IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 FAO.No. 45 of 2006() -------------------- AGAINST THE ORDER DATED 17/11/2005 A.S.NOS.70/2002 AND 182/02 IN of SUB COURT,NEYYATTINKARA OS.523/1997 of PRL.MUNSIFF COURT.,NEYYATTINKARA .................... APPELLANTS/RESPONDENTS 1 AND 2 IN AS NOS.70 & 182/2002/PLAINTIFFS: ---------------------------- 1. REMANI, D/O. KUNJULEKSHMI, J.R. SADANAM, KOVILVILAKAM, KAZHIVOOR DESOM KANJIJRAMKULAM VILLAGE AND P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 2. LEKSHMANAN, S/O. JANARDANANAN, DO. DO. BY ADV. SRI.S.JAMES VINCENT RESPONDENTS/APPELLANT & RESPONDENTS 3 TO 5 IN AS 70/2002/DEFENDANTS 3 AND 1, 2 & 4 IN THE SUIT: ------------- 1. NARAYANAN, S/O. KAMALAN, KOVILVILAKAM PURAYIDAM, KAZHIVOOR DESOM, KANJIRAMKULAM VILLAGE AND P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPLURAM DIST. (*) 2. KAZHUVOOR SREE BHAGAVATHY TEMPLE, REP. BY THE SECRETARY, VASUDEVAN ANIL, ALIAS PODIYAN -DO- (**) 3. NARAYANAN, S/O. SUKUMARAN NAIR, CHOONDAVILAKAM VEEDU, PRESIDENT OF -DO- -DO- (**)4.ANIL ALIAS PODIYAN, S/O.VASUDEVAN KOVILVILAKATH VEEDU, SECRETARY OF DO. DO. (**)RESPONDENTS 3 AND 4 DELETED FROM ARRAY OF PARTIES AND THE FOLLOWING NAMES SUBSTITUTED IN THEIR PLACES AS PER THE ORDER IN IA NO.4390/2007 DATED 23.11.2007: 3. SUDHEER CHANDRA KUMAR, S/O.SRI SUKUMARAN, NALAMPURAM VEEDU, KAZHIVOOR, KANJIRAMKULAM VILLAGE, KAZHIVOOR P.O., FAO NO.45/2006 2 VIA PULLUVILA, NEYYATTINKARA, KAZHUVOOR SREE BHAGAVATHY TEMPLE, -DO- 4. S.SUNOD, S/O.SRI SURAN, KAZHIVOOR KOVILVILAKAM MELETHATTUVEETTIL, KANJIJRAMKULAM VILLAGE, KAZHIVOOR P.O., VIA PULLUVILA, NEYYATTINKARA, SECRETARY, KAZHUVOOR SREE BHAGAVATHY TEMPLE, -DO- (*)THE NAME 'VASUDEVAN ANIL, ALIAS PODIYAN' IN THE DESCRIPTION OF SECOND RESPONDENT IN THE MEMORANDUM OF APPEAL IS DELETED AND THE NAME OF SUDHEER CHANDRA KUMAR IS SUBSTITUTED IN HIS PLACE AS PER ORDER IN IA NO.4390/2007 DATED 23.11.2007. R2 & R3 BY ADV. SRI.B.KRISHNA MANI SRI.RAHUL VENUGOPAL R1 BY ADV. SRI.L.MOHANAN SRI.KIRAN MOHAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23.1.2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- F.A.O.No.45 of 2006 ------------------------------------------------- Dated, this the 23rd day of January, 2008 JUDGMENT The plaintiffs in O.S.No.523/1997 on the file of the Munsiff's Court, Neyyattinkara are the appellants. This appeal is filed against an order of remand passed by the lower appellate court by which it set aside the decree and judgment passed by the trial court and remanded the suit for fresh disposal. 2. Short facts necessary for the disposal of the appeal are as follows: The appellants who are the respondents 1 and 2 in A.S.Nos.70/2002 and 182/2002 filed the suit for declaration of title, possession and putting up a boundary of plaint schedule property. In the plaint it was averred that suit properties originally belonged to father of first plaintiff. It was averred that father of first plaintiff died and the estate of the deceased succeeded by his widow and seven children. Each of them inherited one eighth share. It was averred that suit property was having an extent of 58.750 cents of property. A temple is situated in four cents and 2.750 cents were also set apart. First plaintiff got title over one eighth share. Five sharers gifted their right over the suit property in favour of the first plaintiff. The second plaintiff purchased the remaining one share. There was a partition among the first plaintiff and other sharers. It was also averred that four cents of land wherein the temple is situated was gifted by the plaintiffs. The defendants have no right or possession over any other portion of the suit properties. It was FAO No.45/2006 2 further averred that there is no clear cut boundary separating the four cents given to the temple and the remaining property. Third defendant is residing on the southern side of the suit property and there is no specific boundary demarcating the plaintiffs' property from that of the third defendant. Hence the suit for declaration of title and possession over 52 cents of property and for a decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule properties. There is also a prayer for putting up boundary of 52 cents separating the temple property and also the property claimed by the third defendant at the cost of the plaintiffs. Defendants 1 and 2 filed a joint written statement contending that the suit was not maintainable and the same was barred by limitation. It was also contended that the suit was bad for mis-joinder and non- joinder of parties. It was specifically contended that the predecessor-in-interest of the plaintiffs had no right or possession over any portion of the suit property. It was reiterated that neither the plaintiffs nor their assignors had any title or possession over 52 cents of property. It was contended that the partition deed claimed by the plaintiffs have no validity and the sale deeds were also invalid. Third defendant filed a separate written statement contending that the suit was not maintainable. It was contended that the description of the plaint schedule property was not correct. The extent of the property stated in the plaint was disputed. There was no plot having an area of 52 cents as claimed by the plaintiffs. It was contended that the third defendant was an unnecessary party. It was contended FAO No.45/2006 3 that what exactly was the role of defendants 1 and 2 in handling the property of the temple was not stated and they have no right to represent the temple. It was further contended that Kumaran Kesavan, the father of the first plaintiff, obtained only 45 cents of land. The averment that the land obtained by father of plaintiffs was having an area of 58.750 cents was denied. It was specifically contended that neither Kumaran Kesavan nor the children had any right or possession over the suit property. It was further contended that the extent stated in the plaint was not correct and the first plaintiff did not get title or possession over the suit property as stated in paragraph 8 of the plaint. It was contended that the extent of the property surrendered for the temple was not correctly stated. The third defendant claimed kudikidappu over the property comprised in Sy.No.89/27A. He filed an Original Petition before the Land Tribunal for assignment of right title and interest of the landowner and the Tribunal issued a certificate of purchase for ten cents of land. He claimed absolute title and possession over ten cents of property and that plot is to be excluded from the suit property. It was also contended that there was no need to put up boundary separating the property of the third defendant from the rest of the property. Subsequently fourth defendant was impleaded. He also filed written statement contending that Kumaran Kesavan did not get any right or possession over any portion of suit property. Neither the plaintiffs nor other persons referred to in the plaint had any right or title over the suit properties. Execution of settlement deed was denied. It was contended that FAO No.45/2006 4 partition deed and sale deeds were invalid and plaintiffs did not get any title or possession over the suit properties. It was further contended that Munsiff court had no pecuniary jurisdiction to entertain the suit. It was contended that there was an ancient temple situated in the suit property. On the south of the temple a building termed as 'madappally' and office of the temple are situated. The deity in the temple is 'Sreebhagavathi'. It was also contended that about 20 feet south-west of the temple there is another 'Ganapathi temple' and on south of that temple there is 'Nagaprathishta' and on the south of Nagaprathishta there is 'Yakshiyammathara' also. It was further contended that Nagaprathishta, Yakshiyammathara, etc. were situated at 50 feet away from the 'Sreebhagavathi' temple. A permanent stage was constructed prior to 1982 for conducting the annual festival of the temple. It was also contended that on the north of temple there was a well which was exclusively used for taking water for temple purposes. It was further contended that on the south of these structures there was a canal having two feet width and four feet depth. Over the property situated on the north of that canal the plaintiffs never got title or possession and that property exclusively belonged to the temple. It was also contended that ten feet east of Madappally there was another canal having five feet width and four feet depth. On the west of the permanent stage there is yet another canal having five feet width and four feet depth. It was further contended that the stage was constructed in the year 1982 and the Madappally, office of the temple, Nagaprathishta, etc. came into existence prior to 1982. It FAO No.45/2006 5 was contended that the description of the suit property was wrong. According to the fourth defendant the temple was in exclusive possession over the property bounded by the canals. 3. At the instance of the plaintiffs a Commissioner was appointed who filed Exts.C1 report and C2 plan. On the side of plaintiffs PWs 1 and 2 were examined and on the side of defendants DWs 1 to 3 were examined. Second plaintiff gave evidence as PW1 and an independent witness was examined as PW2. On the side of defendants, second defendant was examined as DW1. DW2 is the third defendant. Commissioner was examined as DW3. Trial court found that the defendants did not prove their title or possession over the suit properties and they were having no consistent case. Trial court also found that the certificate of purchase relied on by the third defendant is not binding on the plaintiffs. Trial also took note of the fact that the third defendant is having possession over 5 ½ cents of property per lie. The trial court then proceeded to hold that the evidence adduced by defendants is not capable of denying any of the reliefs prayed for by plaintiffs. So it declared the title and possession of plaintiffs over suit properties and allowed plaintiffs through PF, FE, EV, VQ and QP lines in Ext.C1(a) plan to differentiate the property of the temple and through ML, LO and ON lines to differentiate the property of the third defendant. A decree of permanent prohibitory injunction was also passed restraining the defendants from trespassing into the suit property. Challenging that decree and judgment third defendant filed FAO No.45/2006 6 A.S.No.70/2002 and defendants 1 and 2 filed A.S.No.182/2002 before the Sub Court, Neyyattinkara. Lower appellate court consolidated both the appeals and disposed of by a common judgment. The lower appellate court set aside the decree and judgment passed by the trial court and remanded the case for fresh disposal in accordance with law. Challenging that remand order the plaintiffs have filed this F.A.O. 4. Plaintiffs claimed title and possession over52 cents property under Ext.A1 partition deed. Under Ext.A1 partition deed 45 cents of property described as 'Kovilvilakam purayidom' (temple property) was allotted to the share of Kumaran Kesavan. The same was included in B schedule in Ext.A1. The specific case put forward by the plaintiffs was that though in Ext.A1 the area of property was stated as 45 cents only, actually it was having an area of 58.750 cents. Plaintiffs claimed title and possession over 58.750 cents under Ext.A2 settlement deed, Ext.A3 partition deed and also under Ext.A4 sale deed. Their further case was that thereafter they are in possession and enjoyment of the property and paying tax. Learned counsel for the appellants/plaintiffs submitted that though in Ext.A1 the area of property is stated 45 cents, actually the property is having an extent of 58.750 cents of land. This averment was specificillay denied by the defendants. In the plaint there was no averment that there was a mistake in the description of the property allotted to Kumaran Kesavan under Ext.A1. In the plaint, the plaintiffs claimed title and possession over 52 cents of land. The FAO No.45/2006 7 suit property is part of a larger extent of property known as 'Kovilvilakam purayidom'. The description of the property itself indicates that there was a temple and the land situated around that temple was dealt with in Ext.A1 partition deed. The lower appellate court noted the fact that in Ext.A1 the extent of the property was stated as 45 cents. Learned counsel for the appellants/plaintiffs submitted that in Ext.A1 the extent stated was not correct and in Exts.A2 and A4 the area is correctly stated as 58.750 cents. 5. The plaintiff filed the suit for declaration of title and possession and for putting up boundary. Being a suit for declaration of title and possession, the burden is on the plaintiff to prove the title and possession. The trial court only considered the case of the defendants. It did not consider whether the plaintiffs had proved the title and possession over the suit property. Admittedly the suit property along with other properties were allotted to the share of Kumaran Kesavan. He was succeeded by widow and seven children. Each of them having 1/8th share. The plaintiffs claimed title under Exts.A2 to A4. The trial court did not consider whether the plaintiffs obtained the right of all other sharers. The trial court did not consider the relevancy of the documents and also the report and plan submitted by the commissioner. No attempt was made by the plaintiffs to get the property included in B schedule to Ext.A1 partition deed identified with the help of Surveyor. The lower appellate court held that there is no evidence available on record how the area described as 45 cents in Ext.A1 became 58.750 FAO No.45/2006 8 cents in Ext.A2. Lower appellate court felt that appellants/plaintiffs did not produce the survey records to show that there was excess area in that particular survey number. The lower appellate court further held that being a suit for declaration on the strength of the proprietary title burden is on the plaintiffs to prove their title and possession. There was no prayer for recovery. It is not possible to accept the contention of the appellants that the trial court considered the issues properly. I do not find any reason to interfere with the order of remand passed by the lower appellate court. 6. The lower appellate court found that if the certificate of purchase was issued duly, the fact that the plaintiffs were not parties to the proceedings alone does not invalidate the same. This, according to the learned counsel for the appellants is a wrong proposition of law. It is pointed out that if the certificate of purchase is duly issued, the presumption is that all interested persons were heard. It is argued that it is settled position of law that certificate of purchase will not bind on a person who is not a party to the proceedings. The learned counsel for the respondents has argued that since there is no prayer for recovery it is not necessary to consider whether the defendants have title over the suit property. According to the respondents unless the appellants prove their title and possession over 52 cents they are not entitled to get any relief in respect of that property. I do not think it is necessary to consider any of these arguments on its merits. I leave all issues open to be considered by the trial court. FAO No.45/2006 9 In the result, F.A.O. is disposed of confirming the order of remand. The trial court is directed to dispose of the suit in accordance with law. It is open to the plaintiffs and defendants to seek amendment of the pleadings or adduce further evidence, if so advised. I also make it clear that the trial court shall consider and dispose of the suit untrammeled by any of the observations made by the lower appellate court as well as this Court in this judgment. Parties shall appear before the trial court on 25.2.2008. Trial court shall make every endeavour to dispose of the suit as expeditiously as possible. I.A.Nos.628/2006, 4646/2007 and 4627/2007in F.A.O.No.45/2006 will stand dismissed. K. PADMANABHAN NAIR, JUDGE. cks