IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 SA.No. 123 of 1999(F) ------------------ AS.42/1989 of ADDL.DISTRICT COURT, KOTTAYAM OS.469/1985 of PRL.MUNSIFF COURT, KOTTAYAM ................. APPELLANT / APPELLANT / DEFENDANT : ------------------------------------------------------------- KUMARAKOM PANCHAYAT, REPRESENTED BY ITS EXECUTIVE OFFICER, KUMARAKOM P.O., (NOW DESIGNATED AS KUMARAKOM GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY) BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENT / RESPONDENT / PLAINTIFF : ---------------------------------------------------------------- M.C. JOSEPH, PATTARUCHIRAYIL, KUMARAKOM. BY ADVS. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE SRI.P.GOPAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn P.BHAVADASAN, J. ------------------------------------- SA No.123 of 1999-F ------------------------------------- Dated this the 18th day of February 2011 Judgment The defendant panchayat in OS No.469/85 before the Munsiff's Court, Kottayam, who suffered a decree at the hands of the trial court and which was confirmed in appeal, is the appellant before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff laid claim to the plaint schedule property on the basis of Ext.A1 document dated 08.04.1985. According to him, on the eastern, southern and western sides of his property, there is thodu and on the northern side, there is a barbed wire fencing. Further north is the property owned by the panchayat. Alleging that the panchayat is trying to trespass into his property, the suit was laid. SA 123/99 2 3. The defendant resisted the suit. The main dispute raised by them is that the barbed wire fencing does not form the northern boundary of the property of the plaintiff and they disputed the northern boundary as claimed in the plaint. They also pointed out that there has been several earlier litigations between the plaintiff and the panchayat as well the predecessors-in-interest of both the persons. In all the suits, the plaintiff lost. This would show that the plea put forward by the plaintiff is incorrect. On the basis of these contentions, they prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendant examined DWs 1 and 2 and had Exts.B1 to B8 marked. 5. The trial court, on a consideration of the evidence found that there is admission on the part of the panchayat in their written statement that there is a barbed SA 123/99 3 wire fencing on the northern side of the property and came to the conclusion that that is sufficient to grant a decree to the plaintiff. Accordingly, the suit was decreed. 6. Disappointed, the defendant took up the matter in appeal as AS No.42/89 before the District Court, Kottayam. The lower appellate court, following the same reasonings as that of the trial court, dismissed the appeal. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.Whether the courts below are justified in taking into account any other factors when the recitals in Ext.A1 is specific that the parties intended to convey only what was left after Exts.B1 and B2, sale deeds. 2.Whether in the facts and circumstances of the case, the courts below are justified in holding that the plaintiff proved his possession of the plaint schedule property ? 3.Whether the suit is barred by res judicata ? 4.In the absence of any specific description of the northern SA 123/99 4 boundary in Ext.A1, whether the courts below are justified in holding that the northern boundary of plaint property is a barbed wire fencing and to grant relief on the basis of the said finding ? 5.Whether in the facts and circumstances of the case, the plaintiff has succeeded in proving the identity of the property in respect of which injunction is sought ? 8. The learned counsel for the appellant pointed out that both the courts below have wrongly cast the burden of proof on the defendant. It was also pointed out that the pleadings in the written statement have not been properly understood by the courts below and it is incorrect to say that there was an admission in the written statement which was sufficient to grant a decree in favour of the plaintiff. The learned counsel went on to point out that when the northern boundary of the plaintiff's property was disputed by the defendant, the burden was on the plaintiff to establish the boundaries of his property and it is not for the defendant to show the southern boundary of his SA 123/99 5 property. The learned counsel emphasised that the observations of both the courts below that the earlier suits might not have been filed by the plaintiff, cannot be countenanced. Referring to the pleadings in the plaint, the learned counsel pointed out that the very case of the plaintiff was that in the year 1103 ME, his father obtained the plaint schedule property and after the death of his father, he has been in exclusive possession and enjoyment of the same. If that be so, necessarily, the litigations must have been initiated by him alone and none else. These vital aspects have been omitted to be noticed by the courts below and that has resulted in miscarriage of justice. 9. The learned counsel for the respondent, on the other hand, contended that the existence of a barbed wire fencing was admitted and that is sufficient to establish the case of the plaintiff. If, as a matter of fact, the panchayat had any case that their property extended beyond the northern boundary of the plaintiff's property and taking the property within the barbed wire fencing, it was for SA 123/99 6 them to establish the said fact and having not done so, they cannot be heard to say that the plaintiff is not entitled to a decree. The courts below have considered the matter in considerable detail and have appreciated the evidence in the proper perspective and therefore, no grounds are made out to interfere with the findings of the courts below. 10. I am afraid, I am unable to accept the contentions raised by the learned counsel for the respondent for reasons more than one. The suit by the plaintiff was for an injunction against the defendant from trespassing into the plaint schedule property, which has an extent of 91.5 cents. It must be noticed here that the purchase by the panchayat was as per Ext.B1 document dated 29.03.1980 from the very same vendor, from whom the plaintiff had also purchased his property. The property of the panchayat is admittedly situated on the northern side of the plaint schedule property. The stand taken by the defendant was that the barbed wire fencing is not the correct northern boundary of the plaintiff's property or in SA 123/99 7 other words, the barbed wire fencing did not form the actual boundary between the two properties. 11. Inspite of the specific contention to that effect, it is surprising to note that the plaintiff did not feel it necessary to get the property identified or demarcated with reference to the boundaries of at least the plaint schedule property, if not, the defendant's property also. Further, PW1 panchayat officer has deposed before court that he had occasion to measure the property of the plaintiff and prepare a sketch and plan. If that be so, all that was necessary was to produce the same, which has also not been done. 12. It is trite that when a fact is alleged and disputed, the burden is on the person who wants the court to believe the existence of such a fact to adduce evidence in support of his case. If that principle is adopted in this case, the burden was certainly on the plaintiff to establish his northern boundary. SA 123/99 8 13. Equally unacceptable are the reasonings given by the courts below for not considering the various suits said to have been filed by the plaintiff against the defendant as well as their predecessors-in-interest. Both the courts below laboured much on the name of the plaintiff in the suit and the person who had approached the Land Tribunal. Since the name shown is John, the courts below came to the conclusion that it may not be the plaintiff. One has to say that the above observations are without any basis whatsoever. The courts below have conveniently omitted to notice the pleadings in the plaint. The definite stand of the plaintiff was that his father had obtained the suit property in 1103 ME and consequent upon his death, the plaintiff has been in absolute possession and enjoyment of the property and he is residing there. Obviously, none other than he, could have filed the above suits. 14. In the nature of the allegations and contentions, what was absolutely necessary was at least SA 123/99 9 the identification of northern boundary of the plaint schedule property and that alone has not been done. The decree is based on the so-called admission, which is far from satisfactory. The result is that this court is left with no other option but to remand the matter to the trial court for a fresh decision in accordance with law. Accordingly, this appeal is allowed. The judgment and decree of the courts below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law. The parties shall appear before the court below on 01.04.2011. They will be at liberty to adduce further evidence, if they so choose. The trial court shall endeavour to dispose of the matter as expeditiously as possible, at any rate, within nine months from the date of appearance of the parties before the trial court. P.Bhavadasan, Judge sta SA 123/99 10 SA 123/99 11