IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 FAO.No. 22 of 2007() -------------------- AS.105/2004 of III ADDL. DISTRICT COURT, KOLLAM OS.42/2000 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANT/PALINTIFF: -------------------------- K.RAGHAVAN (AGE 72), ANANDAVILASOM VEEDU, THEKKEMURI, KIZHAKKE KALLADA P.O., KOLLAM. BY ADV. MR. M.V.THAMBAN RESPONDENT(S): RESPONDENT/DEFENDANT. ------------------------------------ THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.BENNY VARGHESE THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.22/07 ORDER ON I.A.686 OF 2009 IN FAO. 22 OF 2007 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 13.3.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- F.A.O.No.22 OF 2007 -------------------------------------------------- Dated this the 13th day of March, 2009 J U D G M E N T Appellant is the plaintiff in O.S.42 of 2000 on the file of Munsiff Court, Kollam. Respondent is the defendant, State. Suit was instituted claiming a decree for declaration of title of the appellant to plaint A and B schedule properties and for a mandatory injunction directing respondent to effect necessary modification in the revenue records showing title of the appellant to plaint A and B schedule properties. Case of the appellant is that he has title to plaint A schedule properties under Ext.A1 partition deed and B schedule property under Ext.A3 sale deed and both the properties are lying together and having a total extent of 2 acre 39 cents and by mistake the re- survey authorities wrongly shown a portion of the property as river puramboke and not the property of the appellant. It is on that basis the suit was filed. Respondent resisted the suit contending that the total extent available to the appellant is only 74.80 Ares and he is wrongly claiming title to an additional extent contending that there is shortage and he is not entitled to FAO.22/07 2 the decree. It was also contended that recovery proceedings have been finalised long back and the suit is barred by section 14 of the Survey and Boundaries Act. 2. Learned Munsiff on the evidence of PWs 1 to 5 and Exts.A1 to A9, Exts.C1 to C3 and Exts.X1 to X5 dismissed the suit holding that appellant failed to establish his title. Appellant challenged the judgment before District Court, Kollam in A.S.105 of 2004. Learned Additional District Judge on reappreciation of evidence found that under Ext.A1 partition deed appellant has title to the properties in old survey Nos.4145, 4146, 4149A and 4149B of east Kallada village, which are presently comprised in re-survey No.1/1-2 of block No.8 of the same village and Ext.X1 basic tax register also establish that title. It was found that though appellant claimed title of 2 Acres 09 cents, the re-survey plan shows that he is in possession of only 74.80 Ares which correspond to 185.76 cents and the shortage could only be 15 cents out of 2 Acres 09 cents. Learned Sub Judge found that when it is established that appellant has title to 74.80 Ares covered under Ext.A1 partition deed, Munsiff should have granted a decree to that extent. Learned District Judge further FAO.22/07 3 found that appellant has claimed title to plaint B schedule property based on Ext.A3 sale deed and under Ext.A3 sale deed the right obtained under Ext.A7 patta was purchased by the appellant and when the commissioner report, Exts.C1 to C3, were found to be not correct, an opportunity is to be granted to prove the availability of the actual extent. The Additional District Judge therefore found that it is necessary to identify the property covered under Ext.A3 and remanded the suit for that limited purpose stating that appellant is entitled to a declaration of title in respect of 74.80 Ares. The appeal is filed challenging the order of remand. 3. The following substantial questions of law were formulated: “(1) Was the First Appellate Court correct in directing identification of plaint B schedule property alone, after setting aside Ext.C3 plan and directing de novo trial regarding title and possession of plaint B schedule alone ? (2) Whether in the circumstance of the entire case first appellate court should have remanded the FAO.22/07 4 case for de novo trial ? 4. Learned counsel appearing for appellant and learned Government Pleader were heard. 5. As per the plaint, the total extent of plaint A schedule property is 2.09 Acre and B schedule property is 30 cents. Title to 2.09 Acre is claimed under Ext.A1 partition deed. Ext.A1 partition deed shows that plaint A schedule property is items 2 to 4 of schedule 2 of Ext.A1 partition deed allotted to the parents of the appellant, who are executants 1 and 2 therein. Ext.A1 contains a provision on the devolution of the properties allotted to the parents after their life time, if they are available. By such provision, if the properties in survey Nos.4145, 4146, 4149A and 4149B, which are the plaint A schedule property, are available with the parents at the time of their death, it would devolve on the appellant. It is on that basis appellant has claimed title to plaint A schedule property. Plaint B schedule property is claimed under Ext.A3 sale deed. Under Ext.A3 the right obtained by the assignor, under Ext.A7 patta, was assigned to the appellant. Though the trial court found that the said property is not available, learned District Judge finding that it is FAO.22/07 5 necessary to identify the said property, remanded the suit granting an opportunity for identification of the said property. With regard to the claim for title to plaint A schedule property first Appellate Court found that though the total extent claimed under Ext.A1 by the appellant is 2 Acre 09 cents, as per the re- survey which was based on the possession, the total extent was only 74.80 Ares. As that title was not disputed by the State, learned District Judge found that appellant has title to that much extent of property and therefore held that appellant is entitled to a declaration of title to that property. The argument of the learned counsel appearing for appellant is that when the suit is remanded for identification of plaint B schedule property, learned District Judge should have remanded the claim regarding plaint A schedule property also, as appellant has title to a total extent of 2.09 Acres under Ext.A1 sale deed. It is therefore argued that the order of remand has to be modified directing re-consideration of the entire claim on plaint A schedule property. Learned Government Pleader submitted that first appellate court did not properly consider the effect of section 14 of Survey of Boundaries Act and therefore that FAO.22/07 6 question may also be considered by the trial court. 6. The trial court found that appellant did not establish his title to plaint A and B schedule properties. When appellant is claiming title to plaint A and B schedule properties, it is for him to establish the identity and title. Though a commission was appointed and Exts.C1 to C3 reports and plan were marked, both the courts found that the reports and plan cannot be relied on. When the plaint shows that A schedule property is 2.09 Acres and B schedule property is 30 cents, as per Exts.C1 to C3 and the identification made by the commissioner, the extent of A schedule property is 20.50 Ares and B schedule is 70.80 Ares. Learned District Judge took plaint B schedule property, as plaint A schedule property marked by the commissioner and plaint A schedule property as B schedule property marked in Ext.C3. But Ext.A1 partition deed shows that the property allotted to the share of executant Nos.1 and 2 as items 2 to 5 of item No.1 of Ext.A1, is the property which lies to the south of Kallada river and to the west of Venmana Mattal purayidam. Therefore under Ext.A1 deed appellant could claim title to only the property which lies to the south of Kallada river. If that be the case, there FAO.22/07 7 may not be any land to the north of the property, thus allotted under Ext.A1 as its north is Kallada river. Ext.A3 shows that the property transferred thereunder is 30 cents which lies to the north of the property of the appellant and south of Kallada river. Learned District Judge did not specifically found the identity of the property but found that appellant has title to 74.80 Ares. It was based on the finding that re-survey was fixed on the basis of possession. But learned District Judge did not consider the question whether that possession was under Ext.A1 or A3. In such circumstances, when the learned District Judge found that the properties are to be properly identified, the entire question should have been remanded to the Munsiff. The appeal is therefore allowed. The order of remand is modified. Munsiff must decide what is the property available to the appellant under items 2 to 5 of schedule 1 of Ext.A1 and the property under Ext.A7 patta and A3 sale deed. A commission is to be appointed for identification of the property at the expense of the plaintiff and the case is to be settled only after proper identification. If the title claimed by the appellant could only be granted by shifting the boundary of re-survey plan, Munsiff FAO.22/07 8 should necessarily consider the effect of section 14 of Survey and Boundaries Act and only if the suit is maintainable, plaintiff is entitled to the decree. M. SASIDHARAN NAMBIAR, JUDGE okb