IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 SA.No. 699 of 1996(A) -------------------------------- AS.6/1991 of SUB COURT, MUVATTUPUZHA OS.149/1987 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANT(S): APPELLANT /DEFENDANT. ----------------------- ALI SON. KATHIRU, ERAMTHARAYIL HOUSE, VARAPETTY KARA, VARAPETTY VILLAGE, ERNAKULAM DISTRICT. BY ADV. MR.K.K.JOHN RESPONDENT(S): RESPONDENT/PLAINTIFF ------------------------- *SREEDEVI ANTHARJANAM, W/O.DAMODARAN NAMBOOTHIRI, KOTTAKKAL ILLOM, VARAPETTY KARA, VARAPETTY VILLAGE, ERNAKULAM DISTRICT.(DIED) *ADDL.R2:- D.NARAYANAN NAMBOODIRI, KOTTAKAL MANA, VARAPPETTY, KOTHAMANGALAM, ERNAKULAM DISTRICT. ADDL. 2ND RESPONDENT IS IMPLEADED AS PER ORDER DTD. 17.6.09 IN IA. 835/2009. ADDL. R2 BY MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE ADDL.R2 BY ADVS. MR.K.JAYAKUMAR MR.P.B.KRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON 08/03/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 699 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of March, 2010. JUDGMENT The defendants in O.S. 149 of 1987 before the Munsiff's Court, Muvattupuzha, who suffered a decree and whose appeal was dismissed, are the appellants herein. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaint allegation was that the plaint schedule property was a part of the properties, which belonged to the Illom of the plaintiff. As per Annexure A1 document, the defendant's father obtained leasehold right of 80 cents of property out of 88 cents of property. 8 cents was retained by the Illom, that lies on the eastern side of the Kothamangalam-Vazhakulam road on the southern side of Varapetty road. The plaintiff had filed O.S. 169 of 1962, which was a suit for partition. It is stated that the receiver took possession of the plaint SA.699/1996. 2 schedule property in that suit and later the property was allotted to the plaintiff's share. As per the final decree she obtained possession of the same. The complaint was that the defendant in the suit, based on his purchase certificates said to have been obtained by him initially tried to trespass into her property and reduce it into his possession. He has no right to do so. Later he trespassed and reduced it into his possession. Therefore, the suit was laid for declaration of title and recovery of possession. 3. The defendant resisted the suit. He pointed out that the plaint schedule property is a part of the 44 cents which belonged exclusively to him. He obtained purchase certificates regarding the same. His predecessor in interest was in possession and enjoyment of the same and thereafter the defendant. It is pointed out that the survey plan and the commission report in the partition suit will clearly show that the plaintiff was allotted only two cents and not 8 cents as claimed by her. The plaintiff had also filed a petition before the Land Tribunal, Perumbavoor as SA.699/1996. 3 O.A.357 of 1973 to have the boundaries of the patta issued to the defendant corrected. But that petition was dismissed. Going by the boundaries also, the plaint schedule property is taken in by the purchase certificates obtained by the defendant. He therefore contended that the plaintiff is not entitled to any relief. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1, the son of the plaintiff and the documents marked as Exts.A1 to A6 on the side of the plaintiff. Defendant marked Exs.B1 to B12 and had D.Ws.1 and 2 examined. Exts.C1 and C1(a) are the commission report and plan. 5. The court below on a consideration of the materials before it found that the plaintiff had succeeded in establishing her title to the plaint schedule property and she was granted a decree for recovery of plots 2 and 3 in Ext.C1 (b) from the possession of the defendant and also a decree for mesne profits. SA.699/1996. 4 6. The defendant preferred an appeal as A.S. 6 of 1991 before the Sub Court, Muvattupuzha. The lower appellate court confirmed the judgment and decree of the trial court. Hence the Second Appeal. 7. The subject matter of this Second Appeal is infact 8 cents of property comprised in Sy. No. 320/13/2 and Sy. No. 320/14 as could be seen from the plaint. According to the plaintiff, out of 88 cents which their family possessed, 80 cents were leased out to the predecessor in interest of the defendant and 8 cents was retained by the Illom. Later they claimed partition of the properties of the Illom and the disputed 8 cents was alloted to the plaintiff's share. 8. The defendant on the other hand contended that the plaintiff has no manner of right over the plaint schedule property and it is covered by their purchase certificates. He has also contended that he is in absolute possession and enjoyment of the same and in fact under the partition suit the extent of property obtained by the plaintiff is only 2 cents. SA.699/1996. 5 9. Learned counsel appearing for the appellant pointed out that the courts below were carried away by the fact that the defendant was unable to prove his title to the plaint schedule property and therefore the plaintiff is entitled to a decree. It was contended that in a suit for declaration of title and recovery of possession, the entire burden is on the plaintiff to prove her title and any weakness in the case of the defence cannot help her. The plaintiff had to prove that she had obtained title to 8 cents of property as claimed and she is entitled to possession of the same. Attention was drawn to the fact that the plaintiff has not sought to produce the final decree by which she claims to have obtained the property. She on the other hand relies on a report said to have been filed by the receiver, which is Ext.A2 dated 26.4.1973. On the other hand the defendant had produced several documents to show that the claim made by the plaintiff is not true and that at best what she has obtained in the partition suit is only 2 cents in Sy. No.320/13. Learned counsel went on to contend that the SA.699/1996. 6 courts below have not appreciated the evidence in the proper perspective and the findings are perverse and contrary to the materials on record warranting interference in Second Appeal. 10. Learned counsel appearing for the respondent pointed out that the issue as to whether the plaintiff has got title over the suit property is a pure question of fact and both the courts below have concurrently found that the plaintiff has proved title to the suit property. No substantial questions of law arise for consideration in this appeal and the findings of the court below are based on the materials available in the case. Therefore, it is pointed out that no interference is called for with the decrees of the courts below. 11. The following substantial questions of law are raised in the memorandum of appeal: SA.699/1996. 7 “I. Whether on the facts and circumstances of the case the courts below are justified in declaring the plaintiff's title over the plaint schedule property without the jurisdiction and proof of the title deeds relied upon by the plaintiff. II. Whether on the facts and circumstances of the case the courts below were right in discarding the purchase certificate issued by the Land Tribunal Ext.B7 and B8 obtained by the defendant with the landlord on the party array and after contest, which are binding on the plaintiff and which have been come final between the parties. III. is not the suit for recovery of property covered by the purchase certificate under Section 72K of the K.L.R. Act, barred by resjudicata in view of Exts.B7 and B8. IV. Whether the finding of the courts that the plaint schedule property did not form part of B7 and B8 properties is justified and warranted, especially in view of the dismissal of the rectification petition filed by the plaintiff in Ext.B8 case. SA.699/1996. 8 V. Is not the proceedings in the trial court vitiated by acceptance of documents Exts. A5 and A6 without notice to the defendant, after the evidence was closed and reliance is made on them as substantive evidence in the case. VI. Whether the courts below are right or justified in ignoring the fundamental principle of law that a plaintiff in a ejectment suit must succeed on the strength of his own title, that the onus is on the plaintiff to prove his title and a mere destruction of the title of the defendant in the absence of establishment of his own title carries the plaintiff nowhere; and holding that the defendant failed to prove his title over the plaint schedule property. VII. Whether the courts are correct in holding that the claim of the plaintiff is not barred by adverse possession and limitation without considering the evidence adduced by the defendant and available in the case namely Ext.B2 report of the commissioner, Exts.C1 series commission report and plan. ExtsB7 and B8 purchase Certificates and the evidence of D.W.1 and 2 and also the admission of the plaintiff that the defendant is in possession. SA.699/1996. 9 VIII. Has not the non consideration of material evidence in the case and the non-production of the plaintiff's title documents claimed by her to establish title, vitiated the proceedings in the case and resulted in miscarriage of justice. IX. Whether on the facts and circumstances of the case, the appellate court justified in discarding the report of the Surveyor holding that the 8 cents mentioned in Ext.A1 have been acquired for roads and that the same is not available.” 12. Being a suit based on title, it is trite that the burden is on the plaintiff to establish her title to the property. Ext.A1 is the document, which according to the plaintiff, will show that out of the 88 cents only 80 cents had been leased out to the predecessor in interest of the defendant. One may remember here that the claim of the plaintiff is that in the partition suit, that is, O.S.169 of 1962, in final decree proceedings, she had been allotted 8 cents of property, which is the subject matter of the suit. Reliance is also placed by the plaintiff on Ext.A2 dated 30.8.1973, which is a statement filed by the receiver in the partition suit SA.699/1996. 10 pointing out that the defendant is entitled to assignment of land excluding 8 cents. Thus pointing out that the 8 cents was retained by the Ilom and subsequently it was alloted to the share of the plaintiff. 13. It is true that going by the evidence, there are constructions in a portion of the property. In fact regarding the 2 cents, it is conceded by the defendant that the building has been put up by the plaintiff, ie., item No.2 in the survey sketch prepared by the commissioner and marked as Ext.C1 (a). 14. One may at this juncture have a look at the commission report to understand the real dispute. 15. The 80 cents, which is the subject matter of leasehold covered by Ext.A1 had been identified. That consists of items 1 to 7 shown in the Commission report and sketch, namely Ext. C1(a). Item No.1, which has an extent of 40 cents is no longer with the defendant. He claimed possession only in respect of item Nos.2, 3, 4, 5 , 6 and 7. On going through the sketch prepared by the Taluk SA.699/1996. 11 Surveyor, it can be seen that the extent of property marked as items 2, 3, 4, 5, 6 and 7 together come to 40 cents. As already noticed, out of this the defendant concedes that there is a building in item No.2, which has been put up by the plaintiff. One may now ascertain whether the plaintiff has been able to establish her title to the suit property, which she claims has an extent of 8 cents. 16. The Taluk Surveyor in his report produced along with the sketch says that initially there was 88 cents and 8 cents was taken for road and the balance 80 cents has been shown in the sketch. 17. The plaintiff says that she obtained the 8 cents as per the final decree in the partition suit O.S.169 of 1962. The defendant had caused production of documents relating to the said suit. Ext.B9 is the plaint in the suit. Item No.19 in the plaint schedule is the disputed item. Therein the total extent shown in Sy. No.320/13-14 is 80 cents. There is no reference to 8 cents now claimed by the plaintiff. It is true that in Ext.A2 , which the receiver's statement, it is SA.699/1996. 12 mentioned that the 8 cents have to be left out and the tenents are entitled to get certificate only in respect of the rest of the property. Ext.A3 is the Revenue Inspector's report. 18. Exts.A5 and A6 had nothing much to do with the issue involved in the suit. As contended by the appellant, for reasons best known to the plaintiff, the final decree in the partition suit has not been produced. 19. It is not in much dispute that the purchase certificates evidenced by Exts.B7 and B8, the property now claimed by the plaintiff is also taken in. It was because of that fact that the plaintiff had filed a petition before the Land Tribunal to have the boundaries rectified. But that petition was dismissed. Therefore, the fact remains that going by the boundaries in the purchase certificates standing in the name of the defendant, the 8 cents also belongs to them. SA.699/1996. 13 20. Now one may have a look at Ext.B2. Ext.B2 dated 5.2.1970 is the certified copy of the Commissioner's report in O.S.169 of 1962. That shows that the extent of property available in Sy. No.320/13 is only 2 cents and not 8 cents as claimed by the plaintiff now, and this 2 cents had been located as item No.2 in Ext.C1(a) plan. When Ext.B2, which is the commission report in the partition suit shows that the available extent in Sy. No.320/13 is 2 cents, it is not possible to understand as to how the plaintiff had obtained 8 cents as claimed by her. One must recollect that in Ext.B1 document, which is the decree in O.S.169 of 1962 the extent of property shown in 80 cents and not 88 cents. It is that 80 cents that is the subject matter of the lease of the predecessor in interest of the defendant. 21. True, both the courts have concurrently found that the plaintiff had title to item Nos. 2 and 3 shown in Ext.C1(a) plan. But it can be seen that the finding does not get support from the evidence adduced in the case. The plaintiff's son was examined as P.W.1. He reiterates that in SA.699/1996. 14 the partition suit his mother obtains 8 cents. It cannot obviously be true in the light of Ext.B2. It was for the plaintiff to produce the final decree if she had a case that in fact 8 cents were alloted to the plaintiff by the final decree. He also admitted that there was a petition by the plaintiff to have the boundaries of the patta issued to the defendant rectified. That admittedly was dismissed. So it could not be said that the 8 cents now claimed by the plaintiff is not taken in by the purchase certificates of the defendant. These aspects have been omitted to be noticed by the courts blow and therefore the finding cannot be supported in law. 22. As already noticed, the burden is on the plaintiff to show that she has title to the plaint schedule property and she is entitled to recover the same from the defendant. Strictly speaking the plaintiff has miserably failed to show that she had title to the 8 cents now claimed by her in the light of the evidence adduced in the case. Both the courts below seem to have thrown the burden on the SA.699/1996. 15 defendant to prove that he had obtained 8 cents also. That does not appear to be proper. In the light of Exts.B1 and B2, it is for the plaintiff to establish that she had obtained 8 cents of property in Sy. No.320/13 instead of 2 cents as shown in those documents. It is also significant to note that Ext.B9 which is the copy of the plaint in O.S.169 of 1962 the total extent of property shown in the Sy. No. is 80 cents and not 88 cents as claimed by the plaintiff. 23. It has therefore to be held that the plaintiff has failed to establish her title to the suit property. However, one needs to notice that the defendant has conceded that plot No.2 in the suit property has been in the possession of the plaintiff and the building found therein was put up by her. There is nothing to show that the plaintiff at any point of time had title to 8 cents as claimed by her. Her claim therefore will have to be confined to the 2 cents shown in item No.2 in Ext.C1(a) plan. SA.699/1996. 16 In the result, this appeal is partly allowed and the title of the plaintiff to plot No.2 shown in Ext.C1(a) is declared and she is entitled to recover possession from the defendant of that plot through court. She will be entitled to proportionate mesne profits also. The decree so far as item 3 in Ext.C1(a) is set aside and the suit will stand dismissed as regards that item of property also. There will be no order as to costs. P. BHAVADASAN, JUDGE sb. SA.699/1996. 17 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 699 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 08.03.2010