IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 SA.No. 873 of 2000(D) --------------------- AS.91/1993 of SUB COURT, PAYYANNUR OS.280/1985 of MUNSIFF COURT, THALIPARAMBA .................... APPELLANT(S): APPELLANT/DEFENDANT ----------------------------------------------------------- KALLIYAT THAZHATH VEETTIL SREEMATHI AMMA, D/O.RAYARAPPAN NAYANAR, AGED 52 YEARS, RESIDING AT PADIYOOR AMSOM DESOM, THIDIYADI, HOUSE NO.542,WARD NO.VIII, PADIYOOR-KALLIYAD PANCHAYAT, KANNOOR DISTRICT REPRESENTED BY HUSBAND AND ATTORNEY K.T.RAJAGOPALAN NAMBIAR. BY ADVS. SRI.C.G.SUNIL SRI.V.M.BABY SRI.SAJI MATHEW SMT.E.V.MOLY RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------------------------------------- THAZHATHE VEETTIL DAMODARAN, AGED 51 YEARS, S/O.CHANDU NAIR, PADIYOOR AMSOM DESOM, THIDIYODI, HOUSE NO.541, WARD NO.VIII, PADIYOOR KALLIYAT PANCHAYAT, KANNOOR DISTRICT BY ADV. SRI.K.V.SOHAN SRI.B.PREMNATH (E) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- SA No.873 of 2000-D ------------------------------------- Dated this the 7th day of June 2011 Judgment The defendant in OS No.280/85 before the Munsiff's Court, Thaliparamba, is the appellant. He suffered decrees at the hands of the courts below. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Shorn off unnecessary details, the plaintiff claimed two acres of land on the basis of Exts.A1 and A2 orders of the Land Tribunal. His grievance was that plaint B schedule property, which is a portion of plaint A schedule property, is attempted to be trespassed upon by the defendant and therefore, he had to lay the suit. Later on, the suit was amended, incorporating the claim for recovery of possession on the strength of title. 3. The defendant resisted the suit, pointing out that the property obtained by the plaintiff is not as shown in the plaint. It was not disputed that two J forms were filed by SA 873/00 2 the parties in respect of one acre each and therefore, the plaintiff was entitled to 2 acres of land. The identity of the property was disputed. It was contended that plaint B schedule shown is not a portion of the property in respect of the J forms filed by the defendant. Accordingly, the defendant contended that the plaintiff had no manner of right over the plaint B schedule property. Therefore, he prayed for dismissal of the suit. 4. Before the trial court, issues were raised and evidence was adduced. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A3 (b) from the side of the plaintiff. The defendant had DWs 1 and 2 examined and Ext.B1 marked. Exts.C1 to C4 commissioner's report and plan were also marked. 5. The trial court, after evaluation of the evidence on record, dismissed the suit. The plaintiff carried the matter in appeal as AS No.91/93 before the Sub Court, Payyannur. At the appellate stage, the plaintiff wanted to amend the suit and it was converted into one for SA 873/00 3 recovery of possession on the strength of title. Considering the facts and circumstances of the case, the lower appellate court was gracious enough to remand the matter to the trial court for fresh consideration in accordance with law. Thereafter, the plaint was amended and the suit was converted into one for recovery of possession on the strength of title. After remand, based on Exts.C3 and C4 reports, both the courts below granted a decree in favour of the plaintiff. The defendant assails the decrees. 6. Notice is seen issued on the following questions of law raised in this second appeal : 1.In a suit for injunction and eviction on the strength of title, whether the court below is justified in casting the burden of proof upon the defendant to decide on the title of the property of the plaintiff ? 2.When the plaintiff failed to produce his title deeds, whether it can be presumed that he has got title in view of non-production of title deed by the defendant ? 3.On the basis of the orders of the Land Tribunal (A1 and SA 873/00 4 A2) can the court decide title and boundary of a property without production of purchase certificates which alone describe the property ? 4.In a case where the plaintiff alleges trespass, whether eviction can be ordered without proving trespass ? 5.Whether the court below can rely upon a commission report which could not be explained or substantiated by the commissioner herself ? 6.In the facts and circumstances of the case, whether decree for eviction can be passed without identifying the property and its boundaries, when there is serious dispute regarding location and identity of the property ? 7.In the facts and circumstances of the case, whether any decree can be passed in a suit which was not properly framed ? 8.When the decision of the courts below is reached after placing the onus of proof wrongly on the defendant and the decision is based on no evidence, can it be held that the decision is conclusive on facts ? SA 873/00 5 7. The learned counsel for the appellant pointed out that it is not discernible from the commissioner's report or plan as to how the measurements were taken and how the properties, which are said to be covered by Exts.A1 and A2 orders, have been identified. Emphasis was laid on the fact that neither the purchase certificate nor the J forms were produced and therefore, it was not possible to ascertain the identity of the property claimed by the plaintiff. As far as Exts.A1 and A2 are concerned, according to the learned counsel, only one document shows the boundaries and that was insufficient to actually identify the property with reference to which claim was made by the plaintiff. In short, the learned counsel pointed out that there has not been proper identification of the properties said to have been obtained by the plaintiff as per the J Forms submitted by the parties and according to him, that has resulted in depriving the defendant of a portion of the property, which actually belonged to him. 8. The learned counsel for the respondent, on SA 873/00 6 the other hand, contended that there were two plans and reports - Exts.C3 and C4 and it was based on Exts.C3 and C4 that the decree was granted. The learned counsel contended that the defendant had no dispute that two acres of land was given on lease to the plaintiff and two J forms for one acre each were jointly signed and submitted by the parties. The commissioner has identified the properties and has prepared Ext.C3 plan, which shows 'A', 'B' & 'C' plots. The dispute relates to 'B' plot. The learned counsel went on to point out that the commissioner was able to identify the property and the courts below were impressed by the identification made by the commissioner and therefore, the decrees followed. According to the learned counsel, the findings are based on evidence on record and are pure questions of fact. No substantial questions of law arise for consideration in the second appeal and it is only to be dismissed. 9. In the case on hand, the plaintiff claims title to SA 873/00 7 plaint A schedule property of which B schedule is a portion by means of two purchase certificates said to obtained by him in pursuance of Exts.A1 and A2 orders. One may at once notice that the purchase certificates and the J forms have not been produced. Out of the two orders, Ext.A1 alone shows the boundaries and it is not possible to identify the properties covered by Ext.A2. 10. The precise contention of the defendant was that the property now claimed by the plaintiff as B schedule which he claims, is a portion of A schedule, does not actually belong to him and that is a portion of the property owned and possessed by the defendant. Under such circumstances, the burden was on the plaintiff to show that plaint B schedule property was covered by assignments in his favour and that he had title to the property. One would have expected the plaintiff to produce the purchase certificate. In fact, when examined as PW1, he would say that he has documents, namely, purchase certificate to show that he is the owner of the property and its identity. SA 873/00 8 He is certain that J forms filed by him in respect of A property also specifies the boundaries of the properties. 11. The learned counsel on both sides were unable to help this court to understand the manner in which the properties have been identified by the commissioner. The commissioner's report is not at all helpful in this regard. In fact, a reading of the commissioner's report confuses the issue. To say the least, it is not possible to understand how the properties claimed by the plaintiff were identified by the commissioner. It is significant to notice that going by Exts.A1 and A2, the properties are comprised in different survey numbers, namely Survey Nos.1/1 and 1/1A. The commissioner's report does not disclose either the survey numbers or what is the extent of properties covered by Survey No.1/1A. Of course, the defendant, as DW1 has stated that he has not filed any objection to the commissioner's report, which does not appear to be correct. Both the courts below have noticed that objection was filed by the defendant to the commissioner's report. SA 873/00 9 But the trial court, chose not to accept the objection and set aside the commissioner's report. The lower appellate court merely mentioned that fact and left it there. As already stated, both the courts below have placed reliance on Exts.C3 and C4 plans, about which discussions have already been made in the earlier part of this judgment. 12. Apart from all these facts, going by the plaint schedule as it now stands, especially A schedule property, the boundaries do not tally with the plan and report furnished by the commissioner. In short, there has not been proper identification of the property as rightly pointed out by the learned counsel for the respondent. In a suit for recovery of possession on the strength of title, identification of the property is of primary importance. Therefore, it is necessary that the properties covered by Exts.A1 and A2 orders on the basis of which purchase certificates were issued to the plaintiff and on the basis of which he lays claim, are properly identified. The available commissioner's report and plan are of no help in this regard. With much SA 873/00 10 reluctance, this court is constrained to remand the matter to the trial court for that purpose. 13. Accordingly, this appeal is allowed. The impugned judgment and decree are set aside and the matter is remanded to the trial court for fresh consideration as stated above. The parties may appear before the trial court on 27.07.2011. They will be free to adduce further evidence, if they are so advised. If as a matter of fact, the plaintiff has taken possession of the plaint schedule property, in pursuance of the decree, the present position shall not be disturbed till the suit is disposed of by the trial court as directed herein above. Being a suit of the year 1985, this court is certain that the trial court will make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of appearance of parties before it. P.Bhavadasan, Judge sta SA 873/00 11 SA 873/00 12