IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 SA.NO. 467 OF 1996(E) ------------------------------------- AS.1/1993 OF SUB COURT, QUILANDY OS.84/1988 OF MUNSIFF COURT, PAYYOLI .................... APPELLANT(S) – RESPONDENT - PLAINTIFF: ------------------------------------------------------ MADAYANKANDY MAMMAD, PURAKKAD AMSOM, KOZHIKODE DESOM, QUILANDY. (DIED) SUPPL. APPELLANTS IMPLEADED: --------------------------------------------- 2. SARA UMMA, MAZARA MANZIL, P.O. THIKKODI, MELADI. 3. NABEESA, VALIYIL HOUSE, KURUVANGAD, QUILANDY. 4. KUNJAMINA, VALIYIL LHOUSE, KURUVANGAD, QUILANDY. SUPPLEMENTAL APPELLANTS 2 TO 4 ARE IMPLEADED AS THE LRS. OF DECEASED SOLE APPELLANT AS PER SEPARATE ORDER DATED 25.11.1995 ON CMP 2585 OF 1998 BY ADV. SRI.K.I.MAYANKUTTY MATHER SMT.JIJIMOL J.VADAKKEN SRI.V.V.ASOKAN RESPONDENT(S) – APPELLANT - DEFENDANT: -------------------------------------------------------- VETTUVEETTIL AYISHA, RAYAROTH HOUSE, MELADI AMSOM, KEEZHUR DESOM, QUILANDI. ADV. SRI.N.L.KRISHNAMOORTHY SMT.K.A.MAYA FOR SMT.SATHYA SHREEPRIYA FOR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. NO.467 of 1996 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of September, 2009 J U D G M E N T --------------------- The following substantial questions of law are framed for a decision in this second appeal. 1.(a) Has not the lower appellate court exceeded its appellate jurisdiction in reversing the well considered judgment of the trial court? (b). Whether, Section 96 read with Order 41 of the Code of Civil Procedure empowered or authorised the first appellate court to take a different view on a re-appreciation of evidence, when the reasoning recorded by the trial court is possible and reasonable on the self same evidence? 2. Is the lower appellate court in error in non-suiting the plaintiff to recover the A schedule property on the strength of title, without rendering any favourable finding as to the title of the defendant who also claimed the disputed property on the alleged strength of title. 2. The Second Appeal is brought from the judgment and S.A. No.467 of 1996 -: 2 :- decree of learned Sub Judge, Kozhikode in A.S.No.1 of 1993 reversing the decree granted in favour of deceased appellant No.1 by the learned munsiff, Payyoli in O.S. No.84 of 1988. Plaint B schedule is 20 cents which deceased appellant No.1 claimed to have acquired as per Ext.A2, assignment deed dated 15.12.1987 executed by one Kadeessa Umma. According to him on the south of plaint B schedule is the property belonging to the respondent. There is no boundary in between the properties and making use of that, respondent trespassed into a portion of plaint B schedule property and converted it into her possession. Trespassed area is the plaint A schedule. Deceased appellant No.1 on the strength of his title prayed for recovery of possession of plaint A schedule. Respondent contended that deceased appellant No.1 or his predecessor had no right or possession of the entire property referred to in plaint B schedule and the document of title relied on by him. She claimed that the disputed property is part of property belonging to her as per Ext.B2, partition deed dated 14.3.1985. Learned munsiff came to the conclusion that plaint A schedule is part of plaint B schedule and granted recovery of possession. First appellate court reversed that judgment and decree and dismissed the suit. 3. It is contended by learned counsel for additional appellants that the first appellate court has gone beyond its jurisdiction in S.A. No.467 of 1996 -: 3 :- reversing the well reasoned judgment passed by learned munsiff. It is also the contention of learned counsel that first appellate court was not entitled to substitute its view when the view taken by the learned munsiff was legal and proper. Learned counsel for respondent contended that this being a suit for recovery of possession on the strength of title, deceased appellant No.1 was bound to prove his title over the entire property claimed by him. That was not taken into consideration by the learned munsiff. First appellate court considered the relevant aspects and found in favour of respondent which required no interference. 4. An appeal being a continuation of the suit it is within the power of the first appellate court to re-appreciate the evidence and to come to appropriate conclusion but on proper reasoning. If it reverses judgment of the trial court necessarily it has to state reasons for arriving at a different conclusion. When the decision of the case depends on oral evidence alone and trial court has taken one view of the matter, first appellate court will be justified in reversing that decision only if there is something in the oral evidence of witnesses which did not get the attention of the trial court and which if considered would tilt the decision in favour of the appellant. In this case deceased appellant No.1 has not gone into the box and given evidence. Instead Advocate Commissioner was examined as S.A. No.467 of 1996 -: 4 :- P.W.1. Respondent also did not adduce any oral evidence. Deceased appellant No.1 relied on Exts.A1 to A3 and C1 to C5 while respondent relied on Exts.B1 and B2. Question is whether first appellate court was justified in reversing the judgment and decree of the trial court and dismissing the suit. 5. It is not disputed that property over which parties claim title and possession including the disputed property originally belonged to Kumhammed. He gifted the said property in favour of Kadessa Umma, assignor of deceased appellant No.1 and Ayisha as per Ext.B1, gift deed. There was a partition between Kadeesa Umma and Ayisha as per Ext.A1. It is out of the portion allotted to Kadeesa Umma as per Ext.A1 that she conveyed title and possession of property in favour of deceased appellant No.1 as per Ext.A2. Kadeesa Umma had gifted certain properties to two of her daughters including respondent as per Ext.A3. They partitioned properties as per Ext.B2 and the property on the south of B schedule thus came to the ownership and possession of respondent. 6. Exhibit C1 is the first report of the Advocate Commissioner dated 7.11.1988. Advocate Commissioner inspected the property on 7.10.1988 and stated that in between plaint A schedule and property admittedly belonging to deceased appellant No.1, there is a mud wall having 3 to 6 feet height which is pretty old. Advocate Commissioner S.A. No.467 of 1996 -: 5 :- again visited the properties on 10.6.1989. Exhibits C4 and C5 are the plan and report. In Ext.C5 also the same description regarding the mud wall is given. Further inspection was on 10.1.1992 and the plan and report are Exts.C2 and C3. Advocate Commissioner reported in Ext.C3 also about the existence of the old mud wall of 3 to 6 feet height in between the disputed property (A schedule) and rest of the property admittedly belonging to the appellants. 7. A plan is appended to Ext.A2. Measurement given in that plan tallied with the measurement given by the Advocate Commissioner in Ext.C2. Exhibit C2 is not objected by either of the parties. Learned munsiff mainly found in favour of original appellant No.1 based on Ext.C2 and the plan appended to Ext.A2. Learned munsiff found that these plans tallied with each other in the matter of measurement and concluded that the disputed portion of the property formed part of the property referred to in Ext.A2 and the plan appended thereto. First appellate court however found that the said reasoning of learned munsiff cannot be accepted. According to the first appellate court non-examination of deceased appellant No.1 as a witness to answer the contentions raised by respondent and existence of the mud wall in between the disputed property and property admittedly belonging to deceased appellant No.1 destroyed the case of deceased appellant No.1. S.A. No.467 of 1996 -: 6 :- 8. It is argued by learned counsel for additional appellants that so far, Ext.C2 is not disputed and measurements given Ext.C4 also tallied with Ext.C2, first appellate court was not correct in reversing the decree of the trial court particularly as Ext.C2 tallied with the measurements contained in the plan appended to Ext.A2. Learned counsel for respondent contended that deceased appellant No.1 has not met the contentions raised by the respondent in paragraph 4 of the written statement that deceased appellant No.1 or his predecessor as per Ext.A2 did not get title, possession or interest over the entire property referred in Ext.A2. 9. Mere fact that the plan appended to Ext.A2 tallied with the measurements given in Ext.C2 is not sufficient by itself to hold that deceased appellant No.1 had title and possession over the disputed property as per Ext.A2. According to learned counsel for respondent measurements given in Ext.A2 and plan are inflated. Learned counsel pointed out from Ext.C3, report of Advocate Commissioner (paragraph 4) that respondent had shown prior document of deceased appellant No.1 (Ext.A1) and contended that more than what the assignor of deceased appellant No.1 got has been conveyed to deceased appellant No.1 as per Ext.A2. I see from paragraph 4 of the written statement filed by respondent that she has raised a contention that deceased appellant No.1 did not get title and possession of the entire S.A. No.467 of 1996 -: 7 :- extent referred to in Ext.A2. In such a situation deceased appellant No.1 could not have merely relied on the measurements in Ext.A2 or the plan appended thereto. In that situation mere fact that Ext.C2 or even Ext.C4 tallied with the plan appended to Ext.A2 is not sufficient. It was the responsibility of deceased appellant No.1 to get the property measured as per Ext.A1, his prior document to show that as per Ext.A1 he got right, title, possession and interest over the entire property referred to in Ext.A2. That has not been done. Therefore based on Ext.A2 and C2 alone it is not possible to say that deceased appellant No.1 got right, title and possession over the disputed property as per Ext.A2. 10. There are also indications that deceased appellant No.1 could not have got possession of the disputed property as per Ext.A2. In the plaint there is no mention of any mud wall in between the disputed property and the rest of the property admittedly belonging to deceased appellant No.1. On the other hand Advocate Commissioner consistently reported in Exts.C1, C3 and C5 about the mud wall having a height of 3 to 6 feet and pretty old. As I stated above the first inspection was on 7.10.1988, i.e., immediately after the institution of the suit when also the Advocate Commissioner reported about the said mud wall as very old. Therefore it is unlikely and there is no such case also that respondent had put up that mud wall after S.A. No.467 of 1996 -: 8 :- deceased appellant No.1 acquired property as per Ext.A2 on 15.12.1987. Commissioner has also reported that the mud wall continues towards further west beyond the property of respondent as well as deceased appellant No.1. Therefore there is reason to think that even before Exts.A1 and A2, that mud wall was in existence (Ext.A1 is of the year 1987). If that be so, it is quite unlikely that as per Exts.A1 and A2 deceased appellant No.1 or his predecessor got possession of the disputed property beyond the said mud wall. These circumstances the first appellate court took into account to reverse the judgment and decree of the trial court. 11. It is the settled position of law that a suit on title should win or fail on the strength or weakness of the title claimed by the plaintiff. He cannot succeed on the weakness of the case of defendant. In this case, no attempt was made to measure the properties with reference to the prior documents of title on which both party rely, to show that assignor of deceased appellant No.1 was competent to convey title and possession of entire B schedule property. Therefore the first appellate court rightly found that deceased appellant No.1 cannot recover possession of plaint A schedule on the strength of title. 12. At this stage learned counsel for additional appellants made a request to remand the case for proper measurement of the S.A. No.467 of 1996 -: 9 :- properties. Suit is of the year 1988. In the written statement a specific contention has been raised by respondent that deceased appellant No.1 had not obtained right, title and possession of the entire property referred to in Ext.A2. Advocate Commissioner has inspected the properties at least thrice. At no point of time request was made to measure the properties as per prior documents of title. In the circumstances after 21 years of litigation I do not consider it appropriate or necessary to send the case back to the trial court for another round of litigation. 13. In the light of what I have stated above I am not persuaded to think that the first appellate court has traversed its power in reversing the judgment and decree of the trial court. Substantial questions of law are answered accordingly. Second Appeal is without any merit and is liable to be dismissed. Second Appeal is dismissed without any order as to costs. THOMAS P.JOSEPH, JUDGE. vsv S.A. No.467 of 1996 -: 10 :- THOMAS P.JOSEPH, J. =================== S.A. NO.467 OF 1996 =================== J U D G M E N T 23RD SEPTEMBER, 2009