IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN MONDAY, THE 3RD DAY OF AUGUST 2009/ AS.No. 137 of 1999 (D) ----------------------- OS. NO.129/1994 OF SUB COURT, PALA. ...... APPELLANT-1ST DEFENDANT: --------------------------------------------- MEENACHIL PANCHAYATH, REPRESENTED BY ITS EXECUTIVE AUTHORITY, PANCHAYATH OFFICE, MEENACHIL. BY ADV. SRI.MATHEW JOHN. RESPONDENTS-PLAINTIFFS & 2ND DEFENDANT : ------------------------------------------------------------------------ 1. SIVASANKARA MARAR, S/O.BALAKRISHNA MARAR, THEKKUMTHOTTATHIL HOUSE, BHARANANGANAM KARA AND VILLAGE. 2. RADHAKRISHNA MARAR, S/O. DO. DO. 3. SARASAMMA, D/O. DO. DO. 4. RAMACHANDRA MARAR, S/O. DO. DO. 5. SANTHAMMA, D/O. DO. DO. 6. GOPALAKRISHNA MARAR, DO. DO. 7. SOMANATHA MARAR, S/O. DO. DO. 8. THE BHARANANGANAM PANCHAYATH, REPRESENTED BY ITS EXECUTIVE AUTHORITY, PANCHAYATH OFFICE, BHARANANGANAM. BY ADV. SRI.RAJEEV V.KURUP. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03-08-2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. K.SURENDRA MOHAN, J. ------------------------------- A.S.No.137 of 1999 ------------------------------- Dated this the 3rd day of August, 2009 JUDGMENT The first defendant Meenachil Panchayat represented by its Executive Authority in O.S.No.129 of 1994 of the Sub Court, Pala has filed the above appeal challenging the judgment and decree dated 29.8.1997 passed against it. As per the decree, the plaintiff in the suit has been found entitled to recover an amount of Rs.34,325/- with interest thereon at the rate of 6% per annum from the date of suit till the date of realisation, with proportionate costs. Respondents 1 to 7 in the appeal are the plaintiffs and the 8th respondent is the second defendant in the suit. 2. The suit was filed by the plaintiffs/ respondents 1 to 8 for the recovery of money allegedly due to them. Their case is as follows: The plaint schedule property, admeasuring 16½ cents, comprised in Sy.No.1/3 of Bharananganam Village belonged absolutely to their late father A.S.No.137 of 1999 2 Balakrishna Marar. The property was under his absolute ownership and possession till his demise in the year 1992. They have succeeded to the property on his death. The Meenachil river passes along the southern side of the plaint schedule property. The southern half of the river stands vested in the 8th respondent/second defendant, while the northern half is vested in the appellant/first defendant. 3. In June 1991, unprecedented floods occurred and the Meenachil river was swollen. As a result, a portion of the plaint schedule property collapsed into river. According to the plaintiffs, the rushing waters also uprooted and carried away an Anjili tree and a teak wood tree that were standing in the plaint schedule property. The trees along with another tree that was also uprooted, got blocked in a place by name Kothanal Kadavu. Sri.Balakrishna Marar made arrangements to remove the two trees. But, Meenachil Panchayat authorities restrained him from removing the trees. Thereafter, the first defendant took steps to sell the trees in public auction. The auction was fixed on 25.6.1991. On getting A.S.No.137 of 1999 3 information of the auction, Sri.Balakrishna Marar filed O.S.No.284 of 1991 before the Munsiff's Court, Pala praying for a permanent injunction restraining the first defendant from selling the trees. But, the court allowed the first defendant to sell the trees. However, the proceeds of the sale were to be retained by the first defendant in a separate account. Accordingly, the trees were auctioned and were sold for a total amount of Rs.35,125/-. The auction was conducted on 21.8.1991. The trees that belonged to the plaintiff were mentioned as item Nos.6 and 8 in the notification for sale published in the Deepika Daily. Consequent to the auction and the deposit of the sale proceeds, the prayer in O.S.No.284 of 1991 became infructuous. So, the father of the plaintiff did not press the suit and it was dismissed. Thereafter, a notice was issued to the appellant/ first defendant under Section 123 of the Panchayat Act. However, the Panchayat caused the issue of a reply to the same raising false contentions. 4. According to the plaintiffs, the trees in question were planted by their father. They were also cared for by the father. The trees stood well within A.S.No.137 of 1999 4 the property of the plaintiffs. The defendants had no right or possession over the trees. Even if it is found that the trees were standing on poramboke, it was contended that the right of the first defendant in respect of the trees had been lost by adverse possession and limitation. Though the value of the trees claimed by their father was only Rs.14,500/-, the said claim was made on a mere approximation and since an amount of Rs.35,125/- had been realised by sale of the trees, they were entitled to realise the said amount with interest. Therefore, the plaintiffs prayed for a decree for the realisation of an amount of Rs.38,285/- with interest at the rate of 12% per annum. 5. The suit was contested only by the appellant/first defendant. The case of the first defendant is that the property lying immediately on the southern side of the plaint schedule property is the river poramboke vested in the Panchayat as per the provisions of the Panchayat Act, 1960. The river bed lies on the southern side of the poramboke land. Both the river and poramboke land are vested in the A.S.No.137 of 1999 5 Panchayat. It is admitted that there was a flood in the year 1991 and that the flooding waters had uprooted the trees in question. But, the trees were not standing in the property of the plaintiffs. They were on the poramboke land vested in the first defendant. The claim made by the predecessor in interest of the plaintiff to the said trees was without any bonafides. The attempt of Sri.Balakrishna Marar to remove the trees was prevented by the Panchayat. Thereafter, he had filed a suit before the Munsiff Court, Pala praying for a permanent injunction against sale of the said trees. However, the court allowed the sale to be conducted. 6. Thereafter, Sri.Balakrishna Marar issued a notice claiming an amount of Rs.14,500/- as the value of the trees. At the auction conducted, the trees were sold for an amount of Rs.35,125/-. Thereafter the present suit was filed claiming the said amount. The trees in question were standing on the poramboke land. There were several trees on the said land, all of which had grown up spontaneously. The allegation that they were tended by the predecessor in interest of A.S.No.137 of 1999 6 the plaintiffs and that they had title over the disputed trees or the poramboke land on which they were standing are all unfounded. The trees belonged to the Panchayat. The averment that the claim of the Panchayat was barred by the principle of res judicata was also disputed by the first defendant. Therefore, the first defendant contended that the plaintiffs were not entitled to recover any amount to the Panchayat and prayed for dismissal of the suit. 7. On the above pleadings, the court below framed five issues and tried the suit. The plaintiff examined PWs.1 to 3 as witnesses and marked Ext.A1 document on their side. For the defence, DWs.1 to 4 were examined as witnesses and Exts.B1 to B6 series documents were marked. The court below considered the rival contentions of the parties and the evidence on record and came to the conclusion that since both the parties have adduced evidence in the above case, the issue had to be decided on the principle of preponderance of probabilities or a consideration as to which among the case pleaded by the rival parties was more probable. The Court found that the Panchayat A.S.No.137 of 1999 7 had not adduced any evidence to prove that there was poramboke land between the property of the plaintiffs and the river. The court also found with reference to the measurements reported in Exts.C1 and C2 that there appeared to be some other land to the south of the property of the plaintiffs and to the north of the poramboke land claimed by the Panchayat. According to the Court below, since there was no evidence to show that the trees were standing on poramboke land, the plaintiffs were entitled to realise the value of the trees that had been uprooted by the floods. Accordingly, the suit was decreed for an amount of Rs.34,825/= with interest thereon at the rate of 6% per annum. The court below has neither adverted to nor considered the case of adverse possession pleaded by the plaintiffs. It is the said judgment and decree that are assailed by the appellant before me. 8. According to the counsel for the appellant, the court below seriously erred in decreeing the suit, especially in the absence of any evidence to show where exactly the trees were standing before they were uprooted by the floods. It is contended that, the A.S.No.137 of 1999 8 amount claimed by the plaintiffs represented the value of the trees which could be claimed only by the title holder thereof and hence, it was imperative on the part of the plaintiffs to have established their title over the same before a decree could be granted in their favour. In the present case, the evidence adduced was grossly inadequate to support a finding that the trees belonged to the plaintiff. According to the counsel, the river bed as well as the river poramboke were vested in the Panchayat under the Kerala Panchayat Act, 1960. Therefore the title to the said trees were also on the Panchayat. It is further pointed out that the burden to prove title in any title suit is on the person who asserts title and that the said burden is one that does not shift. It is pointed out that the court below has not taken into consideration the above aspects. Therefore, he prays for setting aside the judgment and decree of the court below. 9. The contentions of the appellant are met by the counsel for the respondent by pointing out that the title of the plaintiffs to the plaint schedule property was proved by Ext.A1 title deed. As per Ext.A1 the A.S.No.137 of 1999 9 southern boundary of the property is the river. Though the first defendant Panchayat has laid a claim to the trees contending that they were standing on poramboke land, there is absolutely no evidence of the existence of any poramboke land between the property of the plaintiffs and the river. No description of any such poramboke land is available. The extent or measurement of any such land is also not known. According to the counsel, the burden is squarely upon the first defendant to prove the existence of poramboke land. It is pointed out by the counsel that the evidence of PWs.1 and 3 clearly shows that the disputed trees were standing in the plaint schedule property. Further, though there were three trees in the river at that time, the plaintiffs claimed the value of only two trees, though they could have claimed the value of all the trees. Therefore, their conduct clearly shows their bonafides. The counsel has also submitted that since both sides have adduced evidence, the issues are to be decided by the principle of preponderance of probabilities. A.S.No.137 of 1999 10 10. The point that arises for consideration in the above appeal is : “Whether the evidence on record has established the situs of the disputed trees and the title to the property on which they were standing?” 11. The fact that there were floods in 1991 and that the disputed trees were uprooted by the flooding waters are not disputed by the parties. The dispute narrows down to the question as to who has title to the disputed trees. 12. It was on 6.6.1991 that the trees were uprooted. One is a teak wood tree and the other an Anjili tree. Both trees fell into the river and were carried away by the flooding waters of the Meenachil river. The third tree, another Anjili tree was also carried away by the flood, but, was not standing in the property claimed by the plaintiffs as theirs. On the next day, Sri.Balakrishna Marar tried to remove the trees, but, he was not permitted to do so by the first defendant Panchayat. Thereupon, he submitted Ext.B3 petition dated 10.6.1991. According to him, about 4 cents of his property had slipped into the river in the floods. The A.S.No.137 of 1999 11 trees were apparently standing on the said portion of his property. Therefore, he claimed the value of the trees as well as compensation for the loss of his property. 13. The contention of the appellant Panchayat is that the disputed trees were not standing on the title hold property of the plaintiffs, but on poramboke land. According to the Panchayat, a resolution was adopted by the Panchayat after inspection of the property not to give the disputed trees to Sri.Balakrishna Marar, but to auction them. Survey conducted also revealed that the disputed trees were on poramboke land. Therefore, the Panchayat contends that the plaintiffs are not entitled to get the value of the disputed trees. The court below has found that in the nature of the pleadings, both the plaintiffs and the defendant had equal burden to prove their respective claims. However, it is to be noted that a decision as to title to the disputed trees would depend on who has title to the property on which the trees were standing. Since the plaintiffs' title to the trees is dependant entirely on their title to the property on which the trees were standing, the burden to prove title is entirely on the plaintiffs. It is trite that the burden to A.S.No.137 of 1999 12 prove title does not shift and that the plaintiffs would have to fail if they are not able to establish their title. Therefore, it has to be considered whether the plaintiff has been successful in establishing title to the property on which the disputed trees were standing. 14. As already noted above, the evidence on record consists of the oral evidence of PWs.1 to 3 and DWs.1 to 4. The first plaintiff has been examined as PW1. He has spoken to his case. PW2 is the Advocate Commissioner. He had inspected the plaint schedule property as per orders of the court. His report is Ext.C1 and Plan is Ext.C2. Ext.C2 Plan has shown the position where the disputed trees were standing. However, the Advocate Commissioner is seen to have inspected the property on 15.10.1995. Whereas, the trees were uprooted on 6.6.1991. In his report, the Commissioner has stated that at the time of his inspection, the plaintiffs as well as a Peon representing the Panchayat, one Sri.Avirah were present. He had marked the position where the disputed trees were standing, as pointed out by the said persons. The Advocate Commissioner has given evidence as PW2. He has deposed that there was poramboke land in A.S.No.137 of 1999 13 between the river and the property of the plaintiffs. However, he has not measured the poramboke land. He has also deposed that the plaintiffs were in possession of the extent of 16½ cents covered by their title deed. PW3 is a neighbour of the plaintiffs and he has deposed that the disputed trees were standing in the property of the plaintiffs. 15. DW1 is the Secretary of the Panchayat. According to him, the disputed trees were standing in the poramboke property. However, he has admitted that the plaintiffs were not given notice before the measurement of the property. DW2 is a Peon of the Panchayat. Sri.Avirah was present when the Advocate Commissioner visited the property. He is a person who had gone to the scene immediately on coming to know that the trees had been uprooted by the floods and he had ascertained the position where the trees were standing. According to him, they were on poramboke land. He has deposed that the position of the trees pointed out by him to the Commissioner was a portion of the river. The Taluk Surveyor who measured the property has been examined as DW4. According to him, A.S.No.137 of 1999 14 he had found the plaint schedule property to be 16½ cents in extent, on measurement. He had found river poramboke on the northern side of the river. He has further deposed that on 15.10.1995, there was no sign of the situs of the trees in the property. He has admitted that the measurements contained in Exts.B6(a) and C2 were tallying with each other. To a pointed question in cross, whether the 16½ cents ascertained by him was inclusive of the portion that had collapsed into the river, he has replied in the affirmative. The plaintiffs have produced their title deed which is Ext.A1. The said document is not helpful in ascertaining whether the trees were standing on the property of the plaintiffs or on poramboke land. 16. Admittedly, the trees were uprooted on 6.6.1991. Immediately, the site was inspected by the Panchayat authorities and it was ascertained that the trees were standing on the poramboke land. Therefore, Ext.B4 resolution was adopted on 15.6.1991 to auction the timber. Though Ext.B3 application had been submitted by Sri.Balakrishna Marar on 10.6.1991, the same was rejected as per Ext.B5 proceedings. It is to be A.S.No.137 of 1999 15 noted that, Ext.B4 resolution also refers to the petition Ext.B3. The property was subsequently measured by the Taluk Surveyor in the presence of the Advocate Commissioner and Ext.C2 is the sketch prepared on such measurement. A comparison of Ext.C2 and Ext.B6 shows that the measurements in both the sketches tally with each other. The only difference is that in Ext.C2 the portion where the disputed trees had been standing is marked. However, the report Ext.C1 specifically states that the marking was done as pointed out by the parties and that there were no signs that the disputed trees had been standing there. The Commission inspection was conducted on 15.10.1995 more than four years after the trees were uprooted. The trees were uprooted in the floods in which a portion of the property also was lost by sliding of the land. In view of the fact that the portion of land on which the trees were standing had slid into the water, there was no possibility of any signs existing of the trees that were standing in the property of the plaintiffs. According to paragraph-3 of the plaint, one big Anjili tree and one teak tree which stood on the southern boundary of the plaint schedule property had A.S.No.137 of 1999 16 been uprooted with bed soil as a result of the heavy water flow and the trees were carried down by the “heavy water current”. Since admittedly, the bed soil also was taken away by the river, the allegation that the portion where the trees were standing is still in the property cannot be believed. 17. The trial court has found fault with the Panchayat for not having produced the register of poramboke land and an adverse inference has been drawn for not having produced the same. However, as already noted above, the Advocate Commissioner has noted the presence of poramboke land in Ext.C1 report submitted by him. The Advocate Commissioner who was examined as PW2 has spoken to the existence of poramboke land between the river and the property of the plaintiffs. The Taluk Surveyor who has been examined as DW4 had also deposed that poramboke land was available on the northern side of the river. It is surprising that the court below has not taken note of the above items of evidence which clearly show that that was poramboke land. The plaintiffs also appear to have been aware of the existence of poramboke land on the A.S.No.137 of 1999 17 southern side of their property. That is the reason why, they have put forward an alternative plea in paragraph-9 of their plaint to the effect that, even if the trees had been standing on poramboke land, the title to the said trees have been lost by adverse possession and limitation. Further, the plaint schedule description shows that the trees were standing on the boundary of the property. Therefore, the case that has been sought to be developed in evidence that the trees were standing inside the plaint schedule property and that there were tell tale depressions in the property showing the position where the disputed trees were standing is highly artificial and unbelievable. 18. In the above state of evidence, it has to be found that the plaintiffs have not established that the disputed trees were standing in the property over which they have title or that they had title to the disputed trees. The court below has cast the burden of proof wrongly in the case and had entered findings that are unsupported by the evidence on record. Therefore, the findings of the court below are unsustainable. A.S.No.137 of 1999 18 19. Though the plaintiffs have put forward an alternative contention that the title, if any of the Panchayat to the uprooted trees has been lost by the principle of adverse possession and limitation, the plaintiffs have not pursued the above plea by adducing any evidence. The point also does not appear to have been pressed before the court below. The court below has not considered the above aspect and in the absence of any cross appeal by the plaintiffs, the plea can only be considered to have been given up. 20. Though the counsel for the plaintiffs has contended that since the title to the plaint schedule property has been established by Ext.A1 title deed and since the Panchayat has not been able to prove that there was any poramboke land to the northern side of the river, it has to be presumed that the disputed trees had belonged to the plaintiffs. As I have already noted, there is no evidence in this case to show where the disputed trees were standing. Since the above vital aspect has not been proved by evidence, the plaintiffs cannot claim title to the disputed trees. Therefore, it is found that the plaintiffs have not been able to establish A.S.No.137 of 1999 19 title to the disputed trees. For the above reason, the plaintiffs are not entitled to succeed. For the foregoing reasons, the judgment and decree of the Sub Court, Pala dated 29.8.1997 in O.S.No.129 of 1994 is hereby set aside and the suit is dismissed. In the circumstances of the case, there will be no order as to cost. sd/- K.SURENDRA MOHAN Judge css/ true copy P.S.TO JUDGE A.S.No.137 of 1999 20 K.SURENDRA MOHAN,J. --------------------------------------- A.S.No.137 of 1999 --------------------------------------- JUDGMENT 3.8.2009