IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 AS.No. 172 of 1997() -------------------- OS.4/1992 of SUB COURT, OTTAPPALAM .................... APPELLANT(S): PLAINTIFF IN THE COURT BELOW --------------------------- SATHIABHAMA W/O KADARALE VASU THACHAMPARA VILLAGE MUTHUKURUSSI DESOM P.O. MUTHUKURUSSI MANNARKKAD TALUK PALAKKAD DISTRICT BY ADV. SMT. PREETHY KARUNAKARAN ADV. SRI. C. RAMAN RESPONDENT(S): DEFENDANT IN THE COURT BELOW --------------- KUNHAGASTHI ALIA KUNHAVASSI S/O CHOTHIPARAMBIL SOWRIYAR THACHAMPARA VILLAGE MUTHUKURUSSI DESOM P.O. MUTHUKURUSSI MANNARKKAD TALUK PALAKKAD DISTRICT ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON ADV.T.SETHUMADHAVAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/09/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.172 OF 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of September , 2008 JUDGMENT The plaintiff in a suit for recovery of possession, damages and for injunction which was dismissed by the trial court is the appellant. The parties will be referred to as they were before the trial court. The case of the plaintiff was that the plaint schedule proprieties belonged in Jenm to Pulappatta Mana and was outstanding with the family of Kadarale Raman. Raman had effected improvements in the property and was residing after constructing a residential house. By virtue of oral partition the plaint schedule properties were set apart to the share of Raman. Raman gifted the properties to the plaintiff's husband as per registered gift deed dated 859/1965 of the Mannarkkad Sub Registry. Thereafter, the plaintiff's husband Vasu gifted the plaint schedule proerties and other properties to the plaintiff and her son. On 13/03/1974 plaintiff's husband obtained certificate of purchase of the property from Mannarkkad Land Tribunal. The plaint schedule property is item No. 2 in gift deed No. 1097/1974. The property lying A.S.No.172/97 2 on the north of the plaint schedule belongs to the plaintiff's husband. The entire properties are lying as a single valappu and the plaintiff is in possession and enjoyment of the same. Defendant has now property lying on the eastern side of the plaint schedule. Defendant's properties has old etha and fence on the four sides. With some malafide intention, the defendant and his men trespassed upon and appropriated a portion of the eastern side of the plaint schedule property on 30-12-1991. They have also tried to put up a fence. The plaintiff and her men resisted this and defendant retreated from the attempt. The defendant has no right or possession over the plaint schedule property. Hence the plaintiff filed suit for injunction. Suit was subsequently amended for recovery of possession alleging that the defendant has trespassed upon the property and appropriated the plaint B schedule property violating the order of interim injunction issued by the court. The defendant has no right over B schedule property at all. Hence it is necessary to recover possession of that property on the strength of the plaintiff's title till the date of recovery of possession. Plaintiff is entitled to get mesne profits at the rate of Rs. 750/- per Annum. The A.S.No.172/97 3 defendant had cut and removed trees worth Rs. 12,800/- from the plaint B schedule property. The plaintiff is entitled to get that amount by way of damages. After the inspection of the properties by the Advocate Commissioner, the defendant put up granite wall through IONE line violating the order of injunction. That construction is to be removed by an order of mandatory injunction failing which the plaintiff is to be permitted to remove the same and allowed to recover the expenses. 2. The defendant filed a written statement prior to the amendment contending that it is a test suit filed by the plaintiff to harrass the defendant. The plaintiff and his predecessors have no right or possession over the eastern etha of the plaint schedule property. That belonged to Katarale Pazhani. Pazhani has executed a sale agreement in favour of the defendant assigning his property. Since he had violated the agreement, the defendant filed O.S.No.168/1983 before the court for specific performance. The trial court dismissed the suit. But High Court passed decree on 10/04/1990 in A.A.No.412/1985. The defendant deposited the balance sale A.S.No.172/97 4 consideration before the court and filed E.P.No. 13/1991 for the execution of the sale deed. E.P. was allowed and a sale deed was executed by the court in favour of the defendant. Thereafter the defendant filed E.P.No. 143/1991 for getting delivery of the property. Amin delivered the property and that has been recorded by the court on 17/02/1992. Till the date of delivery of that property, the prior owner Pazhani was in actual possession of the property. Therefore, the allegation of trespass is false. Plaintiff if not entitled to get any relief since the eastern etha was included in the property delivered to the defendant as per decree passed in O.S.No. 163/1983. After the amendment of the suit, defendant filed additional written statement. It was contended therein that the property included in the amended plaint is the property delivered over to the defendant by virtue of the decree passed in O.S.No. 168/83 and the sale deed executed by the court. Plaintiff has no right over property comprised in Survey No.80/3. Plaintiff's property is in Survey Nos. 80/2A and 80/2B. The allegation of trespass upon the plaint schedule property after the order of injunction is incorrect. The defendant is not a trespasser of the plaint B A.S.No.172/97 5 schedule property. He has not cut or removed any tree belonging to the plaintiff. He had cut trees only from the property belonging to him. Those trees will not fetch more than Rs. 4,000/-. Defendant had only renewed the etha through IONE line which belongs to him. Plaintiff is not entitled to get any mesne profits. Hence the defendant prayed for dismissal of the suit upholding his contentions. 3. On the above pleadings, the learned Subordinate Judge formulated the following issues for trial: 1) Whether the suit is maintainable ? 2) Whether the plaintiff has title and exclusive possession over the plaint schedule properties ? 3) Whether the eastern boundary forms part and parcel of plaint schedule properties ? 4) Whether the cause of action as alleged in the plaint is true and actionable ? 5) Whether the plaintiff is entitled to a decree for recovery of possession and injunction as prayed for ? 6) Reliefs and costs ? A.S.No.172/97 6 4. Following were the additional issues raised after amendment : 7) Whether the plaintiff is entitled to get any mesne profits and damages, if so, what is the quantum ? 8) Whether plaint B schedule property is part and parcel of plaint A schedule property ? 5. At trial, the evidence consisted of Exts.A1 to A6 and testimony of PW1, husband of the plaintiff on the side of the plaintiff. On the side of the defendant, the evidence consisted of Exts.B1 to B7 and the testimony of the defendant as DW1. Commissioners report - Ext C1, C2 sketch , C3 report, C4 plan and C5 accounts submitted by the Commissioner also found part of the evidence. Ext.A1 was the purchase certificate No.920/1973 issued by the Land Tribunal, Mannarkkad to Vasu. Ext.A2 was the gift deed executed by Vasu in favour of the plaintiff and her son. Ext.A3 was copy of the purchase certificate issued by the Land Tribunal, Mannarkkad . Ext.A4(a) to (f) were basic tax receipts. Ext.A5 was the assignment deed executed by Vellachi and another in favour of Kadarale Raman. Ext.A6 was the gift A.S.No.172/97 7 deed executed by Kadarale Raman in favour of Vasu. Ext.B1 was the copy of the registered assignment deed executed by Raman in favour of Vasu. Ext.B2 was copy of the decree in O.S.No. 163/1983 of the Sub Court, Ottappalam. Ext.B3 was printed copy of the judgment in O.S.No.168/83. Ext.B4 was copy of the appeal judgment in A.S.No. 412/1985. Ext.B5 was assignment deed executed by the court in O.S.No. 168/83 in favour of the defendant. Ext.B6 was certified copy of the delivery account in E.P.No.143/1991 in O.S.No. 168/83 of the Sub Court, Ottapalam. Ext.B7 was certified copy of the Amin's report in E.P.No.143/91 in O.S.No.168/83 of the Sub Court, Ottapalam. 6. Learned Subordinate Judge considered issue Nos. 2, 3 and additional issue NO. 8 together in the light of the evidence and would hold that there was absolutely no evidence to prove that the plaintiff and her predecessors have any right over plaint B schedule property comprised in Survey No. 80/03. It was held that the disputed etha and the B schedule property are not part and parcel of the plaintiff's property. Accordingly, those issues were answered in favour of the defendants. Similarly issues 1 and 4 were considered by the learned A.S.No.172/97 8 Subordinate Judge together. Answering those issues, it was held that the cause of action stated in the plaint is neither true nor actionable. Accordingly, those issues were also found against the plaintiff. As regards issue No. 7, learned Subordinate Judge noticed that it was admitted by the defendant that he had cut and removed some trees from plaint B schedule property. However that issue was also found against the plaintiff on the basis of the earlier finding that the plaintiff has no right over the property. Issue Nos. 5 and 6 were also answered against the plaintiff and accordingly the suit was dismissed. 7. I have heard the submissions of Smt.M.M.Deepa, learned counsel for the appellant and Sri.T.Sethumadhavan, learned counsel for the respondent. Smt.Deepa would argue that the learned Subordinate Judge was in error in deciding the issue of title solely based on survey numbers. Learned counsel submitted that going by the boundary description and extent, the plaintiff has title over plaint B schedule property. Learned counsel submitted that it was trite that there was discrepancy in the survey numbers. Identity of the property was to be decided on the basis of the description of boundary, measurements and A.S.No.172/97 9 extent rather than survey numbers. Learned counsel submitted that the court below has not given any importance to the physical features of the property obtaining on the date of the suit as was reported by the Advocate Commissioner. Learned counsel pointed out that the defendant could trace his title only to Ext.A3 wherein the extent shown is only 25 cents in Survey No. 80/3. Therefore, the defendant could not claim anything in excess of 25 cents. She submitted that it was not established in the case that the extent shown in Ext.A3 is erroneous. Referring to the decree in O.S.No. 168/83, the learned counsel submitted that the plaintiff was not a party to that decree and hence Exts.B2 to B7 were not binding on the plaintiff. She pointed out that even in O.S.No. 168/83 there was dispute regarding the extent and the property was not identified in that suit. Therefore the extent shown in Ext.B5 and B6 has no relevance so far as the present dispute between the parties is concerned. Learned counsel submitted that the defendant has tampered with the visible boundary mark of the plaintiff's property violating the order of injunction. Therefore an adverse inference ought to have been drawn against the defendant in so far as the dispute A.S.No.172/97 10 between the parties touching upon the boundaries is concerned. Smt.Deepa also relied on the judgments of the Supreme Court in Kalwa Devadattam and others v. Union of India and others ( AIR 1964 Supreme Court 880) and in Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others ( AIR 1960 Supreme Court 100) to argue that when both sides have adduced, abstract consideration of onus probandi are out of place and truth or otherwise of the case is to be adjudged on the basis of whatever evidence which comes on record. 8. Sri.T.Sethumadhavan, learned counsel for the respondent would answer the arguments of Smt.Deepa mainly on the basis of the reasons stated by the learned Subordinate Judge in his judgment. Learned counsel submitted that the plaintiff cannot pretend ignorance regarding decree in O.S.NO. 168/83 and also regarding delivery of the property in that suit in favour of the defendant. 9. Having re-appreciated the evidence, I am of the view that the learned Subordinate Judge was justified in relying on Exts.B4, B5, B6 and B7. The suit property in Ext.B4 had an extent of 35 cents. A.S.No.172/97 11 This court in appeal decreed the suit for specific performance and directed Pazhani, the predecessor in interest of the defendant, to execute a sale deed in favour of the defendant in respect of the entire 35 cents of property. The plaintiff according to me is over simplifying in matters by contending that Ext.B4 judgment is not binding upon her as she is not a party to the suit. Under Ext.B5 it is 35 cents of land which is conveyed to the defendant. On the strength of Ext.B5, EP was filed and Ext.B6 delivery accounts and Ext.B7 Amin's report will show that the property was delivered over to the defendant. It is difficult to accept the case of the plaintiff that she was unaware of what happened in Exts.B5, B6 and B7. 10. The appeal will stand dismissed. However, it is made clear that neither the judgment and decree of the learned Subordinate Judge nor the present judgment confirming them will stand in the way of the plaintiff suing for fixation of boundaries of her property arraying all necessary parties and giving details of all the properties in respect of which she is seeking boundary fixation in respect of her property. It is also made clear that there is no dispute regarding the plaintiff's title A.S.No.172/97 12 over the property which is shaded yellow in the Commissioner's sketch. The plaintiff is having title over the yellow shaded portion and the impugned judgment and this judgment confirming the same will not stand in the way of the plaintiff seeking appropriate reliefs by initiating fresh proceedings in respect of the above yellow shaded portion. The parties are directed to suffer their respective costs. PIUS.C.KURIAKOSE JUDGE sv. A.S.No.172/97 13