IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 SA.No. 57 of 1999(F) -------------------- AS.286/1994 of I ADDL.DISTRICT COURT, THRISSUR OS.68/1982 of I ADDL. MUNSIFF COURT, THRISSUR .................... APPELLANT / APPELLANT / PLAINTIFF : ---------------------------------------------------------- KOCHUNNY, S/O. PERUVANATH KARUVAN APPU ALIAS KRISHNAN, CHEVOOR VILLAGE, PERUMBILLISSERI DESOM, THRISSUR TALUK. BY ADVS. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN RESPONDENTS / RESPONDENTS / DEFANDANTS : ---------------------------------------------------------------------- 1. MEENAKSHI AMMA, D/O. ANCHERY VEETTIL NANIKUTTY AMMA, CHERUP VILLAGE – DESOM, THRISSUR TALUK (*DIED) 2. THULASI AMMA, D/O. MEENAKSHI AMMA, -DO- -DO- 3. RAVINDRANATHAN, S/O. MEENAKSHI AMMA, -DO- -DO- 4. APARNA, D/O. THULASI AMMA, -DO- -DO- 5. HEMA, D/O. THULASI AMMA, -DO- -DO- 6. GOVINDAN NAIR, S/O. PARAPARAMBIL PARU AMMA, KIZHUPPALLIKKARA VILLAGE, DESOM, THRISSUR TALUK. 7. LEELA, W/O. LATE PERUVANATH PARANGODAN, KUTTAN, PERUMBILLISSERI DESOM, CHEVOOR VILLAGE, THRISSUR TALUK (*DIED) 8. BALAKRISHNAN, S/O. PERUVANANTH KUTTAN, -DO- -DO- ...2/- SA.No. 57 of 1999(F) -2- 9. NARAYANANKUTTY, S/O. PERUVANATH KUTTAN, -DO- -DO- 10. RAMACHANDRAN, S/O. PERUVANATH KUTTAN, -DO- -DO- 11. PREMA, D/O. PERUVANANTH KUTTAN, -DO- -DO- 12. KOMALAM, D/O. PERUVANATH KUTTAN, -DO- -DO- 13. VIJAYAKUMAR, S/O. PERUVANATH KUTTAN, -DO- -DO- 14. KOCHUNNY ALIAS MOHANDAS, S/O. PERUVANATH KUTTAN, -DO- -DO- 15. LATHA, D/O. PERUVANATH KUTTAN, -DO- -DO- 16. GEETHA, D/O. PERUVANATH KUTTAN, -DO- -DO- 17. MANNAN @ ARAVINDAN, S/O. PERUVANATH KUTTAN, -DO- -DO- 18. USHA, D/O. PERUVANATH KUTTAN, -DO- -DO- *RESPONDENTS 2 & 3 ARE RECORDED AS THE LR OF THE DECEASED FIRST RESPONDENT VIDE ORDER DATED 3/2/09 IN MEMO BEARING CF 684/09 *IT IS RECORDED THAT RESPONDENTS 8 TO 18, ALREADY IN THE PARTY ARRAY ARE THE LR'S OF THE DECEASED SEVENTH RESPONDENT AND HENCE NO OTHER PERSON IS TO BE IMPLEADED VIDE ORDER DATED 16/2/11 IN MEMO BEARING CF 902/11 R7 TO R9, R11, R12, R14, R15, R17 & R18 BY ADV. SRI.P.V.CHANDRA MOHAN R5 BY ADVS. SRI.THIYYANNOOR RAMAKRISHNAN SRI.ARUN KUMAR.P THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...3/- SA.No. 57 of 1999(F) -3- ORDER ON C.M.P. NO. 146/1999 IN SA. NO. 57/1999 DISMISSED 11/03/2011 SD/- P. BHAVADASAN, JUDGE //TRUE COPY// P.A. TO JUDGE Mn P.BHAVADASAN, J. ---------------------------- S.A.No. 57 of 1999 --------------------------------- Dated this the 11th day of March, 2011 JUDGMENT The plaintiff in O.S.No. 68/1982 before the First Additional Munsiff's Court, Thrissur is the appellant. The parties and facts are hereinafter referred to as are available before the courts below. 2. The plaintiff on the basis of Ext.A1 document dated 02.02.1978 laid a suit for recovery of possession of plaint B schedule property which is the portion of the plaint A schedule property obtained by him. The allegation was that the 7th defendant had trespassed into the suit property and reduced B schedule property into his possession. 3. The main contesting defendant was the 7th defendant in the suit. He pointed out that he had instituted a suit against the vendor of the plaintiff residing in the same property and later he had filed another suit as O.S.No.921/1977 for recovery of the portion of the property on the strength of the title. According to him, the property is in his absolute possession and he has not trespassed into any portion of the property owned by the plaintiff. Therefore, the 7th defendant prayed for a dismissal of the suit. It appears that the 7th defendant died during the pendency of the suit and his legal heirs were brought from the party array. S.A.No. 57 of 1999 2 4. Based on the above pleadings, the necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Ext.A1 from the side of the plaintiff. Defendants was examined DW1 and had Exts.B1 to B3 were marked. The trial court found that the vendor of the plaintiff had suffered a decree in O.S.No.921/1977 wherein the plaintiff's title (7th defendant in the present suit) had been declared and he was found to be entitled to the property in that suit which is the property in the suit also. Apart from the above fact, it is also pointed out that there was no attempt from the side of the plaintiff to get the property identified. On the basis of these findings, the trial court dismissed the suit. The plaintiff carried the matter in appeal as A.S.No.286/1994 before the District Court, Thrissur. Before the lower appellate court there was a prayer for remand of the suit to the trial court for identification of the property. Several other contentions were also been raised. 5. The lower appellate court taking note of the decision in O.S.921/1977 come to the conclusion that the plaintiff has no title. As far as the prayer for remand was concerned the lower appellate court has considered that aspect in considerable detail and declined the same. Accordingly, the appeal was dismissed. 6. Notice is seen issued on the following substantial questions of law: S.A.No. 57 of 1999 3 1. Is not that the possession follows title, ought have applied in deciding issue No.I and 2 in the case. 2. Is not the uninterrupted, continuous possession from the date of Ext.A1 does establish the title of the appellant to plaint B schedule: 3. Is it not illegal that the appellate court reach a finding regarding the possession over B schedule by the appellant against the conducted finding of possession regarding the same B schedule in A.S.160/1982. 4. Is not the assignors as defendants in a suit impliedly represent the assignees with reference to contentions of title and possession of the property assigned. 7. The learned counsel appearing for the appellant contended that the action of the courts below in placing reliance on Ext.B3 cannot be justified. Ext.B3 is the judgment in O.S.No.921/1977 to which the appellant was not a party. The evidence would disclose accordingly to the learned counsel that even prior to the institution of O.S.No. 348/1977, that the plaintiff in the said suit was aware that the property has been assigned and that the defendant in the said suit had no right over the property. As regards Ext.B3 is concerned the learned counsel pointed out that he has chosen to produce an additional S.A.No. 57 of 1999 4 document before the court below in evidence. By way of additional evidence he had produced judgment of the appellate court against the judgment and decree in O.S.No.921/1977 where the question regarding the title to the B schedule property involved in the said suit was left open. Accordingly, it is contended that it could not be said that the title of the property is concluded by Ext.B3. The learned counsel also went on to point out that at any rate the lower appellate court was unjustified in not granting the prayer for remand so as to enable the plaintiff to have the property identified. 8. Though the arguments may look attractive on a close remedy it can be found to be without any merits and substance. The plaintiff had come forward with a suit on title. It is well settled by now that when the plaintiff institutes a suit on title the burden is entirely on him to establish his title to get the relief he has sought for. He cannot succeed on the weakness of the defence case even assuming defendants had set up a rival title, but were not able to prove the same. 9. The facts and evidence in this case discloses that D1 to D5 in the suit who were the assignors of the plaintiff as per Ext.A1 faced litigation from the 7th defendant as plaintiff in two suits namely O.S.No.348/1977 which was the suit for injunction and O.S.No.921/1977 which was the suit for recovery of possession on the S.A.No. 57 of 1999 5 strength of title. In the light of O.S.No.921/1977 it appears that O.S.No.348/1977 was not be prosecuted. Whatever that be O.S.No.921/1977 ended in Ext.B3 judgment. It is true along with the petition seeking to have additional evidence adduced before this court, the appellants have produced the appellate court judgment against the judgment and decree in O.S.921/1977. It is also true that in the said document, it is seen that the question of title to plaint B schedule property is left open. It was found by the lower appellate court that the plaintiff in the said suit was aware that the plaint B schedule property has already been transferred even before the suit and that person had not been impleaded. 10. Even assuming as already stated merely by showing that the defendants title may be defective, the plaintiff cannot succeed. There was no attempt from the side of the plaintiff to get his property identified and prove the title to show that the defendants had in fact no right to any portion of the suit property. For reasons best known to the plaintiff did not want a commission to identify the property and get a sketch prepared. The result was that there was no identification of this property. 11. As far as the prayer for remand is concerned, which is made before the lower appellate court, the lower appellate court has considered the prayer at length and has given cogent and convincing S.A.No. 57 of 1999 6 reason as to why the prayer could not be granted. One must remember that the suit is of the year 1982. The appeal was disposed of the lower appellate court in 1998. It was then that the prayer for remand was made. The lower appellate court found that there were several opportunities for the plaintiff to have the properties identified by getting a commissioner appointed but he did not do so and there was no reason as to why it should be allowed at the appellate stage. The finding of the courts below could not be successfully assailed by the appellant. It is not shown that the appreciation of the evidence is either perverse or the findings are unjustifiable. No substantial questions of law arises for consideration in the second appeal. The second appeal is without merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE. ln