IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 SA.No. 21 of 2000(C) ------------------------------ AS.89/1993 of SUB COURT, CHERTHALA OS.405/1987 OF PRINCIPAL MUNSIFF COURT, CHERTHALA .................... APPELLANTS-APPELLANTS 1 AND 3-DEFENDANTS 1 AND 3: ---------------------------------------------------------------------------------------- 1. VIJAYALEKSHMI AMMA, D/O.BHARATHY AMMA, PADMALAYAM, AROOR P.O., SHERTHALAI. 2. RAJEEV, SON OF RAGHAVAN PILLAI, DO. BY ADV. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR. RESPONDENTS-RESPONDENT & 2ND APPELLANT/ PLAINTIFF & 2ND DEFENDANT: --------------------------------------------------------------------------- 1. SADASIVAN PILLAI, SON OF NARAYANA PILLAI, RESIDING AT PARVATHY VILASOM FROM PUTHUPARAMBATHAYA VELIKKAKATHU, AROOR P.O., SHERTHALAI. *2. LATHA V., STATE BANK OF INDIA, GREEN PARK BRANCH, GREEN PARK, NEW-DELHI. *(DELETED) * THE 2ND RESPONDENT IS REMOVED FROM THE PARTY ARRAY AS PER ORDER DATED 14/10/2011 IN I.A.2493/2011. BY SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE ADV. SRI.P.GOPAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 21 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of November, 201. JUDGMENT Defendants are the appellants. The parties and facts are hereinafter referred to as they are arrayed before the trial court. 2. The plaintiff claimed to be the absolute owner in possession of the plaint schedule property having obtained it under Ext.A2 partition deed of the year 1969. It infact formed a part of 1.37 acres obtained by the father of the plaintiff as per Ext.A1 document. The defendants own property on the southern side of the plaintiff's property. On the allegation that the defendants are trying to trespass into the suit property and set up claims thereon, the suit for declaration of title and possession was instituted by the plaintiff. 3. The defendants resisted the suit. They disputed the title of the plaintiff over the suit property. S.A.21/2000. 2 According to them, the suit property is covered by a gift deed in their favour of the year 1959 and the plaintiff had no manner of right or possession over the same. It is also contended that a portion of the property was acquired for National Highway and compensation for the said acquisition was paid to the defendants. Therefore, the plaintiffs are estopped from contending that the plaint schedule property belongs to them. They also contended that the survey number of the plaint schedule property is wrongly shown with ulterior motive. Disputing the title and possession of the plaintiff, they prayed for a dismissal of the suit. 4. On the basis of the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendants had Exts. B1 to B5 marked. 5. On an appreciation of the evidence in the case, the trial court came to the conclusion that the plaintiff has succeeded in establishing his title and possession over the S.A.21/2000. 3 suit property and a decree followed. The defendants ventilated their grievances before the lower appellate court in A.S. 89 of 1993. Both sides produced additional evidence before the lower appellate court which were taken on file. On an appreciation of the evidence, the lower appellate court too found that the plaintiff had proved his title to the suit property and the defendants had no manner of right over the suit property and confirmed the judgment and decree of the trial court. That brings the defendants before this court. 6. During the pendency of the appeal, a petition was filed to delete the second respondent from the party array and that was allowed. 7. Notice is seen issued on the following questions of law: “A) Whether the plaintiff is not legally estopped from claiming any title or possession in respect of the plaint schedule property since no claim has been raised by the plaintiff in the Land S.A.21/2000. 4 Acquisition proceedings in respect of a portion of the plaint schedule property. B) Whether the judgment Ext.B2 do not operate as res judicata for the maintainability of the present suit? C) When report by a commissioner is evidence in the case as per Order 26 Rule 10 C.P.C., was the court below legally correct in not accepting the same in evidence and consider the same? D) Whether the suit is not barred by adverse possession and limitation when the report of the Commissioner clearly shows that the defendants were in possession as claimed by them?” 8. Learned counsel appearing for the appellants contended that since it is proved that portion of the property had been acquired and award had been passed in favour of the defendants in respect of that portion, it follows that the plaintiff had no title to the suit property. It was also pointed out that the plaintiff had not been able to prove his title to the suit property and therefore the judgment and decree are unsustainable both on facts and in law. S.A.21/2000. 5 9. Learned counsel appearing for the respondent on the other hand pointed out that the total extent of property in Sy. No.44/2 is 7.29 acres and what was given to the defendants as per the gift deed on which they placed reliance was 93 cents on the southern side of 2.66 acres of land which belonged to the predecessor-in-interest of the plaintiff. The commissioner has located the plots obtained by the various sharers under Ext.A2 partition deed and has found that the plaintiff is entitled to plot Nos. 3-5, 3-6, 3-7, 3-8 and 3-9. Learned counsel pointed out that for dubious reasons the defendants have not produced their title deeds nor did they mount the box. Therefore, an adverse inference needs to be drawn against them. According to learned counsel, there are no grounds to interfere with the judgment and decree of the courts below and the appeal is only to be dismissed. 10. There seems to be considerable force in the submission of the learned counsel for the respondent. The plaintiff traces his title to Ext.A2 partition deed dated S.A.21/2000. 6 29.12.1969. In fact the property belonged to the father of the plaintiff, who obtained it under Ext.A1 partition deed in 1957. Father of the plaintiff obtained 1.37 acres of land as per Ext.A1. As per Ext.A2, 57 cents was set apart to the plaintiff, which is on the southern extremity of 1.37 acres obtained by the father of the plaintiff and other two plots were set apart to his brother and sister. It is further south of his property that the property of the defendants is situate. 11. The Commissioner appointed from the trial court has located the property in terms of the title deeds produced by the plaintiff. It is interesting to note that the commissioner identified the entire extent of property and also located 1.37 acres obtained by the father of the plaintiff as per Ext.A1. Thereafter the Commissioner has taken pains to identify the various plots obtained by the sharers under Ext.A2 partition deed. The portion set apart to the plaintiff as per Ext.A2 is identified as plot 3-5, 3-6, 3-7, 3-8 and 3-9, out of which plots 3-6 and 3-9 are acquired for the road. The Commissioner has also identified the 93 cents over S.A.21/2000. 7 which the defendants lay claim and it is found to be in Sy. No. 44/2/2/5. Apart from the above fact, the defendants neither produced their document of title, nor did they mount the box. They rely mainly on the acquisition proceedings. Even that ultimately resulted in favour of the plaintiff as could be seen from the documents produced before the lower appellate court. 12. The courts below have taken notice of the fact that the defendants have adduced no evidence to show that the plaint schedule property is covered by the gift deed. In fact the Commissioner has located the 93 cents obtained by the defendants, which does not include the plaint schedule property at all. 13. The lower courts have considered the evidence in detail and based on the commission report and plan and other items of evidence came to the conclusion that the plaintiff has established his title and possession over the suit property and granted a decree in favour of the plaintiff. It is not shown that the findings are either perverse S.A.21/2000. 8 or unwarranted by the evidence on record. No grounds are made out to interfere with the judgment and decree of the lower appellate court. No substantial question of law arises for consideration in this appeal. The appeal is dismissed with costs to the respondent. P. BHAVADASAN, JUDGE sb.