IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 AS.No. 955 of 1998(C) --------------------- OS.487/1995 of SUB COURT, MAVELIKKARA .................... APPELLANTS/PLAINTIFFS 1 TO 3: ----------------------------------------------- 1. P M ABDUL SAMAD MOULAVI SAMADHANIA MANZIL, ATHIKATTUKULANGARA, NOORANAD 2. SAYED MOHAMMED MOULAVI, PALLIVADAKKATHIL)( OF -DO- )( )( Died and Lrs impleaded 3. KADEEJA UMMA OF -DO- )( ADDL.A4 SAFIYA BEEVI, W/O.LATE SAYED MUHAMMED MOULAVI PALLIVADAKKAETHIL, ATHIKKATTUKULANGARA PO NOORANAD, MAVELIKKARA, ALAPPUZHA ADDL.A5 MUHAMMED MAHDOOM, S/O.LATE SAYED MUHAMMED MOULAVI PALLIVADAKKETHIL, ATHIKKATHIKULANGARA PO NOORANAD, MAVELIKKARA, ALAPPUZHA ADDL.A6 KADEEJA PS, D/O.LATE SAYED MUHAMMED MOULAVI PALLIVADAKKETHIL, ATHIKKATTUKULANGARA PO NOORANAD, MAVELIKKARA, ALAPPUZHA ADDL.A7 SAJITHA S, D/O.LATE SAYED MUHAMMED MOULAVI PALLIVADAKKETHIL ATHIKKATTUKULANGARA PO NOORANAD, MAVELIKKARA, ALAPPUZHA (LEGAL HEIRS OF DECEASED A2 ARE IMPLEADED AS ADDL. APPELLANTS 4 TO 7 VIDE ORDER DATED 18.10.2010 ON IA 1824/10) AS 955/98 -2- ADDL.A8 SUHRA BEEVI, D/O.LATE HADEEJA UMMA KALLOORAYYATHU VEEDU, THAMARAKULAM PO MAVELIKKARA, ALAPPUZHA ADDL.A9 UMMA SALMA, D/O.LATE HADEEJA UMMA PALLIVADAKKETHIL, ATHIKKATTUKULANGARA PO NOORANAD, MAVELIKKARA, ALAPPUZHA ADDL.A10 IYSHA BEEVI, D/O.LATE HADEEJA UMMA PALLIVADAKKETHIL, ATHIKKATTUKULANGARA PO NOORANAD, MAVELIKKARA, ALAPPUZHA (LEGAL HEIRS OF DECEASED A3 ARE IMPLEADED AS ADDL. APPELLANTS 8 TO 10 VIDE ORDER DATED 18.10.2010 ON IA NO.2824/10) BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.JESWIN P.VARGHESE SMT.JASMINE.V.H. RESPONDENTS/DEFENDANTS 1 TO 3: ---------------------------------------------------- 1. HIDAYATHUL ISLAM SAMAJAM, ATHIKATTUKULANGARA NOORANAD, REP BY ITS PRESIDENT M.A. SALAM MEENATHERIL, ATHIKATTUKULANGARA, NOORANAD 2. KERALA STATE REP BY DISTRICT COLLECTOR ALAPPUZHA 3. SHEIK MYDEEN RAWTHER, NIZAR MANZIL PRESIDENT, HIDAYATHUL ISLAM SAMAJAM JAMA ATHU PRESIDENT, ATHIKATTUKULANGARA ADV. SRI.K.SASIKUMAR GOVERNMENT PLEADER SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R1 & R3 SRI.K.SASIKUMAR FOR R1 & R3 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.955 of 1998 ------------------------------------- Dated this the 11th day of August 2011 Judgment The plaintiffs in OS No.487/95 who were non- suited by the trial court, are the appellants. During the pendency f the appeal, the second and third appellants passed away and their legal heirs have been brought on the party array as additional appellants 4 to 10. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The third plaintiff is the mother of plaintiffs 1 and 2. The first defendant is an organisation of Athikattukulangara Jama-ath which has a Madrassa and also other institutions. According to the plaintiffs, the first plaintiff acquired plaint Item No.1 as per a gift deed said to have been executed by the third plaintiff. As regards the plaint Item NO2, he traced his title to the partition deed of the year 1995 which is marked as Ext.A8. By virtue of the AS 955/98 2 said partition deed, he claims absolute ownership, right and title in respect of item Nos.1 and 2 of the plaint. The second plaintiff is said to have obtained plaint item NO.3 as per Ext.A6 and item No.4 as per Ext.A8 partition deed. Item No.5 is said to belong to the third plaintiff, who obtained it by way of assignment. According to the plaintiffs, the predecessor in interest of the plaintiffs, namely Mahamdoom Labba had possession of 1 acre 52 cents of land in his possession on kuthakappattom lease. Later, he obtained assignment of the said land from the Government as per order in LA No.180/67. On the death of Mahamdoom Labba in 1978, his heirs came into possession and enjoyment of the property. The plaintiffs would say that a makbara and shed are situate in Item No.2 of the property and that the said makbara is maintained as a sacred place where prayers are offered by the public also. The plaintiffs claim exclusive right over the makbara and shed. The allegation in the plaint is that on 05.11.1995, the plaintiffs came to know that the members AS 955/98 3 belonging to the first defendant organisation are trying to take possession of the makbara and shed. That necessitated the filing of OS No.291/88 before the Munsiff's Court, Mavelikkara. That suit was not pursued as the defendants withdrew from their attempt and accordingly, the suit was dismissed for default. However, it is alleged that by virtue of the assignment said to have been obtained by them in LA No.291/88, the first defendant took forcible possession of the Makbara and the shed which was situate in the property belonging to the plaintiffs for which the first defendant organisation had no manner of right. In the light of the fact that they have taken forcible possession, the suit became necessary and they prayed for recovery of the suit properties with mesne profits. 3. The first defendant resisted the suit by pointing out that the allegations in the plaint are contrary to facts and are untrue. In the earlier suit, the plaintiffs had filed an interlocutory application for injunction and an order was granted in favour of the plaintiffs. A CMA was filed AS 955/98 4 against the said order which was allowed and the I.A. was dismissed holding that the Jama-ath was in possession of the Makhbara. Later on, the suit was not proceeded with and it was dismissed for default. The appeal filed did not meet with success. So, it is contended that the present suit is barred by res judicata. It is also contended on behalf of the defendants that the Makhbara and Thykavu are comprised in Survey No.287/7 in old Survey No.240/1A of Palamel village. The properties comprised in Survey No.287/7 never belonged to the family of the plaintiffs and it was always in the possession of the Government. On application made by the first defendant, 36.750 cents was assigned in their favour and they are in possession and enjoyment of the same. Makhbara is a place where the dead body of a saint is buried and Thykavu is a place wherein prayers are conducted. The present suit is identical to the earlier suit and the claim made is also identical. The first defendant contended that the plaintiffs have no manner of right over item No.2 as claimed in the AS 955/98 5 plaint. On the above contentions, they prayed for dismissal of the suit. 4. It is seen that the plaint was amended and an additional written statement was filed to the amended plaint. The second defendant filed a separate written statement in which it is conceded that the property belonging to the first plaintiff is included in RS No.287/16 of Block No.20 of Palamel village. Item No.2 of the plaint schedule property could not be identified as the partition deed was not produced for verification. Various other contentions were also taken by him which are not very relevant for the present purpose. 5. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 5 and documents marked as Exts.A1 to A25 from the side of the plaintiffs. The defendants had Dws 1 to 4 examined and Exts.B1 to B44(e) marked. Exts.C1 to C1(c) commissioner's reports and plans were also marked. AS 955/98 6 6. The trial court, on an appreciation of the evidence in the case, found that - (1)the present suit is an abuse of the process of the court. (2)the present suit is barred by Order IX Rule 9 CPC (3)the present suit is barred by limitation. (4)the makhbara, shed and item No.2 property are located in RS No.287/16 and 17. (5)the right of the plaintiffs over item no.2 is lost by adverse possession and limitation. On the above findings, the suit was dismissed. The said judgment and decree are assailed in this appeal. 7. The learned counsel for the appellants contended that the lower court has not raised proper issues for consideration and the findings are unsustainable both on facts and in law. The lower court has held that the present suit is barred by Order IX Rule 9 CPC. The learned counsel pointed out that the earlier suit was one for AS 955/98 7 injunction and the present suit is filed entirely on a different cause of action and the reliefs sought for are also different. These facts have not been noticed by the court below. The learned counsel went on to point out that it was found by the trial court that the assignment in favour of the first defendant does not take in the Makhbara and the Thykavu and therefore, the defendants have no manner of right by virtue of the assignment. Having found so, the learned counsel pointed out that the lower court was not justified in coming to the conclusion that the right, if at all the plaintiffs had any, has been lost by adverse possession and limitation. The learned counsel went on to contend that this is a case where the proper issues have not been raised and irrelevant aspects have been taken into consideration. The learned counsel also drew attention of this court to the fact that a major portion of the judgment contains the discussion regarding possession, which is unnecessary in the context of the case. According to the learned counsel, relevant aspects have been omitted to be noticed by the AS 955/98 8 court below and that has resulted in a wrong decree being passed. 8. Per contra, the learned counsel for the respondents pointed out that the suit one being based on title, the burden was on the plaintiffs to show that he had title over the property and also the burden to get the property identified. Merely because it is found that the document of title of the defendants does not take in the suit property or that the defendants have not been able to prove their right to the suit property, it does not automatically result in a decree in favour of the plaintiffs. The learned counsel took this court through the various documents produced in the case and pointed out that the documents produced are open to doubt and their veracity have to be determined by the court. The learned counsel also pointed out that unless and until the plaintiffs show that item No.2 in which the Makhbara and Thykavu are situate is a portion of the 1.55 acres obtained by the predecessor-in-interest of the plaintiffs and get it properly identified, they cannot AS 955/98 9 succeed. That has not been done in the case on hand and even though some of the findings of the trial court may not be supportable, the fact remains that the plaintiffs have not chosen to establish their title to the suit property or to have the property identified. Therefore, it is pointed out that no interference is called for with the judgment and decree of the court below. 9. I am afraid, I am unable to agree with the above contentions raised by the learned counsel for the respondents. True, as rightly pointed out by the learned counsel for the respondents, the burden is on the plaintiffs to establish their title to the suit property. It needs to be noticed that there were no issues as such regarding the title and identification of the property. 10. Before going further, one aspect may be noticed. The lower court was clearly in error in coming to the conclusion that the present suit is an abuse of the process of the court as also that the suit is barred by Order IX Rule 9 CPC. In fact, the learned counsel for the AS 955/98 10 respondents did not support the lower court judgment on these grounds at all. The earlier suit was one for injunction and it was dismissed for default. The present suit is based on entirely a different cause of action and the reliefs sought are much different from earlier suit. In the earlier suit, DW1 was shown in his personal capacity. One fails to understand how it can be said that the present suit is barred. Therefore, the findings of the court below in this regard have necessarily to be vacated. 11. The discussion regarding possession was also quite uncalled for in the light of f the pleadings in the case. The lower court ought to have found that the suit is for recovery of possession on the allegation that the first defendant trespassed into plaint item 2 property. The issue that needs to be considered was whether the plaintiffs had been successful in proving their title over plaint item No.2 and also whether the property has been identified or not. Once it is shown that the plaintiffs have got title to the property in which the Makhbara and Thykavu are situate, AS 955/98 11 then, of course the conclusion arrived at that the assignment in favour of the defendants may not be valid, may be justified. But the initial burden lies on the plaintiffs. It is not sufficient for the plaintiffs to show that the assignment document in favour of the defendants does not take in the Makhbara and Thykavu. They have necessarily to show that their document of title takes in the Makhbara and Thykavu. 12. The above aspects have been omitted to be noticed by the lower court. It is also noticed that the defendants had filed objections to the commissioner's report which has also not been properly considered. The learned counsel appearing for the respondents referred to the various sketches produced before court. It has to be said that the above vital aspects have not been raised or considered and in fact, this court is constrained to say that irrelevant aspects have been taken into consideration by the courts below. AS 955/98 12 13. It is for the plaintiffs to establish their title to the suit properties and also to show that the Makhbara and Thykavu are included in the property which belonged to them either by way of assignment or by way of any partition deed as the case may be. It may not be sufficient for the plaintiffs to show that the property assigned to the defendants does not take in the Makhbara and Thykavu. As rightly pointed out by the learned counsel for the respondents, the plaintiffs cannot take the aid of the weakness of the defence case. 14. The result is that the judgment and decree of the lower court are clearly unsustainable in law and it has become necessary to remand the matter for consideration after raising proper issues in the case and after affording opportunity to either side to adduce further evidence if they so choose. In the result, this appeal is allowed. The impugned judgment and decree are set aside and the matter is remanded to the lower court for considering the AS 955/98 13 suit afresh in accordance with law and in the light of what has been stated above. The parties shall appear before the court below on 29.09.2011. The lower court may 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. Forward a copy of this judgment to the court below immediately. P.Bhavadasan, Judge sta AS 955/98 14