IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 RSA.No. 987 of 2007() --------------------- AS.52/2002 of ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA OS.333/1996 of MUSNIFF COURT,ADOOR .................... : APPELLANT/IST RESPONDENT/PLAINTIFF ---------------------------------------------------------- R.MADHAVAN PILLAI THAMARAPPALLIL HOUSE ELAMPALLIL MURI, PALLICKAL VILLAGE. BY ADV. SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER RESPONDENTS: APPELLANT & RESPONDENTS 2 TO 5/DEFENDANTS -------------------------------------------------------------------------- 1. KUNJAN PILLAI RAVEENDRANATHA KURUP BHARATHIVILASOM HOUSE, PAZHAKULAM PADINJARUM MURI, PALLICKAL VILLAGE, ADOOR TALUK. 2. KUNJAN PILLAI BALAKRISHNA KURUP, BHARATHIVILASOM HOUSE, PAZHAKULAM PADINJARUM MURI, PALLICKAL VILLAGE, ADOOR TALUK. 3. KUNJAN PILLAI GOPALA KURUP BHARATHIVILASOM HOUSE, PAZHAKULAM PADINJARUM MURI, PALLICKAL VILLAGE, ADOOR TALUK. 4. KUNJAN PILLAI RADHAKRISHANA KURUP BHARATHIVILASOM HOUSE, PAZHAKULAM PADINJARUM MURI, PALLICKAL VILLAGE, ADOOR TALUK. 5. SAMUEL, CHIRAYIL THEKKETHIL ALSO KNOWN AS PLAVILA THEKKETHIL BHARATHIVILASOM HOUSE, PAZHAKULAM PADINJARUM MURI, PALLICKAL VILLAGE, ADOOR TALUK. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 987 OF 2007 =========================== Dated this the 15th day of February, 2008 JUDGMENT Plaintiff in O.S.333/1996 on the file of Munsiff Court, Adoor is the appellant. Defendants are the respondents. Appellant instituted the suit for recovery of possession on the strength of title. Appellant was set up a title under Ext.A1 sale deed. What was contended by appellant was that under Ext.A1 he obtained 72 cents and out of it 11 ½ cents was acquired for K.I.P canal and the remaining 16 ½ cents has been in his possession and the northern side of that property belong to respondents 1 to 4 and on the eastern side is the property belonging to fifth respondent and on the southern side and the remaining northern side there are the property of respondents 1 to 3 and there is a channel separating the northern property of appellant and the property of respondents 1 to 4 and it is having an average width of 4 feet and on R.S.A.987/2007 2 12.7.1996 respondents trespassed into (the plaint schedule property) a portion of property having an extent of 9 cents and respondents have no right or title to the property and appellant is entitled to recover of possession of the same on the strength of title. Respondents instituted the suit contending that the description of the plaint schedule property is not correct and appellant has no title to the entire plaint schedule property and property of respondents 1 to 4 lies towards the north and that property is lying 4 to 5 feet belong the property of appellant and they have planted rubber in their property including the disputed portion of the property and appellant has no title to the property and is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws. 1 and 2, Dws. 1 and 2, Exts.A1 and A2, C1 to C4 granted a decree for recovery of possession finding that under Ext.A1 appellant has title to the plaint schedule property. Fourth defendant filed R.S.A.987/2007 3 A.S.52/2002 challenging the judgment. Learned Additional District Judge on reappreciation of evidence found that what is claimed by appellant was that he has title to the plaint schedule property under Ext.A1 and Ext.A1 shows that the extent of the property is only 68 cents. Finding that even according to appellant 11 ½ cents was acquired for K.I.P canal and the balance extent available could only be 56 ½ cents, it was found that plaint schedule property is not identified as the property covered under Ext.A1 and appellant is not entitled to the decree for recovery of possession based on title. The judgment of the trial court is set aside and the suit was dismissed. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of the learned counsel is that in respect of a portion of the plaint schedule property, appellant had entered into an oral agreement to purchase 4 cents of the property and R.S.A.987/2007 4 though the title deed in respect of that property was handed over to the appellant, no registered sale deed was executed in his favour and based on that agreement he was put in possession of that 4 cents of the property. But such a claim was not raised in the plaint. Apart from the title under Ext.A1, appellant has no case that he was in possession of any other property. No possessory title was set up. It was argued that the title deed in respect of 4 cents which is produced before this court supports the claim for possessory title and therefore an opportunity is to be granted to the appellant to amend the plaint and to agitate that case. It was also argued that first appellate court interfered with the decree passed by the trial court on the basis that plaint schedule property was not identified and in such circumstance an opportunity is to be granted to the appellant to properly identify the plaint schedule property including the property covered under the possessory title and therefore the decree and R.S.A.987/2007 5 judgmet are to be set aside. 5. On hearing the learned counsel, I do not find that any substantial question of law involved in the appeal. 6. The suit was based on title. The title set up is under Ext.A1. There was no case for the appellant in the plaint that apart from the title derived under Ext.A1, he has possessory title in respect of any portion of the plaint schedule property. He has no such case even at the time of evidence. Therefore at the second appellate stage appellant cannot be allowed to produce a document based on a new plea of possessory title which was not agitated even before the first appellate court. I.A.425 of 2008 is dismissed. Appellant is entitled to get back the document produced in I.A.425/2008. Therefore based on that claim judgment of the first appellate court cannot be interfered. 7. When appellant contended that he has title to 72 cents of under Ext.A1, first appellate court R.S.A.987/2007 6 rightly found that under Ext.A1 the title transferred in his favour was only for 68 cents of property. Even according to appellant, out of the said property 11 ½ cents was acquired for K.I.P canal. He could claim title only for the balance of the property. Though a commission was appointed and the Commissioner submitted a plan and report, property was not identified with reference to Ext.A1. Without producing the necessary records with regard to the acquisition what exactly is the extent of that property and identity which was acquired for K.I.P canal project cannot be decided. Without deciding that aspect there cannot be a proper identification of the remaining property covered under Ext.A1. From the evidence on record, the finding of first appellate court that the disputed property in the possession of respondents is not proved to be part of the property covered under Ext.A1 is correct. First appellate court rightly found that appellant is not entitled to the decree for recovery of possession of the property R.S.A.987/2007 7 from the possession of respondents. Appeal is dismissed. But it is made clear that claim based on possessory title, which according to appellant was obtained from Govinda Pillai was not agitated or decided. Hence dismissal of the suit will not prohibit the appellant from raising a claim in respect of that property in appropriate proceedings. So also as the suit was dismissed on the ground that the property was not properly identified, dismissal of the suit will not disentitle the appellant from instituting a suit after proper identification. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006