IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 SA.No. 514 of 1995(C) --------------------- AS.49/1994 of SUB COURT,NEYYATTINKARA OS.64/1986 of PRL.M.C.,NEYYATTINKARA .................... APPELLANT in SA:- APPELLANT/1st DEFENDANT: ------------------------------------------ Dr. ATHANAS LOUIS KANJIRAMKULAM NURSING HOME FROM KAPPIKADU CHARUVILA VEEDU KONNIYOOR MURI, PERUMKULAM VILLAGE BY ADV. SRI.G.UNNIKRISHNAN SRI.G.P.SHINOD RESPONDENTS:- RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 TO 4: --------------------------------------------------------- 1. JOSEPH NADAR JASAYYAN ANCHUTHOZHUVEACHA VADAKKATH PUTHEN VEEDU THIRUPURATHOOR DESOM THIRUVANANTHAPURAM PAKUTHY (DIED) 2. THANKAMMA SASIKALA DEVI POOVANADI VEEDU, CHITHARAL DESOM ARUMANA VILLAGE FROM THANPONNAMKALA VALIYAVILA VADAKKE PUTHEN VEEDU KANJIRAMKULAM DESOM, DO VILLAGE 3. THANKAMMA VIMALAKUMARI THANPONNAMKALA VALIYAVILA VADAKKE PUTHEN VEEDU, KANJIRAMKULAM DESOM KANJIRAMKULAM VILLAGE 4. CHELLAPPAN NADAR PRABHAKARAN NADAR DO- - DO ADDL R5 TO R8 R5. BABY SAROJAM, W/o. JASAYYAN, MANAVELIYIL SHERIN NIVAS, PAZHAYAKADA, THIRUPURAM, NEYYATTINKARA R6 J B SHERIN, MANAVELIYIL SHERIN NIVAS, DO – DO R7 J B SURESH KUMAR, DO – DO R8 J B SATHEESH KUMAR DO – DO (ADDL RESPONDENTS 5 TO 8 ARE IMPLEADED AS THE LRS OF DECEASED 1st RESPONDENT AS PER ORDER DATED 18-09-2007 IN CMP.1641/98) ADV. SRI.S.JAMES VINCENT FOR R1 ADDL. R5 TO R8 SRI.P.V.RAMESH SHANKAR FOR R3 SRI.R.T.PRADEEP THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.514 of 1995 --------------------------------------- Dated this 12th day of March, 2010 JUDGMENT The following substantial questions of law are framed for a decision in this second appeal at the instance of defendant No.1 who is challenging the concurrent verdict against him. (i)Whether on the facts and circumstances of the case courts below have gone wrong in finding that plaintiff has title and possession of plaint B schedule property?. (ii)Whether first appellate court was justified in rejecting the request of appellant/defendant No.1 to receive additional evidence tendered before it?. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 2. It is not disputed that plaint A schedule, 44 cents comprised in survey No. 63/1 originally belonged to the Government being Kandukrishi land and while so as per Ext.A1, proceeding dated 30-06-1964 of the special Tahasildar for registry of kandukrishi lands the said 44 cents was assigned in favour of different persons of whom one was Yacob Joseph, father of the plaintiff. According to the plaintiff his father got 7.397 cents by that assignment out of the said 44 cents (described in plaint A schedule) as item Nos.2 and 8 of Ext.A1. The S.A.No.514 of 1995 2 said 7.397 cents is described in plaint B schedule. After the death of Yacob Joseph there was a partition among plaintiff and his brothers including PW1 as per which plaint B schedule was allotted to the share of plaintiff as B schedule item No.1 in the partition deed (Ext.A2). Defendant Nos.2 to 4 are assignees of various portions of the said 44 cents under Ext.A1, proceeding. Defendant Nos.2 and 4 are said to have assigned the portion assigned to them to defendant No.1 as per Exts.B1 and B2. It is alleged by the plaintiff that defendant No.1 destroyed the boundary of plaint B schedule. Plaintiff, hence sued the defendants for a declaration of his title, possession, fixation of boundary and for prohibitory injunction. Defendant Nos.2 to 4 did not contest the suit and were set ex parte. Defendant No.1, assignee from defendant Nos.2 and 4 denied title and possession claimed by plaintiff over plaint B schedule and contended that the 7.397 cents allotted to Yacob Joseph does not lie contiguous. According to him of the 7.397 cents, only 1.693 cents was assigned to Yacob Joseph on the west of the lane and remaining 5.704 cents was assigned to him on the east of the lane. It is also the contention of defendant No.1 that as per Ext.A2, partition deed entitlement of plaintiff is only for 1.693 cents on the west of the lane. Trial court found on the evidence before it that no part of the 44 cents covered by Ext.A1 and comprised in survey No.63/1 fell on the east of the lane and hence contention that 5.704 cents which formed part of 7.397 cents allotted to Yacob Joseph is on the east of the lane is not acceptable. Trial court acting upon Ext.C4, S.A.No.514 of 1995 3 plan prepared by the Surveyor declared title and possession of plaintiff over plaint B schedule and directed fixation of boundary accordingly. Defendant No.1 took up the matter in appeal. Before the first appellate court defendant No.1 produced certain documents (two of the prior documents relied on by the plaintiff and the resurvey plan) under Order 41 Rule 27 of the Code of Civil Procedure (for short, “the Code”) which were not accepted by the learned Sub Judge. Learned Sub Judge concurring with the view expressed by learned Munsiff dismissed the appeal and hence the second appeal on the substantial questions of law framed above. Defendant No.3 who was absent throughout in the trial and first appellate courts has recently made her appearance in this appeal through counsel. 3. It is contended by learned counsel for appellant/defendant No.1 that there is no proper identification of plaint B schedule property, none of the documents relied on by courts below to hold in favour of proper identification are either binding on defendant No.1 or are acceptable. As such courts below went wrong in holding in favour of identification of plaint B schedule property. It is contended by learned counsel that even if Ext.C4 were to be accepted, that plan would indicate that a portion of the property belonging to defendant No.1, he having acquired the same from defendant Nos.2 and 4 as per Exts.B1 and B2 overlapped the property over which trial court has declared title and possession in favour of plaintiff and hence without stating how identification of the property belonging to defendant No.1 as per the S.A.No.514 of 1995 4 documents of title (Exts.B1 and B2) relied on and produced by him and as shown under Ext.C4 is not acceptable. Courts below ought not have accepted Ext.C4. Learned counsel for plaintiff in response contend that so far as defendant Nos.2 to 4 are concerned, they have not contested the case remaining ex parte in the trial and first appellate courts and hence defendant No.3 cannot be heard to contend against the judgment and decree of the courts below. It is also the argument of learned counsel that title of plaintiff has been found in earlier litigations also in one of which defendant Nos.2 to 4 were parties and though in the other, none of the defendants were parties. The decision in the former case is binding on the parties while the decision in the latter case can be taken as judicial acceptance of a disputed fact and hence evidence under section 13 of the Indian Evidence Act. Learned counsel contended that in the circumstance there is no reason to interfere with the concurrent verdict entered by the courts below. 4. This being a suit on title, plaintiff has to win on the strength of his case. It has been held by this court in K.B.Ambujakshy Amma and Another Vs. Gopi and Another (1989 (2) KLJ 705 at page 706) that title cannot be declared on surmises and conjecture and that failure on the part of the plaintiff to measure the proeprty with reference to his title deed is fatal. Though in the plaintiff has referred to in the plaint certain documents as conferring title on him over the suit property in paragraph 8 of the plaint it is stated that plaint B schedule was assigned to his father as per Ext.A1, proceeding dated S.A.No.514 of 1995 5 30-06-1964. In Ext.A1, what is assigned to Yacob Jospeh, predecessor- in-interest of plaintiff is plot Nos.2 and 8, plot No.2 being 1.693 cents and plot No.8 being 5.704 cents though he had made claim for a larger extent (17 and odd cents) as per the documents of title referred therein. Unfortunately as is admitted by PW1 and DW1, no plan attached to Ext.A1 is available. Learned counsel for defendant No.1 has an argument that going by Ext.A1, plot Nos.2 and 8 assigned to Yacob Joseph (according to the plaintiff, it is plaint B schedule), do not lie contiguous since it is difficult to believe that the plots given serial numbers 2 and 8 lay contiguous. Plot Nos.3 measuring 16.520 cents was allotted to Parvathy Thankamma from whom it came to defendant Nos. 2 to 4. According to defendant No.1, defendant Nos.2 and 4 assigned their share in the said 16.520 cents to him as per Exts.B1 and B2. 5. Now, I shall refer to the identification of the property made by Advocate Commissioner and Surveyor as per Ext.C4. In Ext.C4, Commissioner would say that the plot OPQRFG is plaint B schedule. At the same time, after measurement of the property belonging to defendant No.1 (based on Exts.B1 and B2) Commissioner has stated that as per Exts.B1 and B2, entitlement of defendant No.1 is for plot KONQREFGHMC. The plot which defendant No.1 is found entitled on the strength of Exts.B1 and B2 overlaps the major portion of plot OPQRFG which according to the plaintiff is plaint B schedule allotted to his father as plot Nos.2 and 8 in Ext.A1. Plaintiff was not able to give S.A.No.514 of 1995 6 satisfactory explanation as to how this overlapping came and how report of Advocate Commissioner and the plan regarding plot KONQREFGHMC could be discarded. 6. One controversy is whether any portion of plaint B schedule is situated on the east of the lane. Learned counsel for defendant No.1 has invited my attention to the description of plaint B schedule and the property allotted to plaintiff's brother as per Ext.A2. Learned counsel argues that though entitlement of Yacob Joseph as per Ext.A1 is only for 7.397 cents in survey 63/1, recitals in the relevant schedules of Ext.A2 would show that the property is referred to as included in survey 62/1 also and further that there is reference to a portion of the property being situated on the east of lane in which case finding of the courts below that plaint B schedule is on the west of lane and the description regarding property on the east of the lane (in Ext.A2) is only a mistake cannot be accepted. Though that argument may sound attractive, I am unable to accept it for the reason that it is not disputed that the assignment made by government as per Ext.A1 was in respect of the 44 cents in survey 63/1, the survey plan of which is Ext.A6 as rightly found by the courts below and, which I find no reason to interfere. On acceptance of Ext.A6, it is clear that the entire 44 cents in survey 63/1 is situated on the west of the lane. As such, courts below are correct in holding that no portion of plaint B schedule came on east of the lane. 7. But matters cannot end there. For, still there is several S.A.No.514 of 1995 7 controversies, whether even if the entire 44 cents is on the west of lane plaintiff has absolute title and possession of plaint B schedule which the Advocate Commissioner has identified as plot OPQRFG in Ext.C4. That apart, identification of the property as per Ext.C4 is not based on any of the documents of title relied on by the predecessor-in- interest of the plaintiff and referred to in Ext.A1. On the other hand going by Ext.C1, request of plaintiff was to measure the properties based on the survey plan (Ext.A6) and Ext.C2, plan marked in O.S.No.659 of 1978. It is not disputed that in O.S.No.659 of 1978, none of defendant Nos.2 to 4, not to say about defendant No.1 were parties. That was a suit filed by the plaintiff for eviction of some of his tenants from the building allegedly situated in plaint B schedule. Therefore, defendant No.1 cannot be said to be bound by Ext.C2 marked in O.S.No.659 of 1978. So far as measurement made as per Ext.A6 is concerned, that plan does not give any idea as to where exactly the plots assigned to the respective parties in Ext.A1 are situated. Instead, it only gives a plan of the total extent to 44 cents. As such, measurement made by the Advocate Commissioner and contained in Ext.C4 cannot be accepted. No reliance can be made on Ext.C4. Ext.C4 is therefore set aside. 8. Though Ext.A3(a), copy of plan in O.S.No.659 of 1978 is introduced in evidence on behalf of plaintiff, that document also cannot be relied on for the reason that the Advocate Commissioner or Surveyor who prepared the same have not been examined. Learned S.A.No.514 of 1995 8 counsel for plaintiff has a contention that so far as defendant Nos.2 to 4 are concerned, they are not entitled to resist the suit in view of the decision in O.S.No.365 of 1964 (Ext.A4 is the copy of decree in that case) in which defendant Nos.2 to 4 were parties. According to the learned counsel claim of defendant Nos.2 to 4 is concluded by Ext.A4, decree. But, counsel for defendant No.1 has a different argument. Learned counsel would say that O.S.No.365 of 1964 was concerned only with 3 cents and not in respect of entire plaint B schedule and at any rate it only concerned right of redemption of mortgage which has nothing to do with title claimed by defendant No.1 under defendant Nos.2 and 4. I do not however consider it necessary to pronounce verdict on that contention now in view of the decision I have proposed to make in this case and since that is a matter which the trial court has to consider at the appropriate stage. 9. On hearing counsel on both sides and going through the records of the case, I consider it necessary to have plaint B schedule property identified also with reference to the documents of title relied on by plaintiff and referred to in the plaint and Ext.A1. Merely based on Ext.C4, title and possession of the plaintiff could not have been found. As such, judgment and decree of the courts below declaring title and possession of the plaintiff and fixing boundary of plaint B schedule as referred to in Ext.C4 cannot be sustained and is set aside. 10. It is pointed out by learned counsel for plaintiff that in so far as defendant Nos.2 to 4 remained ex parte in the trial court, they S.A.No.514 of 1995 9 shall not be permitted to contest the suit. That is a matter which the trial court has to decide taking in to account the factual and legal position governing the matter. 11. It is then pointed out by learned counsel for plaintiff that during the time appeal was pending before the first appellate court, there was violation of the order of injunction issued by first appellate court and plaintiff filed I.A.No.2788 of 1990 for mandatory injunction. On that application, a Commissioner was appointed and he has filed report on 03-10-1990. Thereafter on this second appeal being preferred proceeding on that application was stayed. Now that, I am sending the case back to the trial court, it is not necessary to retain I.A.No.2788 of 1990. Hence plaintiff will have the liberty either to seek amendment of the plaint to incorporate prayer for mandatory injunction or, if the alleged act was done by defendant No.1 during pendancy of the suit/appeal and if it is permissible under law so to do, to file appropriate application in the trial court in the course of trial. Plaintiff or defendant No.1 can request the first appellate court to close that application. 12. Controversy also cropped up in the form of correction of resurvey plan which has already been published. Learned counsel for plaintiff submits that after resurvey plan was published defendant No.1 was able to get it corrected to suite his defence but, that was done behind the back of plaintiff. That correction was challenged by the plaintiff in this court in writ petition (O.P.No.10825 of 1999) but the O.P S.A.No.514 of 1995 10 was closed as per judgment dated 09-11-2005 permitting plaintiff to take up his contentions regarding validity and sustainability of correction in the resurvey plain in this appeal. I make it clear that in case reliance is placed by defendant No.1 on the resurvey plan which according to the plaintiff has been corrected without notice to him, it will be open to the plaintiff to take appropriate contentions as are available to him in that regard. I also make it clear that in case properties are requested to be measured and learned Munsiff permits measurement of the property as per the corrected resurvey plan as well, plaintiff will still have all his contentions as against the plan thus obtained. Resultantly, while confirming finding of the courts below that the 44 cents comprised in R.S.No.63/1 as per Ext.A1 is situated on the west of lane, judgment and decree of the courts below granting relief to the plaintiff in respect of plaint B schedule are set aside and the matter is remitted to learned Munsiff, Neyyattinkara for fresh disposal after getting the properties measured in the light of the observations made above. The contesting parties will have the right to adduce further evidence in the matter as may be permitted by the learned Munsiff. The contesting parties shall appear in the trial court on 08- 04-2010. THOMAS P JOSEPH, JUDGE Sbna/