IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 SA.No. 974 of 1996() ------------------------------- AS.91/1994 of SUB COURT, PALA OS.114/1986 of MUNSIFF COURT, PALA .................... APPELLANT(S): APPELLANT/PLAINTIFF --------------------------------------------------------- DHANANJAYA KAIMAL S/O. VASUDEVAN KUNJI, PUNNATHANATHU, ANDOOR KARA, ELAKKADU VILLAGE, MEENACHIL TALUK. BY ADVS. SRI.S.ANANTHASUBRAMANIAN SRI.N.K.KARNIS SRI.PHILIP M.VARUGHESE SRI.S.SHYAM RESPONDENT(S): RESPONDENT/ DEFENDANT ------------------------------------------------------------------- *1. MATHAI S/O. MATHAI, VADAKKEPLACHERIL, PADINJATTINKARA MURI, PULIYANNOOR VILLAGE, MEENACIL TALUK. (DIED) 2. VARKEY, S/O. MATHAI, DO. DO. *ADDL. R3 TO R7 IMPLEADED. 3. THRESSIAMMA MATHEW, W/O. MATHEW, VADACKEPLACHERIL HOUSE, PALACKATTUMALA P.O., VIA, MARANGATTUPILLY, KOTTAYAM DISTRICT PIN 686635. 4. BIJU MATHEW, S/O. THE 3RD RESPONDENT OF VADACKEPLACHERIL HOUSE OF DO. DO. 5. BINDU BINU, S/O. THE 3RD RESPONDENT, VALIYAPARAMBIL HOUSE, CHENGALAM EAST, KOTTAYAM DISTRICT PIN 686 585. SA. NO.974/1996 6. BIBIN MATHEW, W/O. THE 3RD RESPONDENT OF VADACKEPLACHERIL HOUSE, PALACKATHUMALA P.O, VIA, MARANGATTUPILLY, KOTTAYAM DISTRICT, PIN 686 635. 7. BITTY MATHEW, S/O. THE 3RD RESPONDENT OF VADACKEPLACHERIL HOUSE, DO. DO. *ADDL. RESPONDENTS 3 TO 7 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED IST RESPONDENT AS PER ORDER DTD. 9.9.10 IN IA. 257/2010. R1 & R2 BY ADVS.SRI.C.J.JOY, SRI.SUNIL CYRIAC. R3 , R5 BY SRI.SUNIL CYRIAC THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NOS.2162/96, IA. 1951/10 & 256 /2010 IN SA. 974/1996 DISMISSED 15/10/2010 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ------------------------------------- SA No.974 of 1996 ------------------------------------- Dated 15th October 2010 Judgment The plaintiff, whose suit and appeal were dismissed by the courts below, is the appellant. 2. The defendants, on the basis of Ext.B1 and other documents, laid claim to a water channel and a mud wall through their property. The plaintiff claimed that the same belonged to him, while the defendants said that it is otherwise. 3. Before the trial court, PWs 1 to 4 were examined and Ext.A1 was marked from the side of the plaintiff. The defendants examined DWs 1 to 3 and had Exts.B1 to B5 marked. Exts.C1 to C2(a) are the commissioner's report and plan. 4. On an appreciation of the evidence in the case, the trial court found that the plan and report submitted by the Commissioner cannot be relied on since SA 974/96 2 the property of the defendant had not been measured. Referring to the evidence adduced in the case, the trial court went on to hold that the plaintiffs are not entitled to the reliefs sought for in the suit and accordingly dismissed the suit. The plaintiff preferred an appeal, in which almost the same fate followed. Hence the second appeal. 5. In this second appeal, the following questions of law are raised : (i) Have not the courts below committed a grave error of law in not considering the question of title to the suit property when the relief prayed for takes in declaration of title ? (ii) When the dispute is as to the ownership and possession of a narrow strip of land along the boundary separating the properties of the rival claimants, is it legal to dismiss the suit discarding the commission report and plan without giving an opportunity to take out fresh commission ? SA 974/96 3 (iii) Is not the appellate Court legally bound to consider the specific grounds taken in appeal and enter independent findings ?” The learned counsel for the appellant contended that if as a matter of fact, there was any infirmity in the Commissioner's report and plan, either the courts below ought to have called for a fresh report or should have given an opportunity to the plaintiff to get a proper plan and report. Merely because the survey plan was not available at the behest of the defendant, that could not have been taken as a tool to non-suit the plaintiff. It is also pointed out that in cases, of the present nature, where the suit is for declaration of title and possession, oral evidence is not of much significance. 6. As already noticed, the subject matter of this appeal is the mud wall and the water channel. It is stated in the Commissioner's report that a good portion of the water channel and the mud wall was taken in by the document of title of the plaintiff, i.e., Ext.A1. A small SA 974/96 4 portion belongs to the defendant also. Both the courts below discarded the commissioner's report on the ground that the commissioner had not measured the defendant's property. 7. Considerable evidence seems to have been adduced in the form of oral evidence of the parties, which seems to be not of much significance, in the nature of the issues involved in this appeal. It cannot be disputed that the essential aspect is the identification of the respective properties. It is true that the burden is normally on the plaintiff to establish the title. He had taken out a commission and obtained a report and plan. It was not his look out to see that the defendant's property also gets measured. He had taken all necessary steps which were supposed to be taken by him and the courts below have discarded the commissioner's report on the ground that the defendant had not summoned the survey sketch etc. and they were not made available. SA 974/96 5 8. One fails to understand the approach made by the courts below. If as a matter of fact, it was found that the Commissioner's report and plan were not helpful, as rightly contended by the learned counsel for the appellant, the plaintiff ought to have been given an opportunity to get an appropriate sketch and report prepared or the courts ought to have asked to get the property identified. Instead, relying on the oral evidence, the plaintiff was non-suited. The said approach cannot be countenanced. It seems that considerable emphasis has been laid on the oral evidence. It is true that the plaintiff's evidence was not very satisfactory and some of the statements made by him indicated as if he was not sure about his property. But, one cannot omit to note that the commissioner's report was in his favour to a great extent. It is also significant to notice that the properties lie at different levels. Whether there is a natural boundary etc. are all matters which ought to have been considered by the courts below. Without giving an opportunity to the plaintiff to get the property identified and SA 974/96 6 a survey sketch prepared, it was not proper on the part of the courts below to have non-suited him. On this sole ground alone, the appellant has to succeed. 9. Accordingly, this appeal is allowed. The judgment and decree of the courts below are set aside and the trial Court shall consider and dispose of the suit afresh in accordance with law and in the light of the observations contained herein above. The parties shall appear before the court below on 23.11.2010. The trial Court shall make every endeavour to dispose of the suit as expeditiously as possible. The parties will be free to adduce further evidence, if they so choose. There will be no order as to costs. P.BHAVADASAN, JUDGE sta SA 974/96 7 SA 974/96 8