suit property. They claimed that the plaint schedule property as well as the property nearby belonged exclusively to them. They also contended that Ext.A2 purchase certificate does not take in plaint schedule property. They also contended that by virtue of the decision in the earlier suit, the present suit is barred by res judicata. They disputed the right, title and interest of the plaintiff over the plaint schedule property and prayed for a dismissal of the suit. 4. It appears that initially the suit was dismissed on the ground of res judicata. The plaintiff took up the S.A.686/1998. 3 matter in appeal as A.S.40 of 1980. The lower appellate court was of the view that the present suit was not barred by res judicata, allowed the appeal and remanded the matter to the trial court for disposal on merits. Thereafter evidence was adduced and the suit was again dismissed on the ground that the plaintiff failed to have the plaint schedule property properly identified. The plaintiff took up the matter in appeal as A.S.45 of 1989. The lower appellate court felt that it was necessary to provide and opportunity to the plaintiff to have the plaint schedule property identified and therefore remanded the matter to the trial court enabling the plaintiff to take such steps as are necessary to have the plaint schedule property identified. After the remand, the plaintiff had the commission reports and plans in the earlier suit, namely, O.S.253 of 1973, the suit for injunction filed by him, produced in the present suit. 5. Evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A12 from the side of the plaintiff. The defendants did not adduce any evidence S.A.686/1998. 4 whatsoever. The trial court based on Exts.X2 to X6, plans and reports found that the plaintiff has been successful in having the plaint schedule property identified and also observed that the defendants have not cared to produce their documents of title or to adduce any evidence to show that they have any manner of right over the plaint schedule property. A decree in favour of the plaintiff followed. 6. The aggrieved defendants carried the matter in appeal as A.S.34 of 1995 before the Sub Court, Kozhikode. The lower appellate court chose to take a different view and found that the decree of the trial court is unsustainable. The reason given is that Ext.A2 which is the purchase certificate does not show the extent of the property in each of the survey numbers and therefore it is not possible to identify the property. It also found fault with the commissioner in his observation that the plaint schedule property belongs to the plaintiff, which according to the said court was without any basis. Further, the lower appellate court went on to hold that if there is a mistake in the document of title of the S.A.686/1998. 5 plaintiff, similar mistake can creep into the document of title of the defendants also. Holding that the identity of the property had not been established, the appeal was allowed and the suit was dismissed. 7. Notice is seen issued on the following substantial question of law: “Whether the lower appellate court was justified in reversing the decree of the trial court on the pleadings and the evidence in the case.” 8. Learned counsel appearing for the appellant pointed out that the lower appellate court was not justified in reversing the well considered and reasoned judgment of the trial court, wherein it has considered the entire evidence in considerable detail and has come to the conclusion that plot C shown in Ext.X4 belongs to the plaintiff and it is a part of the property obtained by him as per Exts.A1 and A2. Learned counsel went on to point out that if the defendants had a case that the said portion forms S.A.686/1998. 6 part of their property, it was for them to adduce evidence in that regard to establish the said fact. Attention was drawn to the fact that even though Ext.A1 takes in large extent of property, the plaintiff had confined his claim to 83 cents comprised in R.S. No.122/8A, 122/8B and 122/5. The lower appellate court has not appreciated the evidence in the proper perspective and the inferences drawn on the basis of the Adangal register is erroneous and does not get support from the entries contained in the said document. Finally it is pointed out that the judgment and decree of the lower appellate court cannot be sustained. 9. There seems to be considerable force in the above submission. As rightly pointed out by the learned counsel for the appellant even though Ext.A1 takes in much larger extent, the plaintiff bases his claim on Ext.A2, which contains 83 cents comprised in three survey numbers, namely, Sy. No. 122/8A, 122/8B and 122/5. The reason given by the lower appellate court to find that Ext.A2 cannot be of any help to the defendants is that purchase certificate S.A.686/1998. 7 does not show the extent of property in each of the survey numbers. One fails to understand the logic behind the said reasoning. It was not exclusively on Ext.A2 that the right of the plaintiff was alleged. He also relied on the commission reports and plans wherein the commissioner has stated that he was able to identify the property with reference to the documents. Initially the commissioner did not identify the property belonging to the plaintiff. Later in Ext.X4 plan, the properties of both the plaintiff and the defendants were identified. The commissioner has categorically stated that plot C forms part of the property covered by Ext.A2 purchase certificate. The observation of the lower appellate court that the commission report could not observe so is without basis. The commission report was proved through the commissioner by examining himself as P.W.3. 10. It is here one has to notice that the defendants have not chosen to adduce evidence in support of their case. They remained satisfied with the contention that the plaint schedule property along with other properties belong to S.A.686/1998. 8 them exclusively and the plaintiff had no manner of right. Atleast when the plaintiff had produced the commission reports and plans in O.S.253 of 1973 and got the properties identified through the commissioner, the defendants had to adduce evidence to show that the commissioner report is not acceptable or that the plaint schedule property belongs to them. 11. It is true that the defendants are in possession of property comprised in R.S. No.122/5. It is interesting to note that the plaintiff has produced document of title of the defendants, which is Ext.A12. Going by Ext.A12, it appears that the total extent of property the defendants have in R.S. No.122/5 comes to about 48 cents. One may now have a look at Ext.X4. That shows that plot A, which has been identified as the plaint schedule property comes to about 82 cents. It does not appear that any objection has been filed to the commission report nor the defendants were successful in showing the identification made by the commissioner is wrong. S.A.686/1998. 9 12. It is true that being a suit on title, the burden is on the plaintiff to show that he has title to the property and there is no burden on the defendants to establish their title. But when the plaintiff has produced evidence to show that the plaint schedule property belongs to him, and it is covered by their documents of title, if the defendants have a contention that the property belongs to them, necessarily they will have to adduce evidence in that regard. Here as already noticed, going by Ext.A2 and Exts.X2 to X6, it is clear that plot C shown in Ext.C4 forms part of the property obtained by the plaintiff atleast as per Ext.A2. Under such circumstances, the failure on the part of the defendants to adduce evidence assumes considerable importance. There is nothing to show that the identification made by the Commissioner in Ext.X4 is wrong. 13. Learned counsel appearing for the appellant is right in his submission that the reliance placed on Ext.X1 Adangal register by the lower appellate court is unfounded. It only shows the extent of property and the owner of the S.A.686/1998. 10 property. It does not show who is in actual possession. That can be of no help to the defendants. At any rate, the plaintiff has produced sufficient evidence to show that plaint schedule property which has a total extent of 5.5 cents belonged to them. They have adduced oral evidence as well as documentary evidence to establish the said fact. On the other hand there is absolutely no evidence on the part of the defendants to show that they have got more extent than what is shown in Ext.X4 plan. It is also necessary to note that the commissioner has given side measurements of the properties also. There is nothing to show that the plans and reports filed by the commissioner are incorrect or cannot be accepted. 14. That being the situation, the lower appellate court was not justified in reversing the judgment and decree of the trial court. The trial court has considered the matter in considerable detail and appreciated the evidence in the proper perspective and has reached the right conclusion. The reasons given by the lower appellate court to interfere S.A.686/1998. 11 are based on conjunctures and surmises and not on evidence available on record. On an appreciation of the evidence in the case, the view taken by the trial court appears to be fully justified and the lower appellate court was not justified in interfering with the judgment and decree of the trial court. The question of law is answered in favour of the appellant. This appeal is allowed, the impugned judgment and decree are set aside and the judgment and decree of the trial court are restored. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.