IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 SA.No. 74 of 1997(A) ------------------------------ AS.12/1988 of SUB COURT, CHERTHALA OS.371/1984 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANT(S): ----------------------- ABOOBACKER, SON OF PAREED, RESIDING AT KALATHIL HOUSE, KODAMTHURUTH MURI, KUTHIATHODE P.O., THURAVOOR NORTH VILLAGE, AGRICULTURIST, AGED 40 YEARS. (DEFENDANT IN O.S.371/84 & RESPONDENT IN A.S.NO.12/88). BY ADV. SRI.R.HARIKRISHNAN SRI.A.KRISHNAN RESPONDENT(S): --------------------------- SAVITHRI, DAUGHTER OF AMMUKKUTTY AMMA, RESIDING AT PERUMPATTACHERAYIL HOUSE, KODAMTHURUTH MURI, KUTHIATHODE P.O., THURAVOOR NORTH VILLAGE, HINDU RELIGION, HOUSE WIFE, AGED ABOUT 45 YEARS. (PLAINTIFF IN O.S. NO.371/84). BY ADV. SRI.SREELAL N.WARRIER, SRI.B.RAGHUNANDANAN, SMT.A.SREEKALA (VAIKOM), SMT.BEENA JOSEPH, SRI.RAJI.K.G. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON 11/06/2010 DELIVERED THE FOLLOWING: rs. P.BHAVADASAN, J. ------------------------------------- SA No.74 of 1997 ------------------------------------- Dated 11th June 2010 Judgment The defendant in OS No.371/84 before the Munsiff's Court, Cherthala, who suffered a decree at the hands of the first Appellate Court, is the appellant. The parties and exhibits are hereinafter referred to, as they are available before the Trial Court. 2. The suit was one for declaration of title, recovery of possession with mesne profits. According to the plaintiff, the plaint schedule property originally belonged to the family of the plaintiff. As per Ext.A1 partition deed dated 23.01.1966, the plaint schedule property was allotted as Item No.E schedule to the plaintiff. The defendant owns property on the southern side of the plaint schedule property. The allegation is that on 30.04.1984, the defendant trespassed into the plaint schedule property and reduced the same into his SA No.74/1997 2 possession. He put up a fence also. The defendant had no manner of right over the plaint schedule property. Hence the suit. 3. The defendant resisted the suit. He denied the allegations in the plaint. According to him, the plaint schedule property is not included in the partition deed relied on by the plaintiff. The plaintiff has no property as shown in the plaint. The allegation of trespass is false. He claimed that the property belongs to him. The plaintiff had filed several other suits, which would show that the claim now made is false. On the basis of the above contentions, he prayed for dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 to 5 and documents marked as Exts.A1 to A9 from the side of the plaintiff. The defendant had Exts.B1 to B9 marked. No witness was examined from the defence side. Exts.C1, C1(a) and C2 are the Commissioner's report and plan. SA No.74/1997 3 5. The Trial Court, on an evaluation of the evidence on record, came to the conclusion that the plaintiff has miserably failed to establish his title and accordingly dismissed the suit. The plaintiff carried the matter in appeal. The lower Appellate Court reversed the findings of the Trial Court and decreed the suit in favour of the plaintiff. The said Judgment and decree are assailed in this Second Appeal. 6. The following questions of law are seen raised in the Memorandum of Second Appeal : “1. In a suit for declaration of title and recovery of possession on whom is the burden of proof ? 2. Is the court justified in decreeing the suit on the ground that the defendant has not established his title and possession of the plaint property. 3. Is not the court in such a suit bound in law to uphold the validity of the title and possession of the property purchased by the defendant in court auction in execution of a decree and obtain delivery through court?” SA No.74/1997 4 7. The learned counsel for the appellant pointed out that the lower Appellate Court has chosen to decree the suit, mainly based on the weakness of the defence case. According to the learned counsel, the court below seems to have forgotten that as the suit was based on title, the entire burden was on the plaintiff. The Trial Court found that the plaintiff had miserably failed to establish his title. The learned counsel drew attention of this Court to the fact that the Commissioner's report is of no help because it is clearly stated that the properties are not identifiable. Under such circumstances, the learned counsel pointed out that it was not possible for the lower Appellate Court to grant a decree in favour of the plaintiff. 8. Attention of this Court was also drawn to Ext.B1 dated 08.05.1984, which is a copy of the plaint in OS No.364/84 before the same court. That was a suit between the very same parties. There, the claim was entirely different and the extent of property was also different. The learned counsel pointed out that the plaintiff SA No.74/1997 5 had no consistent case and the lower court has erred in law in decreeing the suit in favour of the plaintiff. 9. The learned counsel for the respondent, on the other hand, pointed out that the lower Appellate Court has considered the evidence in great detail and has come to the conclusion that the plaintiff has established his title. The court below was justified in placing reliance on Exts.A1, A3, A7 etc., to come to the conclusion that the plaintiff is the owner of the suit property. According to the learned counsel, the total extent of property in Survey No.234/4B is 63 cents out of which 40 cents belong to the plaintiff and 23 cents belong to the predecessor in interest of the defendant. He would say that from the said person, he had purchased 11.5 cents on the southern end, in the name of his sister and the balance 11.5 cents of land was purchased by the defendant. These properties had been identified by the Commissioner and a proper decree was passed by the lower Appellate Court. Therefore, it is submitted that there are no grounds to interfere with the SA No.74/1997 6 Judgment and decree of the lower Appellate Court. 10. The total extent of property in Survey No.234/4B is said to be 63 cents. The plaintiff lays claim to 40 cents. Then he says that the balance 23 cents were outstanding in the possession of the predecessor in interest of the defendant. He claims that 11. 5 cents was purchased by him in the name of his sister and the balance 11.5 cents of land was sold to the defendant. 11. The defendant, on the other hand, would say that he obtained 23 cents from his predecessor in interest and he has not trespassed into any portion of the plaintiff's property. 12. One may, at once have a look at the Commissioner's report and plan. Going by the Commissioner's report, it is not possible to understand the identity of the properties. One may notice here that the plaintiff had claimed reliefs only in respect of 18 cents. The Commissioner has stated in his report that he has drawn the sketch as shown by the parties. The report is specific SA No.74/1997 7 regarding the fact that there is no fencing as claimed by the plaintiff. Going by the sketch, it would appear that the property owned by the defendant is split up into two parts and they are separated by fencing. Nobody has such a case. Going by the Commissioner's report, a portion of the property belonging to the defendant is in the possession of the daughter of the plaintiff. 13. A reading of the report would clearly show that no reliance can be laid on the report and plan. The plan does not show as to the portion trespassed upon by the defendant as alleged by the plaintiff. 14. The learned counsel for the respondent pointed out that 40 cents of property is comprised in Survey Nos.234 and 234/4B. The defendant has no case that she has any property in that Survey Number. His claim is confined to the property comprised in Survey No.234A(1). 15. Though the argument may look attractive, one fact has to be immediately noticed. There is no proper identification of the property even as stated by the SA No.74/1997 8 Commissioner. One must remember that this is a suit based on title. Ext.B1 document is a plaint laid by the plaintiff herein in OS No.364/84 against the very same defendant. That was in respect of 32 cents of properties. Going by the averments in Ext.B1 the said 32 cents was a portion of 40 cents as claimed by the plaintiff in the suit. Of course in the present suit, the trespass is confined to 18 cents. Paragraph 6 of Ext.B1 reads as follows : “Out of 40 cents of property, in the year 1970, as per a sale deed No.472/1970 of the Sub Registrar, Arookutty, 8 cents of property at the southern side was sold by the plaintiff to her brothers and sisters for a sum of Rs.1,000/-. The plaint schedule property is the remaining32 cents of the property of which the plaintiff is the absolute owner having title and possession.” 16. In the light of Ext.B1, it is not possible to understand the claim made by the plaintiff. In fact, this was put to DW2 and he seeks to say that there is a mistake. SA No.74/1997 9 One cannot accept the said claim. It is seen that the plaintiff is a chronic litigant and has been laying suits, which have no foundation at all. 17. It is true that the Trial Court was not justified in coming to the conclusion that Ext.A7 is an invalid document. The reason given by the Trial Court is that the said document was in favour of a minor. As rightly noticed by the lower Appellate Court, the documents in favour of minors cannot be said to be void documents. But that does not help the plaintiff at all. There is no proper identification of the property as already noticed and it is not possible to understand the area trespassed upon by the defendant, as claimed by the plaintiff. It is necessary to get a proper plan for the proper adjudication of the issue involved in this suit. 18. In the result, this appeal is allowed. The Judgment and decree of the lower Appellate Court is set aside and the suit is remanded to the Trial Court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear SA No.74/1997 10 before the Court below on 12.07.2010. They will be allowed to adduce further evidence, if they so choose. The Court below may make every endeavour to dispose of the suit afresh, as expeditiously as possible, at any rate, within six months from the date of appearance of the parties before Court. There will be no order as to costs. The Registry is directed to return the records forthwith. P.BHAVADASAN, JUDGE sta SA No.74/1997 11