IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 RSA.No. 1162 of 2005() ---------------------- AS.194/1996 of SUB COURT, TIRUR OS.170/1987 of MUNSIFF COURT, TIRUR .................... APPELLANT/APPELLANT/IST DEFENDANT: -------------------------------------------- POTTAMMAL VAKAYIL ABDUL KHADER @ KUNJAVU, S/O.SAIDALI, KUTTIPPURAM AMSOM DESOM, P.O.KUTTIPPURAM(MALAPPURAM DISTRICT0. BY ADV. SRI.K.RAMACHANDRAN SRI.K.MOHAMMED FAISAL NAHA RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANT 2 TO 5: -------------------------------------------------------- 1. KORATH ILLATH VALAPPIL IYYATHUMMA, D/O.ENUDHEEN HAJI AND W/O.POTTAMMAL VAKAYIL MANMMALI, KUTTIPPURAM AMSOM AND DESOM, P.O.KUTTIPPURAM MALAPPURAM DISTRICT. 2. KUNHALITTY, S/O.ENUDHEEN HAJI, DO. DO. 3. MOHAMMEDKUTTY, DO. DO. 4. KAREEM DO. DO. 5. VALAPPIL KUNHEEMA UMMA, D/O.VALAPPIL KUNHAHAMMEDKUTTY HAJI AND W/O.POTTAMMAL VAKAYIL MAMMALI, DO. DO. 6. IYYACHAKUTTY UMMA, D/O. DO. AND W/O.K.KUNHAYA, DO. DO. 7. MAOHAMMEDKUTTY, S/O.POTTAMMAL VAKAYIL MAMMALI, MAMMALI, KAZHUTHALLOOR, KUTTIPPURAM, (MALAPPURAM DISTRICT). 8. LATHEEF @ SAIDALIKUTTY, S/O.POTTAMMAL VAKAYIL MAMMALI, KUTTIPPURAM, MALAPPURAM DISTRICT. ADV. SRI.P.S.SREEDHARAN PILLAI FOR R1,2&4 SMT.C.G.PREETHA FOR R1,2&4 SRI.M.PRAVEESH FOR R1,2&4 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No. 1162 of 2005 E --------------------------------------- Dated this 03rd day of November, 2009 JUDGMENT The second appeal arises from judgment and decree of learned Sub Judge, Tirur in A.S.No.194 of 1996 confirming judgment and decree of learned Munsiff, Tirur in O.S.No.170 of 1987. Parties are referred as plaintiffs and defendants as in the trial court for convenience. 2. Plaintiffs sued the defendants for recovery of possession of plaint schedule item Nos.1 and 2 on the strength of title claimed by them. They claimed that the property belonged in jenm to pottammal Vakayil kunhali and on his death it devolved upon his children including Mammali. While so, they effected partition of the properties as per Ext.A1, partition deed dated 12-06-1963 as per which schedule properties were allotted to the share of Mammali as item No.10 of the document. On the death of Mammali in the year 1978, the schedule properties devolved on the plaintiffs who are his legal heirs. According to the plaintiffs, there happened to be a mistake in the survey number of the properties in the document and the correct survey number is as given in the plaint. Defendant Nos.1 to 3 and 5 trespassed into the properties and hence the suit for recovery of possession. Defendant No.1 contended that description of the properties is not correct and R.S.A.No.1162 of 2005 2 that properties are to be identifed with the help of an Advocate Commissioner. He denied the derivation of title and possession claimed by plaintiffs. Further contention is that plaint schedule item No.1 was taken on lease by him and his brother from the husband of plaintiff No.1 on an agreement to pay rent of one para of paddy as pattam. Defendant No.1 and his brother Mammali has got fixity of tenure so far as item No.1 is concerned and that property cannot be recovered from them. So far as item No.2 is concerned it is pleaded that himself and his brother purchased the said item from Kunjali for consideration of Rs.50/- and thus himself and brother are in possession of the said item. After the sale, Kunjali had no right over the suit property. Further contention raised is that title of plaintiffs over item No.2 is lost by adverse possession and limitation. Learned Munsiff framed issue regarding claim of tenancy and referred the matter to the Land Tribunal which answered the issue against defendant No.1. After the reference was answered, documents marked in Land Tribunal were marked by learned Munsiff as exhibits but no oral evidence was adduced by the parties. Learned Munsiff accepting the finding of the Land Tribunal held that defendant No.1 has no fixity of tenure over item No.1. Learned Munsiff did not enter into any finding as to the plea of oral sale in favour of defendant No.1 and his brother concerning item No.2. It was held that in the light of claim of defendant No.1 regarding tenancy, plea of adverse possession was not sustainable. R.S.A.No.1162 of 2005 3 Accordingly decree for recovery of possession was granted. Defendant No.1 took up the matter in appeal. First appellate court concurred with the finding of the Land Tribunal regarding tenancy. It also found that the plea of oral sale in respect of item No.2 is not established. Finding of Trial Court on other issues were confirmed and consequently appeal was dismissed. Hence the second appeal at the instance of defendant No.1. The following substantial questions of law are framed for a decision. (a) Whether the Courts below were justified in allowing recovery of possession without the plaint schedule items being properly identified? (b) Did not the Courts below err in placing burden of proof on the defendants who are admittedly in possession? (c) Did not learned Sub Judge err in not independently analyzing the evidence before the Land Tribunal? (d) Were the Courts below justified in rejecting the plea of adverse possession and limitation? (e) Is the finding on mesne profits including the quantum justified? 3. It is contended by learned counsel for appellant/defendant No.1 that no finding has been entered by the trial court regarding oral sale in respect of item No.2. Though, identity of suit properties was vehemently contested by defendant No.1, no issue regarding that was framed by learned Munsiff nor, answered by any of the courts below. R.S.A.No.1162 of 2005 4 Learned counsel has taken me through the report and plan prepared by the Advocate Commissioner while the matter was pending consideration before the Land Tribunal on the issue of tenancy. According to the learned counsel, the report and plan (marked Exts.C1 and C2 in the trial court) would not in any way help plaintiffs to prove identity of the property. Learned counsel for respondents/plaintiffs contend that evidence of DW1 along with Exts.C1 and C2 would prove identity of the property. 4. So far as plea of tenancy is concerned, Land Tribunal found that defendant No.1 did not produce any acceptable evidence to prove the same. That has been confirmed by first appellate court also. On going through the judgment of first appellate court and also the order of Land Tribunal, I find little reason to interfere with the finding regarding tenancy pleaded by defendant No.1. 5. So far as the plea of oral sale concerning item No.2 is concerned, it is true that learned Munsiff has not entered any finding regarding that. But fact remained that defendant No.1 has not given evidence in the trial court to prove the alleged oral sale. First appellate court has referred to that contention and found that there is no evidence to show that there was any oral sale of item No.1 to defendant No.1 and his brother as claimed by him. That finding is entered in the absence of any evidence adduced by defendant No.1 on whom the burden of proof lay. No interference is called for in that R.S.A.No.1162 of 2005 5 matter also. 6. So far as the plea of adverse possession is concerned, learned Munsiff found that having set up a plea of tenancy defendant No.1 cannot turn round and claim adverse possession. The plea of tenancy is in respect of item No.1 and so far as item No.2 is concerned, plea is one of oral sale. Since the sale consideration stated by defendant No.1 is only Rs.50/- and no registered document is necessary to convey title, an oral sale cannot be said to be invalid so that the issue of adverse possession could be said to arise. It is also to be noted that defendant No.1 was not able to prove the oral sale. Hence the question of defendant No.1 holding the property regarding which oral sale was set up adverse to the title of plaintiffs do not arise. Therefore, there is no reason to interfere with the finding of Courts below regarding adverse possession as well. 6. One substantial question of law framed is regarding the failure to enter a finding on the dispute regarding identity of suit property. There, it has to be seen that in spite of defendant No.1 raising a specific contention that the properties scheduled in the plaint are not identifiable and that a Commissioner has to be deputed for the purpose, learned Munsiff has not framed an issue regarding that. Nor has any of the Court below entered a finding as to the identity of the property which is disputed by defendant No.1. Counsel on both sides referred me to the evidence of PW1 and DW1 recorded in the Land R.S.A.No.1162 of 2005 6 Tribunal to buttress their respective contentions regarding identification of the suit properties but, I am unable to refer to the oral evidence recorded in the Land Tribunal to decide any issue other than issue regarding tenancy for the reason that the oral evidence recorded in the Land Tribunal cannot be used in the Civil Court to decide identification. That oral evidence can be used only for the purpose of deciding the correctness of the finding of Land Tribunal concerning tenancy and allied matters. For the purpose of identification of the properties which is the function of Civil Court, oral evidence recorded by Land Tribunal cannot be looked into (see for Kolappa Pillai Vs. Vadivulekshmi (2008 (2) ILR Kerala 99). It is true that Exts.C1 and C2 and other documents produced before the Land Tribunal are marked in the Court of learned Munsiff as provided under Order 13, Rule 10 of Code of Civil Procedure. Therefore the documentary evidence marked in the Court of learned Munsiff can be taken into consideration for deciding the issue regarding identification. In Ext.A1, item No.10 is the property which the plaintiffs say is the plaint schedule item Nos.1 and 2. In item No.10 of Ext.A1 and plaint schedule as originally stated, property is described as bounded by river on the south, Kasavingal njattuketti on the east and west and road on the north. The extent of property is given as 17x15½ (for 6 feet koles) in which case extent must be 21.95 cents but in the plaint schedule, item No.1 is stated as 16 cents and item No.2 as 12 cents. The R.S.A.No.1162 of 2005 7 boundaries reported by Advocate Commissioner in Ext.C1 do not tally with the boundaries given in item No.10 of Ext.A1 or the plaint schedule as originally given. Obviously, on account of that, after the finding of Land Tribunal was received in the Court of Learned Munsiff plaint schedule was amended to make the boundary description in tune with description given by the Advocate Commissioner in Ext.C1. 7. So far as Ext.C2 is concerned, it is not clear from Ext.C1 what all records have been made use of by the Advocate Commissioner to measure the properties. Advocate Commissioner only said that “records” are made use for the purpose of measurement but it is not clear what all records are made use of. Apart that property comprised in R.S.Nos. 2/2 and 2/3 have been identified by the Advocate Commissioner as item Nos.1 and 2, there is no data before Court to find out the actual extent of property thus shown by Advocate Commissioner in Ext.C2. It is relevant to note that in item No.10 of Ext.A1, the southern boundary is given as river while the Advocate Commissioner has shown river as western boundary. In the above situation and particularly when the plaintiffs are seeking recovery of possession on the strength of title a properly measured plan is essential. That is because title cannot be decided on surmises and conjunctures. The mere fact that defendant No.1 has referred to the properties in the written statement as item Nos.1 and 2 does not absolve the plaintiffs from proving identification of the property. Nor does it mean that reference is to item No.1 and 2 as identified by the Commissioner in Exts.C1 and C2. R.S.A.No.1162 of 2005 8 1. 8. So far as finding of learned Munsiff regarding mesne profits payable by appellant/defendant No.1 is concerned, that finding rest on nil evidence. I stated that apart from marking documents in Court of learned Munsiff no oral evidence was recorded. None of the documents marked by learned Munsiff is useful to decide the issue regarding mesne profits if any payable by the appellant/defendant No.1. Therefore that finding also is unsustainable as it rest on no evidence. When the finding of the courts below rest on no evidence that involves a substantial question of law. In the absence of appropriate evidence finding of trial court regarding mesne profits payable by appellant/defendant No.1 cannot be sustained. 9. I found that there was no proper identification of suit properties. But, for that reason plaintiffs cannot be non suited. The proper course is to sent back the case to trial court for proper identification of suit property and to pass fresh judgment. I make it clear that it will be open to the parties to amend their pleadings to the extent it concerned identification of the suit properties and mesne profits payable if such a course is found necessary. It will also be open to the parties to adduce evidence regarding identification of the suit properties and mesne profits if any payable by appellant/defendant No.1. It will be open to the plaintiffs to request the learned Munsiff to depute an Advocate Commissioner, if necessary the same Commissioner to identify the suit properties. I make it clear that I am R.S.A.No.1162 of 2005 9 not interfering with the finding regarding tenancy, oral sale and adverse possession set up by defendant No.1 which have been concluded by the decisions of the Courts below. Resultantly, judgment and decree under challenge are set aside to the extent stated above and the case is remitted to the court of learned Munsiff, Tirur for the purpose of proper identification of the suit properties after framing an issue regarding the same and also to enter appropriate finding regarding mesne profits if any payable by appellant/defendant No.1. Parties shall appear in the trial court on 15- 12-2009. Trial court is directed to expedite trial and disposal of the case. Registry shall sent back the records to that Court immediately. THOMAS P JOSEPH, JUDGE Sbna/