IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 SA.No. 314 of 1998(D) ------------------------------- AS.22/1995 of SUB COURT, QUILANDY OS.89/1988 of MUNSIFF MAGISTRATE COURT, PERAMBARA .................... APPELLANT/RESPONDENT/PLAINTIFF ------------------------------------------------------- MAMMAD HAJI, AGED 70 YEARS, S/O.MOIDEEN, RESIDING AT THONDIKATTIATT HOUSE, ERAVATTUR AMSOM,KIZHNHANYAM DESOM, P.O.PERAMBRA, KOZHIKODE DISTRICT. *( EXPIRED) * ADDL. A2 TO A9 IMPLEADED * ADDL.A2: KHADEEJA, W/O. MAMMAD HAJI, AGED 45 YEARS, THANDIKATTIATT HOUSE, ERAVATTUR AMSOM, KIZHNHANYAM DESOM, P.O. PERAMBRA, KOZHIKODE DISTRICT. A3: KUNHAMI,D/O.MAMMAD HAJI, AGED 45 YEARS, PUZHAKKAL(HOUSE), KAYANNA AMSOM, MATTANOD (POST), ATHIYODI (VIA) A4: MOIDU, AGED 39 YEARS, S/O.MAMMAD HAJI, THANDIKATTIATT HOUSE, ERAVATTUR AMSOM, KIZHNHANYAM DESOM, P.O.PERAMBRA, KOZHIKODE DISTRICT. A5: NAFEESA, AGED 39 YEARS, D/O.MAMMAD HAJI,KOLLYIL HOUSE, PERAMBRA POST. A6: KADEEJA, AGED 36 YEARS, D/O.MAMMAD HAJI, THONDIKATTIATT HOUSE, ERAVATTUR AMSOM, KIZHNHANYAM DESOM, P.O.PERAMBRA, KOZHIKODE DISTRICT. A7: SAINABA, AGED 33 YEARS, D/O.MAMMAD HAJI, KALLITTA MAMIKKOTH, KINALOOR(POST) BALUSSERI (VIA) A8: SUBAIDA, AGED 28 YEARS, D/O.MAMMAD HAJI, VAZHAKKALIL HOUSE, MELADI POST. sts S.A.NO.314/1998 A9: JAMEELA, AGED 3 26 YEARS, D/O.MAMMAD HAJI, THONDIKATTIATT HOUSE, ERAVATTUR AMSOM, KIZHNHANYAM DESOM, P.O.PERAMBRA, KOZHIKODE DISTRICT. * ADDL.APPELLANT 2 TO 9 IMPLEADED AS THE LEGAL HEIRS OF DECEASED SOLE APPELLANT AS PER ORDER DATED 23/7/09 IN IA. 2062/04 IN SA. BY ADV. SRI.C.VATHSALAN RESPONDENT/APPELLANT/DEFNDANT -------------------------------------------------------- E.K.SOUMINI, AGED 60 YEARS, D/O.SANKUNNY,(RETD) HEADMISTRESS, RESIDING AT THONDIKATTAYATT PARAMBIL, KIZHAKKU VADAKKUBHAGAM STHALATH, ERAVATTUR AMSOM, KIZHNHANYAM DESOM, P.O.PERAMBRA, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.R.K.MURALIDHARAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. ---------------------------------- S.A.No.314 of 1998 --------------------------------- Dated this the 1st day of February, 2011 JUDGMENT The plaintiff in O.S.No. 89/1988 before the Munsiff-Magistrate Court, Perambra, who was non-suited by the lower appellate court is the appellant. The appellant is no more and his legal heirs are impleaded. 2. The plaint A and B schedule properties belonged to the plaintiff as per a registered document dated 10.11.1947 on leasehold right. The plaint B schedule property is on the north-eastern portion of the Plaint A schedule property and that was leased by the plaintiff to Kerala Varma, who was the Headmaster of Perambra High School, as per a registered document dated 27.3.1958. The defendant got assignment of the said property from Kerala Varma. The southern and western boundaries of the B schedule properties are the properties in possession of the plaintiff. Even though initially the suit was one for injunction, later it was amended for recovery of possession of C schedule property. 3. The defendant resisted the suit. It is pointed out that as per the assignment in their favour from Kerala Varma, she in fact had got more extent of property what that is stated in the deed. She S.A.No.314 of 1998 2 contended that the properties obtained and possessed by her are within well demarcated boundaries and the plaintiff has no manner of right to interfere with the possession and enjoyment of the defendant. The plaintiff 's contention that he has got property comprised in Re-survey No. 16/2 is not correct and his right are confined only to the property comprised in Re-survey No.16/1. On the basis of these grounds she prayed for a dismissal of the suit. 4. 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 and A2 from the side of the plaintiff. DWs 1 to 3 were examined from the side of the defendants. Exts.C1 to C6 are the commissioner's report and plan. 5. The suit was decreed in part and the defendant was directed to surrender possession of C schedule property to the plaintiff within one month. The aggrieved defendant took up the matter in appeal as A.S.No.22/1995. The lower appellate court allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit. Hence this appeal. 6. Notice has been issued on the following substantial questions of law: S.A.No.314 of 1998 3 1. Is the lower appellate court justified in relying upon the mistake or omission as to mentioning of a survey number of a property while other clinching evidence as to the identity and extend of the disputed property is available for consideration. 2. Is the lower appellate court is not bound to draw an adverse inference under the evidence act as to the title of the defendant respondent as to the disputed property for non production of her title deed. 7. The learned counsel appearing for the appellant drew the attention of this court to Exts.C5 and C6 plan and contended that it is clear from Ext.C6 that plot D is the area trespassed by the defendants and it belongs to the plaintiff. The trial court was fully justified in granting a decree in respect of the D plot which is shown as C schedule to the plaint. It is contended that the lower appellate court has misdirected itself in appreciation of the evidence and has come to a wrong finding. The findings of the lower appellate court have resulted in miscarriage of justice. 8. Per contra the learned counsel for the respondent pointed out that the plaintiff at no point of time had a case that by virtue of Ext.A1 document, he had obtained any extent of property in survey No.16/2 S.A.No.314 of 1998 4 If what the plaintiff says is correct the property assigned as per Ext.A2, consist of A and B plots. Similarly it was pointed out that there are well laid boundaries on the western and southern sides of plot D as shown in C6 report, which is C schedule to the plaint. These salient features were relied on by the lower appellate court to hold in favour of the defendant so no interference is called for. 9. In Ext.C6, Ext.A2 property is shown as plots A and B. Plot C on the east of plot B is shown as High School Property in the possession of the defendants. D plot is the disputed portion. It is pointed out that the respondents had filed detailed objection in Ext.C6 plan and C5 report. It is not possible to hold that D plot will not fall within the assignment deed as evidenced by Ext.A2. One cannot omit to note that B plot is shown in Ext.C6 is comprised in survey No.16/2. Going by the boundaries in Ext.A2, the southern boundary of the property is also comprised in survey No. 16/2. Apart from the above facts another striking feature is the well laid boundary on the southern and western sides of plot B. Thus as contended by the respondent herein the property obtained by him falls within well demarcated boundaries. 10. The lower appellate court has considered the matter in detail. It has verified the boundaries of the respective title deeds and S.A.No.314 of 1998 5 has referred to the commissioner's report and plan. Survey No.16/2 was introduced by a subsequent amendment. As noticed by the lower appellate court there is absolutely no evidence to show that the plaintiff had obtained any property in Survey No.16/2. It cannot be simply treated as innocuous mistake. The plaintiff who seeks relief on the basis of his title deed has the burden to establish the same. It cannot thrive on the weakness of the defence case. The lower appellate court is fully justified in coming to the conclusion that A2 takes in D plot also shown by the commissioner in C6. There is no merit in this appeal and accordingly it is dismissed. No order a to costs. P.BHAVADASAN, JUDGE. ln