IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 AS.No. 173 of 2000(E) & C.O.NO.36/2010 ---------------------------------------------------------- OS.588/1993 of SUB COURT, KATTAPPANA .................... APPELLANT/PLAINTIFF: ------------------------------------ M.M.J. PLANTATIONS- A PARTNERSHIP FIRM HAVING ITS OFFICE AT MANARKATTU BUILDINGS, PALAI, REP. BY POWER OF ATTORNEY HOLDER C.J. THOMAS, S/O.C.L. JOSEPH, AGED 58, MANAGER, BONAMI TEA GARDEN, FAIRFIELD P.O., ELAPPARA VILLAGE. BY ADV. SRI.K. JAGADISACHANDRAN NAIR. RESPONDENTS/DEFENDANTS: ---------------------------------------------- 1. MOSSA, AGED 66 YEARS, EX- SUPERVISOR, RESIDING AT BUILDING NO.V/34, NO.1 DIVISION, BONAMI TEA GARDEN, FAIR FIELD P.O., ELAPPARA VILLAGE. 2. CHANDANAM, W/O.MOSSA, AGED 61 YEARS, RESIDING AT BUILDING NO.V/33B, NO.1 DIVISION, BONAMI TEA GARDEN, FAIRFIELD P.O., ELAPPARA VILLAGE. 3. RANI, D/O.MOSSA, AGED ABOUT 28 YEARS, RESIDING AT BUILDING NO.V/34 B, NO.1 DIVISION, BONAMI TEA GARDEN, FAIRFIELD P.O., ELAPPARA VILLAGE. 4. RAJAN, S/O.SATHIANESAN, AGED ABOUT 29 YEARS, RESIDING AT BUILDING NO.V/34 B, NO.1 DIVISION, BONAMI TEA GARDEN, FAIRFIELD P.O., ELAPPARA VILLAGE. AS.No. 173 of 2000(E) 5. SATHIANESAN, RESIDING AT BUILDING NO.V/47, NO.1 DIVISION, BONAMI TEA GARDEN, FAIRFIELD P.O., ELAPPARA VILLAGE. 6. ELSY RANI, W/O.SATHIANESAN, RESIDING AT BUILDING NO.V/47, NO.1 DIVISION, BONAMI TEA GARDEN, FAIRFIELD P.O., ELAPPARA VILLAGE. 7. JOSE, S/O.SATHIANESAN, AGED ABOUT 25 YEARS, RESIDING AT BUILDING NO.V/47, NO.1 DIVISION, BONAMI TEA GARDEN, FAIRFIELD P.O., ELAPPARA VILLAGE. 8. GLORY (MINOR), D/O.SATHIANESAN, RESIDING AT BUILDING NO.V/47, NO.1 DIVISION, BONAMI TEA GARDEN, FAIRFIELD P.O., ELAPPARA VILLAGE. (REP. BY HER FATHER AND NATURAL GUARDIAN 5TH RESPONDENT). BY ADV. SRI.P. CHANDRASEKHARA PILLAI. ADV. SRI.C.S.MANU. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. ........................................... A.S.No.173 OF 2000 & C.O.No.36 OF 2010 ............................................. Dated this the 20th day of May, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree passed by the Subordinate Judge, Kattapana in O.S.No.588/1993. The suit is one for declaration of title and recovery of possession of the plaint schedule property with mesne profits. There are three schedules to the property - A,B and C. A schedule as amended is comprised in Sy.No.10/2 (10/4-2 having an extent of 4.5 cents of land), B schedule also comprised of in Sy.No.10/2 (10/4-2 having an extent of 5.250 cents) and C schedule comprised in Sy.No.10/1 having an extent of 1.50 cents. These properties are situated in Elappara village of Peerumade taluk. It is the case of the plaintiff that the defendants have no manner of right to remain in the property and therefore have sought a recovery of the possession. According to them, that property is included in a vast area of 983.65 acres and the defendants were only permitted to occupy the same during the period of their employment and thereafter they did : 2 : A.S.No.173 OF 2000 & C.O.No.36 OF 2010 not have any legal right to continue there. On the other hand, the defendants refuted the title of the plaintiff and also contended that the plaintiff is not entitled to recovery of possession. Unfortunately at the trial stage, the defendants did not contest the case. On perusal of the documents available, the learned Subordinate judge granted a decree with respect to C schedule and refused to grant a decree with respect to A and B schedule properties. Dissatisfied with the rejection of recovery of A and B schedule properties the plaintiff has come up in appeal and aggrieved by the order of recovery of C schedule property, defendants 5 to 9 had come forward with the cross objection. 2. There cannot be any dispute that in a suit for declaration of title or recovery of possession on the strength of title the plaintiff has to establish his title to get possession of the property. The title deed by the plaintiff is Ext.A2. It is a document covering a very large extent of : 3 : A.S.No.173 OF 2000 & C.O.No.36 OF 2010 land and the references therein which are relevant for this case are with reference to Sy.No.10/1 and Sy.No.10/4-2. The trial court on receipt of the report from the Commissioner, who reported that A and B schedule properties are comprised in Sy. No.10/2, held that the plaintiff does not have title over Sy. No.10/2 and therefore rejected their claim. So far as C schedule is concerned, he finds it part and parcel of Sy.No.10/1 and grants a decree. Now as the plaint stood amended, there is Sy.No.10/2 (Sy.No.10/4-2). 3. I find from Ext.A1 that the plaintiff has got title over some extent of property in Sy.No.10/4-2. Further it has to be held that a property cannot be found out only on the basis of a survey number. When there is a doubt, it has been well settled that if boundaries of the properties are available, it will prevail. This Court has observed that in such cases, the court has to adopt the most infallible method to arrive at a decision. Now, after the filing of the : 4 : A.S.No.173 OF 2000 & C.O.No.36 OF 2010 appeal, the plaintiff has produced some document and which is in the form of a Thandaper register. There the Sy.No.10/2 is also seen. I am not prepared to state anything about the admissibility or acceptability of the same, but at the same time, it is a large extent of property of 983.65 acres and the property has to be properly found out to arrive at a decision regarding the question whether the plaint schedule forms that part of the larger extent. So without expressing anything on the merit, I am inclined to grant an opportunity to the plaintiff to prove to the satisfaction of the court regarding its title over the plaint schedule property So far as C schedule property is concerned, the court has come to the conclusion on the basis that it forms part and parcel of Sy.No.10/1 and therefore the plaintiff is entitled to get recovery. 4. Learned counsel for the cross objector would contend that unfortunately the client did not prosecute the matter before the court below and the court did not : 5 : A.S.No.173 OF 2000 & C.O.No.36 OF 2010 also get an opportunity to consider the adverse possession. Therefore as the matter has to go back, let the right with respect to C schedule property also be decided in the presence of those defects. 5. Therefore the appeal is allowed and the judgment and decree of the lower court are set aside and the matter is remitted back to the trial court with a direction to consider the entire matter afresh after affording equal opportunities to both sides to put forward their rival contentions as well as by permitting them to produce both documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before the court below on 1.7.2010. Thus, the appeal as well as the cross objection is allowed. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.No.173 OF 2000 & C.O.No.36 OF 2010 M.N. KRISHNAN, J. ........................................ A.S.No.173 OF 2000 & C.O.No.36 OF 2010 ........................................ 20th day of May, 2010. J U D G M E N T : 7 : A.S.No.173 OF 2000 & C.O.No.36 OF 2010