IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 SA.NO. 710 OF 1995() -------------------- AS.22/1993 OF ADDL.SUB COURT, ALAPPUZHA OS.406/1985 OF ADDL.MUNSIFF COURT,CHERTHALA .................... APPELLANT(S) – RESPONDENT - PLAINTIFF: ----------------------------------------------------- KUNJAN THEVARKUTTY, PANDARAPATTATHIL VALAMANGALAM SOUTH MURI THURAVOOR SOUTH VILLAGE, CHERTHALA. BY ADV. SRI.S.SANTHOSH KUMAR RESPONDENT(S) – APPELLANTS - DEFENDANTS: ------------------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA. 2. TALUK TAHSILDAR, CHERTHALA. 3. THE VILLAGE OFFICER, THURAVOOR SOUTH VILLAGE, CHERTHALA. BY GOVERNMENT PLEADER SHRI L.G. SURESH BABU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A.. No.710 of 1995 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9th day of September, 2009 J U D G M E N T --------------------- On the strength of Ext.A1, Patta dated 4.7.1984 in respect of 50 cents of land in Sy.No.4/1A of Thuravoor south Village, appellant sued respondents for a decree for prohibitory injunction claiming that he is in possession and enjoyment of the suit property, paying revenue and planting crops in it. He also claimed that he has constructed bunds for the said property. Respondents contended that description of plaint schedule property is not correct and that 50 cents in Sy.No.4/1A was Puramboke Kayal and not 'Chira'. Respondents have no dispute over the 50 cents in Sy.No.4/1A assigned to the appellant but appellant has no right or interest over the land comprised in Sy.No.2/1 but that property is not in the possession of the appellant. Properties belonging to one Urmees Tharakan was taken possession of by the Government as excess land on 7.7.1978 in TLB No.30/1977. Appellant encroached into the land comprised in Sy.No.2/1 and planted coconut. He was evicted with the aid of police. Appellant has filed a petition before the Revenue Divisional Officer for correction of Sy.No.4/1A to 2/1. Respondents therefore claimed that appellant is not entitled to S.A. No.710 of 1995 -: 2 :- any relief with respect to the suit property which takes in the land covered by Sy.No.2/1. Appellant gave evidence as P.W1 and examined P.Ws.2 and 3. He produced, apart from Ext.A1, Ext.A2, receipt for payment of revenue and Ext.A3, order of the Taluk Land Board in TLB No.30/Shly. Respondents did not adduce any evidence. Trial court answered the issue in favour of the appellant and granted him a decree. In the appeal at the instance of respondents first appellate court found that without proving proper identity of the property, no injunction could be granted, allowed the appeal and dismissed the suit. Hence this Second Appeal. 2. Following substantial questions of law arise for consideration. “1. Is the court below justified in dismissing the suit without giving the plaintiff an opportunity to take out a commission to prove that suit property is identifiable? 2. Is the court below justified in casting the burden on the plaintiff to take out a commission”? S.A. No.710 of 1995 -: 3 :- It is contended by learned counsel that in the nature of contentions advanced by respondents it was for them to show that suit property takes in any portion of the property comprised in Sy.No.2/1 and in the absence of any evidence in that line first appellate court was not justified in reversing the judgment and decree of the trial court. According to the learned counsel there is evidence to show that appellant is in possession of the suit property and placed reliance on Exts.A1 to A3 and the evidence of P.Ws.1 to 3. 3. This being a suit for injunction appellant has to succeed or fail on the strength of his claim of possession of the schedule property. It cannot be said that the suit property is properly identified when dispute is raised in that line by respondents. Respondents have contended that description of the property is not correct and that it takes in portion of property comprised in Sy.No.2/1 which was taken possession by the respondents as per proceedings in TLB No.30/Shly. It is also the contention of respondents that appellant has already filed a petition before the Revenue Divisional Officer for correction of Sy.No.4/1A to 2/1. Exhibit A1 is the patta issued to the appellant. That document refers to 50 cents in Sy.No.4/1A. Unfortunately Ext.A1 S.A. No.710 of 1995 -: 4 :- does not give boundaries of the property assigned thereby. Therefore based on Ext.A1 alone appellant cannot claim possession of the property in view of the dispute raised by respondents as to its identity. In such a situation burden was on the appellant to prove identity of the suit property with reference to Ext.A1, document produced by him to evidence his title. Appellant has not cared to take out a commission to measure and identify the property. Therefore first appellate court was justified in non-suiting the appellant. 4. Learned counsel submitted that appellant may be given an opportunity to take out a commission and measure the property. Learned counsel submits that portion of the property assigned to the appellant has already been settled in favour of his son who is residing in that portion of the property. It is also the submission of learned counsel that appellant is now aged about 93 years and that it may not be possible for him to institute fresh legal proceedings to protect the property he got as per Ext.A1. Considering the facts and circumstances I am inclined to give appellant an opportunity to prove identity of the property notwithstanding that the litigation is pending for about 24 years. I am satisfied that in the ends of justice remand of S.A. No.710 of 1995 -: 5 :- the case is required. Appellant has to take out a commission to measure the property with reference to the relevant documents and prove identity of the property which he got as per Ext.A1. Resultantly, this appeal is allowed by way of remand. Judgments and decrees passed by the courts below are set aside and the matter is remitted to the trail court for fresh disposal after giving opportunity to both sides to adduce evidence. Parties shall appear in the trial court on 30.10.2009. No costs. THOMAS P.JOSEPH, JUDGE. vsv S.A. No.710 of 1995 -: 6 :- THOMAS P.JOSEPH, J. =================== S.A. NO.710 OF 1995 =================== J U D G M E N T 9TH SEPTEMBER, 2009