IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 SA.No. 977 of 2000(G) ------------------------------- [AS.NO.25/1996 OF SUB COURT, VADAKARA, OS.NO.23/1992 OF MUNSIFF'S COURT, VADAKARA] .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ----------------------------------------------------------- 1. T.C. SOUDHAMINI, KALATHIL HOUSE, AZHIYUR AMSOM, DESOM, VADAKARA TALUK. 2. T.C. CHANDRAMATHI, “KRISHNA”, AZHIYUR AMSOM, DESOM, VADAKARA TALUK. BY ADVS. SRI.B.KRISHNAN, SRI.R.PARTHASARATHY. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. PATHRAMMEL SEENATH, “BISMILLA” MANZHIL, NEAR SREEKRISHNA BHAJANA SAMATHI, MAHE. 2. T.K. ABDUL GAFOOR, -DO-. BY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- SA No.977 of 2000-G ------------------------------------- Dated this the 2nd day of January 2011 Judgment The plaintiffs, who were non-suited by the courts below are the appellants. The plaintiffs claims to have been obtained the plaint schedule property under the final decree proceedings in AS No.472/62 as per Exts.A1 to A3. According to them, as per the final decree passed in IA No.724/74, the property was allotted to the first plaintiff, second plaintiff and others. Eversince the delivery was obtained of the said plot, the plaintiffs have been in absolute possession and enjoyment of the same. According to them, the defendants have no manner of right over the suit property. Apprehending that the defendants may trespass into the suit property, the suit was laid. 2. The defendants resisted the suit. They disputed the title and possession of the plaintiffs over the suit property. According to them, the suit property was the SA No.977/00 2 subject matter of OS No.7/1958 which was a partition suit, in which the property was allotted to the share of one Lakshmi Amma and others, who got the property delivered through court. The said Lakshmi Amma as per Ext.B1 dated 16.10.1971 assigned the property to one Moosa and Moosa assigned the property in favour of the defendants as per a registered deed dated 8.2.1982. So, according to them, they are now in possession and enjoyment of the suit property. Pointing out that the plaintiffs have no either title or possession of the property, they prayed for dismissal of the suit. 3. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A3 from the side of the plaintiffs. The defendants had DW1 examined and Exts.B1 to B11 marked. Exts.C1 to C4 are the commissioner's report and plan. 4. On an evaluation of the evidence, the trial court came to the conclusion that the plaintiffs have not SA No.977/00 3 been able to establish possession of the suit property as on the date of the suit and it was held that they were not entitled to any reliefs in the suit. Accordingly, the suit was dismissed. 5. The plaintiffs carried the matter in appeal as AS No.25/96 before the Sub Court, Vadakara. The appellate court, on an independent consideration of the evidence on record, came to the conclusion that the properties have not been properly identified and also that the trial court has rightly refused reliefs in favour of the plaintiffs. The judgment and decree of the trial court was confirmed and the appeal was also dismissed. 6. Notice is seen issued on the following questions of law raised in the second appeal : 1.Are the courts below justified in pronouncing on the identity of the plaint schedule property by misreading of C1 to C4 and B2 and statement of DW1 resulting in manifest failure of justice. 2.Are the courts justified in ruling that A2 delivery SA No.977/00 4 proceedings are not binding on the defendants, on a claim based on maintenance allotment B6 of a thavazhi when the rights of the tarwad are partitioned and delivered under A3 ignoring Sec.52 of the Transfer of Property Act. 3.Are the courts justified in ruling that A2 delivery proceedings does not bind defendants for application of Section 52 of the TP Act on the ground that the defendant is a non-party.” 7. The learned counsel for the appellants pointed out that the courts below were not justified in coming to the conclusion that the properties were not properly identified and they ought to have taken into consideration Exts.C1 to C4 commissioner's report and plan. It is also pointed out that in fact, the defendants had disputed the title of the plaintiffs also and if there was any doubt regarding their possession, they should have been given an opportunity to amend the plaint incorporating the issue regarding title and also to pay the court fee as SA No.977/00 5 required under Section 27(a)(i) of the Court Fees and Suits Valuation Act. It is submitted that the dismissal of the appeal has caused considerable prejudice to them. 8. There seems to be some substance in the above contentions. The commissioner's report shows two buildings as 'A' and 'B'. Building 'A' admittedly belongs to the defendants, while 'B' is claimed by the plaintiffs. It is significant to notice that the defendants disputed the title of the plaintiffs also. May be that the plaintiffs were not in actual possession of the property as on the date of suit. Whatever that be, since the defendants had disputed the title of the plaintiffs also, an opportunity should have been afforded to the plaintiffs to seek amendment of the plaint incorporating the issue regarding title and also to pay court fee as required under Section 27(a)(i) of the Court Fees and Suits Valuation Act. Considering the nature of evidence and the contentions raised by both parties, no prejudice will be caused to the defendants by doing so. SA No.977/00 6 In the result, this appeal is allowed. The judgment and decree of the courts below are set aside and the matter is remanded to the trial court for fresh disposal in accordance with law and in the light of what is stated herein above. The parties shall appear before the court below on 15.03.2011. They will be at liberty to adduce further evidence, if so advised. The trial court shall make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of appearance of the parties before it. P.Bhavadasan, Judge sta SA No.977/00 7