IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 SA.No. 652 of 1998(C) ----------------- AS.51/1991 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.317/1988 of MUNSIFF COURT, ALUVA .................. NOT PARTY / 6TH APPELLANT / APPELLANT : -------------------------------------------------------------------- RANJI VARGHESE, S/O. VARGHESE, NEDUMPARAMBIL HOUSE, THOTTUMMUGHAM. THE APPELLANT WAS IMPLEADED AS THE LEGAL HEIR OF DECEASED SOLE DEFENDANT IN O.S. NO. 317/1988 AS PER ORDER IN I.A. NO. 776/91 DATED 14.1.1992 DURING THE PENDENCY OF THE APPEAL. BY ADV. SRI.MATHEW JOHN PLAINTIFF 1ST RESPONDENT / NOT PARTIES / ADDL. APPELLANTS 3 TO 5 AND 7 ----------------------------------------------------------------------------------------------------------- AND ADDL. RESPONDENTS 2 TO 4 ------------------------------------------------- 1. NANU, S/O. AYYAPPAN, PERUMPILLY HOUSE, ASSAN COLONY, CHAMBAKASSERY JUNCTION, ALUVA (*DIED). 2. MATHAI VARGHESE, S/O. VARGHESE, NEDUMPARAMBIL VEEDU, PATHANAPURAM, KOLLAM (DEAD). 3. DAVID VARGHESE, S/O. DO. DO. 4. ANNAMMA IYPE, D/O. DO. VANMANUPEEDIKAYIL P.O., PUTHENKARA, VIA. CHENGANNOOR, ALAPPUZHA. 5. GEORGE VARGHESE, S/O. DO. NEDUMPARAMBIL HOUSE, PATHANAPURAM, KOLLAM. 6. SOSAMMA JOHN, W/O. REV. K.V. JOHN, P.O. BOX NO. 2591, DUBAI. ...2/- SA.No. 652 of 1998(C) -2- 7. REJI PHILIP, D/O. VARGHESE, C/O. PADMA MATHEW, BADGE NO. 293, ROOM NO. 23, BRENDAVAN SOCIETY, MANJEWADA CASTLE MILL, THANA, W.40061, BOMBAY, MAHARASHTA. 8. ANIL VARGHESE, S/O. VARGHESE, K.F.U.P.M. AL-ARFAJSUADI AIRCON, DAHARAN – 31261, KSA. *ADDITIONAL R9 TO R13 IMPLEADED *9. LAKSHMIKUTTY, W/O. LATE NANU, PERUMPILLY HOUSE, ASSAN COLONY, CHAMBAKASSERY JUNCTION, ALUVA. *10. RAJAGOPAL, S/O. LATE NANU, PERUMPILLY HOUSE, ASSAN COLONY, CHAMBAKASSERY JUNCTION, ALUVA. *11. MURALI, S/O. LATE NANU, PERUMPILLY HOUSE, ASSAN COLONY, CHAMBAKASSERY JUNCTION, ALUVA. *12. ASHOKAN, S/O. LATE NANU, PERUMPILLY HOUSE, ASSAN COLONY, CHAMBAKASSERY JUNCTION, ALUVA. *13. JAYASREE, D/O. LATE NANU, PERUMPILLY HOUSE, ASSAN COLONY, CHAMBAKASSERY JUNCTION, ALUVA. *ADDL. RESPONDENTS 9 TO 13 ARE IMPLEADED AS THE LR'S OF THE DECEASED R1 AS PER ORDER DATED 6/10/10 IN I.A. NO. 2365/10. R1 BY ADVS. SRI. B.JAYASANKAR SRI. K. SREESAKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2011, ALONG WITH SA NO. 679 OF 1998 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...3/- SA.No. 652 of 1998(C) -3- ORDER ON C.M.P. NO. 1805/1998 IN SA. NO. 652/1998 DISMISSED 17/01/2011 SD/- P. BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE Mn P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos. 652 & 679 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of January, 2011. JUDGMENT Two suits, namely O.S. 317 of 1988 and O.S. 232 of 1988, were disposed of by a common judgment by the Munsiff's Court, Aluva. The appellant is the plaintiff in O.S. 232 of 1988 and he is the defendant in O.S. 317 of 1988. It is seen that O.S. 232 of 1988 was dismissed and O.S. 317 of 1988 was decreed. The appellant then filed A.S.22 of 1992 against the judgment and decree in O.S. 232 of 1988 and A.S. 51 of 1991 against the judgment and decree in O.S. 317 of 1988. Both the appeals were dismissed by the lower appellate court by a common judgment. 2. O.S. 317 of 1988 was treated as the leading case and the parties and facts are herein after referred to as they are available in the said suit. 3. The plaintiff in the suit laid claim to 25 cents of property on the basis of Ext.A4 purchase certificate. The S.A.652 & 679/98. 2 defendant laid claim to 2.25 acres as per Exts.B1 and B2 and also contended that even though the document took in 2.25 acres, he is entitled to more extent of land. The allegation of the plaintiff in the suit was that the original defendant in O.S. 317 of 1988 had trespassed into a portion of the property and reduced it into his possession and therefore he sought recovery. 4. The suit was resisted on the ground that no property covered by Ext.A4 purchase certificate was not in the possession of the defendant and he owned and possessed only the property covered by Exts.B1 and B2. 5. The contentions of the defendant in O.S. 317 of 1988 formed the plaint allegations in O.S. 232 of 1988. The allegations in the plaint in O.S. 317 of 1988 formed the contentions in the written statement in O.S. 232 of 1988. Based on the above pleadings, necessary issues were raised. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendant had examined D.Ws. 1 to 4 and S.A.652 & 679/98. 3 marked Exts. B1 and B2. Exts. C1 to C2(a) are the commission reports and plans. The commissioner was examined as C.W.1. 6. The trial court on an evaluation of the materials before it came to the conclusion that the defendant in O.S. 317 of 1988 had reduced the property owned by the plaintiff in the said suit and granted a decree in favour of the plaintiff. Consequently the suit filed by the appellant was dismissed. As already stated, appeals filed by the appellant met with failure. 7. Notice is seen to have been issued on the following questions of law: “A. Are not the courts below in serious error in relying on Exts.A1 to A4 documents which are vitiated by errors apparent on the face of themselves? B. Are not the courts below in serious error in not placing reliance on the Commissioner's report and the recitals in Ext.B1 document to find that the appellant's predecessor in interest was in S.A.652 & 679/98. 4 possession and enjoyment of the plant schedule properties in O.S. 232 of 1988? C. Are not the courts below in serious error in having found that the first respondent is the owner of the 25 cents of property when there is total lack of evidence to show that the title in respect of those properties have lawfully come to the 1st respondent? D. Is not the approach of the court below vitiated by wrong casting of burden since the suit in O.S. 317 of 1988 was filed by the first respondent for declaration of title?” 8. Learned counsel appearing for the appellant pointed out that Ext.A4 purchase certificate produced by the plaintiff in O.S. 317 of 1988 did not contain boundaries and it was not possible to identify the property as per Ext.A4 purchase certificate. Attention was also drawn to the fact that the Commissioner, who prepared the report and plan along with the aid of the Surveyor had noticed in the report that it is not possible to identify the property covered by Ext.A4. Under such circumstances, according to learned S.A.652 & 679/98. 5 counsel, a decree for recovery of possession could not have been granted. 9. Learned counsel appearing for the respondent on the other hand pointed out that the properties have been identified as can be seen from the commission report and it is clear that the defendant had reduced his property into his possession and the decree is proper. No grounds are made out to interfere with the same. 10. Though the suits are of the year 1988, it has to be noticed that the real issue has not been considered by both the courts below. It is true that Ext.A4 does not contain the boundaries. But there seems to be some indication that the property in the possession of the plaintiff in O.S. 317 of 1988 is comprised in Sy. No. 160/1-5. The property that is claimed by the defendant in the said suit lies in Sy. Nos. 160/1-3 and 160/1-4. The proper method would have been to identify the northern boundary of the property claimed by the defendant in the said suit as per Exts. B1 and B2 and then to see whether that encompasses the property claimed S.A.652 & 679/98. 6 by the plaintiff in the suit. Before this court the appellant had produced additional documents along with I.A. 21 of 2011. He produced two documents, which show that the present survey number of Sy. Nos. 160/1-4 and 160/1-5 is Sy. No.125/2. It is seen that Sy. No. 125/2 takes in 23.80 Ares, which is 50 cents. The appellant has also produced the survey sketch. As this court feels that it is relevant and necessary for the purpose of determining the real issue involved in the suits, the documents are received in evidence. 11. Going by Exts.C2 and C2(a) it is not possible to gather as to what exactly is the southern boundary of Ext.A4 property. The commissioner examined as C.W.1 says that he had seen the Taluk Surveyor referring to the survey sketch. Surprisingly enough, that is not seen referred to in the sketch and inspite of the objection filed by the parties, there was no attempt to have a proper plan and sketch prepared with the help of survey sketch. That resulted in the decree being passed in favour of the plaintiff. S.A.652 & 679/98. 7 12. From the nature of the contentions of the parties, it is clear that the identification of the respective properties is absolutely necessary for a proper adjudication of the suits, and that will have to be done with respect to the documents of title and survey plan produced before this court. It is felt that an opportunity ought to have been given to both parties to establish their respective case. In the result, the judgments and decrees of the courts below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. Additional evidence produced before this court shall be transmitted to the trial court. The trial court shall afford an opportunity to both parties to adduce further evidence, if they so choose and shall dispose of the matter as expeditiously as possible, at any rate within a period of six months from the date of appearance of the parties before the trial court. The parties shall appear before the trial court on 25.2.2011. There will be no order as to costs. S.A.652 & 679/98. 8 A letter has been received from the learned Munsiff saying that in these cases Exts.B1, B2, C1 and C1(a) alone are available and other documents were destroyed. If necessary, the court below is granted permission to reconstruct the records with the aid of counsel on both sides. P. BHAVADASAN, JUDGE sb.