IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 SA.No. 728 of 2000(C) -------------------------------- AS. NO.130/1992 OF THE ADDL. DISTRICT COURT, KOTTAYAM. OS. NO.144/1983 OF THE MUNSIFF'S COURT, VAIKOM. ........ APPELLANT(S): RESPONDENTS/ PLAINTIFFS ---------------------------------------------------------------- 1. ABRAHAM, S/O. MATHAI VALAYAMPRAYIL, AVERMMAKARA, MULAKULAM VILLAGE, VAIKOM TALUK. 2. VARGHESE, PALAMATTATHIL, AVEMMAKARA, MULAMKULAM VILLAGE, VAIKOM TALUK. BY ADV. SRI.S.RADHAKRISHNAN RESPONDENT(S): APPELLANT/IST DEFENDANT -------------------------------------------------------------------- *1. MADHAVAN, KORAVELIL KUNNEL, THEKKEKARA MULAMKULAM VILLAGE, VAIKOM. 2. KUTTAPPAN, KORAVELIL KUNNEL, AVERMAKKARA, MULAMKULAM VILLAGE, VAIKOM. *ADDL. RESPONDENTS 3 TO 7 IMPLEADED. 3. KAUSALYA MADHAVAN, (W/O. IST RESPONDENT), KORAVELIL KUNNEL, AVERMAKKARA, MULAMKULAM VILLAGE, VAIKOM. 4. SOMAN, S/O. IST RESPONDENT, KORAVELIL KUNNEL, AVERMAKKARA, MULAMKULAM VILLAGE, VAIKOM. tss S.A. NO.7282000 5. SOBHA, D/O. IST RESPONDENT KORAVELIL KUNNEL, AVERMAKKARA, MULAMKULAM VILLAGE, VAIKOM. 6. USHA, D/O. IST RESPONDENT KORAVELIL KUNNEL, AVERMAKKARA, MULAMKULAM VILLAGE, VAIKOM. 7. BIJU, S/O. IST RESPONDENT KORAVELIL KUNNEL, AVERMKKARA, MULAMKULAM VILLAGE, VAIKOM. LRS. OF DECEASED R1 ARE IMPLEADED AS ADDITIONAL R3 TO R7 VIDE ORDER DTD. 27.9.2001 ON CMP. 1398/2001. R2 & R5 BY ADV. SRI.VIVEK VARGHESE P.J. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2011, THE COURT ON 16/02/2011 DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.1891/2000 & IA. NO.1325/2004 IN SA. NO.728/2000 DISMISSED 16/02/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.S. TO JDUGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 728 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2011. JUDGMENT The plaintiffs, who were non-suited by the lower appellate court are the appellants. During the pendency of the appeal the first defendant died and his legal heirs have been brought on the party array as additional respondents 3 to 7. 2. The plaint schedule property, which forms a portion of the larger extent of property, was obtained by the father of the plaintiffs as per Ext.A1 dated 8.4.1120. On his death the plaintiffs succeeded to the property. There is a well laid rubble wall on the northern side of the plaint schedule property. On the western side there was a mud wall and the further western property lies at a higher level. Apprehending trespass from the side of the defendants, the suit was laid. S.A.728/2000. 2 3. The first defendant alone chose to contest the suit. He contended that the plaint schedule description is wrong and mischievous. According to him, neither the plaintiffs, nor their predecessor in interest had any manner of right over the suit property. He contended that 62 cents of property situate on the northern side of the property comprised in Sy. No. 449/12A belonged to one Ayyappan, his father and one Karumban Chandri. In 1956 there was an oral partition between the two and 31 cents was retained by Ayyappan and the other 31 cents was retained by Karumban Chandri. Ayyappan mortgaged 16 cents of property in favour of the second defendant on 13.9.1957. From the second defendant, the first defendant obtained assignment of that mortgage in his as well as in his wife's name. On the death of Ayyappan, his rights devolved on the first defendant. The allegation of trespass was denied and it was pointed out that the plaintiffs are not entitled to any reliefs. S.A.728/2000. 3 4. It appears that the suit was dismissed at the first instance. But the matter was carried in appeal as A.S.179 of 1986 before the District Court, Kottayam. The appellate court allowed the appeal and remanded the matter for fresh consideration after obtaining a proper plan and report. After remand, Exts.C5, C5(a) and C5(b) were obtained. The other items of evidence in the case consists of the evidence of P.Ws.1 to 3 and documents marked as Exts.A1 to A3 from the side of the plaintiffs. Defendants examined D.Ws. 1 and 2 and had Exts.B1 to B6 marked. The lower appellate court has noticed certain procedural irregularites committed by the trial court after the case was remanded for fresh consideration to the said court. The lower appellate court has highlighted the confusion created by the wrong procedure adopted by the trial court. 5. Whatever that be, the trial court after remand, on an appreciation of the evidence in the case found in favour of the plaintiffs and granted a decree in his favour. S.A.728/2000. 4 6. The first defendant carried the matter in appeal as A.S. 130 of 1992 before the District Court , Kottayam. The lower appellate court while agreeing with most of the findings of the trial court however found that the disputed portion is in the possession of the defendants. Since there was no prayer for recovery of possession of that property by the plaintiffs, the lower appellate court was of the view that the suit should fail. Accordingly, the appeal was allowed and the suit was dismissed. That brings the first plaintiff before this court. 7. Notice is seen issued on the following questions of law: “1. Whether in a suit for declaration of title and consequential injunction, when the title and possession of plaintiff over the plaint schedule property are proved, and the plea of adverse possession set up by the defendant is found to be not sustainable on facts, the court is justified in dismissing the suit on the ground that a prayer for recovery of possession is also not sought by the plaintiff. S.A.728/2000. 5 2. Whether the lower appellate court went wrong is not following the principle of possession follows title, when the title of the plaintiff was proved, and the claims of adverse possession set up by defendant was found not sustainable and in dismissing the suit on the basis of minor discrepancies in evidence regarding possession. 3. Is not the plea of title and possession claimed by the defendant over the plaint schedule property inconsistent and mutually contradictory with the plea of adverse possession, and hence liable to be rejected. 4. Whether the court below was justified in dismissing the suit holding that the plaintiffs are not entitled to decree, even after relying on the commission report which conclusively proved the possession of the plaintiffs over the plaint schedule property, and finding that the plea of adverse possession is not maintainable, and even if the defendants were in possession of the property, it was acquired subsequent to the suit and in violation of the order of injunction.” S.A.728/2000. 6 8. In order to understand the real controversy involved in the suit, it will be preferable to refer to Ext.C5(b) plan. It appears that both the predecessor in interest of the plaintiffs and the predecessor in interest of the first defendant obtained 62 ½ cents from a common predecessor. Going by the records, the report and plan, 62 ½ cents of property, to which the plaintiffs lay claim, is situated on the western side of the property obtained by the predecessor in interest of the first defendant. In Ext.C5(b) plan the plot shown as ABCDEF is stated to be the property alleged to have been obtained by the first defendant's predecessor in interest. Though they lay claim only to 62 ½ cents, the commissioner found that in fact they are possessing 75.450 cents. The plot over which the plaintiffs lay claim having an extent of 62 ½ cents is identified as DGHIE. DGE is the disputed property. 9. Learned counsel appearing for the appellants pointed out that the lower appellate court has erroneously held that since there is no prayer for recovery of possession, S.A.728/2000. 7 the suit should fail. The lower appellate court has not adverted to the written statement filed by the defendants. The definite stand of the plaintiffs was that the defendants were trying to trespass into the western side of the plot, where there was a well laid mud wall. In reply, the first defendant had contended that the plaintiffs had mischievously shifted their western boundary further west so as to enclose a portion of the first defendant's property. It therefore means that the plaintiffs had trespassed into a portion of the property owned and possessed by the defendants. If that be so, there was no occasion for the plaintiffs to seek recovery of the portion of the property. Learned counsel also drew the attention of this court to the fact that when the case was remanded by the lower appellate court earlier, it was directed that the respective plots claimed by the respective properties will be identified with respect to the documents of title and a proper plan and sketch drawn shall be obtained. However, the first defendant remained satisfied with producing Ext.B6, which is S.A.728/2000. 8 a deed, which deals with only a portion of the property said to have been obtained by the first defendant. 10. Learned counsel also pointed out that the lower appellate court has not appreciated the commissioner's report in the proper perspective and had the commission report been closely scrutinized, it would have been found that it was the defendants, who are trying to trespass into the plaint schedule property and the plaintiffs were entitled to the reliefs. 11. Learned counsel appearing for the respondents on the other hand contended that the plaintiffs have come forward with a suit for declaration and consequential injunction, it was for him to prove his title and possession. Even assuming that the first defendant has not been successful in establishing his case or that the first defendant holds more extent of land than what he is entitled to, that cannot automatically result in a decree in favour of the plaintiffs. According to learned counsel, even after S.A.728/2000. 9 remand, there was no proper identification of the property and therefore the lower appellate court was justified in its conclusion. According to the learned counsel, there was no grounds made out to interfere with the findings of the lower appellate court. 12. After having heard both sides in great detail, it is felt that the contentions raised by the learned counsel for the respondents are bereft of merits. The suit was one for declaration and injunction. True, the burden is on the plaintiffs. The question that arose is whether there has been a proper identification of the property claimed by the plaintiffs as per the document of title, namely, Ext.A1. One may remember here that both the parties lay claim as against the common predecessor in interest. Their properties are also comprised in the same survey number, ie., 449/12A and B. In this context, the property obtained by the plaintiffs will have to be definitely identified. It is seen that the total extent of the property was over 1 ½ acres and at the time of assignment in favour of the plaintiffs' S.A.728/2000. 10 predecessor, the property in the middle portion of the total extent is seen to have been assigned under Ext.A1. Later the western portion seems to have been given to the predecessor in interest of the first defendant. As already noticed, the commission report locates the properties. 13. The dispute in this case centers around 13 ½ cents situate on the western side of the plot claimed by the plaintiff and the eastern side of the plot claimed by the defendant. The plaintiff had specifically averred in the plaint that his property has a well laid boundary wall on the northern side and a mud wall on the western side. The commissioner in his sketch, namely, Ext.C5(b) and in his report noted the position of the two boundaries. It is significant to notice that for reasons best known to the first defendant, he chose not to produce his document of title. The contention of the learned counsel for the respondents that since Exts.B5 and B6 were produced, it could not be said that the title deeds were not available cannot be countenanced. Ext.B5 is the mortgage deed executed by S.A.728/2000. 11 Ayyappan in favour of one Kuttappan. That related to only a portion of the property said to have been obtained by Ayyappan. Ext.B6 is the assignment deed executed by Kuttppan in favour of the first defendant and others of his mortgage right. That obviously can relate only to the property covered by Ext.B5. No satisfactory explanation was offered by the learned counsel for the respondents as to why the first defendant in the suit, even inspite of specific observation by the lower appellate court while remanding the case, did not produce the document. It will not be out of place here to refer to the observation of the lower appellate court in A.S.179 of 1986, which was allowed and remanded to the trial court for fresh consideration. The observation reads as follows: “A new plan should be obtained locating the 62 ½ cents of property obtained by the appellants as per Ext.A1 document and also the western 31 cents of property belonging to the 1st respondent. S.A.728/2000. 12 Moreover, the disputed portion also should be separately shown so that the title over that disputed portion can also be ascertained.” The lower appellate court has also noticed that the entire property in that survey number will have to be located and then only the dispute can be resolved. 14. After remand, with the help of the Taluk Surveyor, the properties had been identified. The Taluk Surveyor was examined as P.W.3 after remand. He in detail speaks about the way adopted for measuring the property. He deposed that the property said to have been obtained by the predecessor in interest of the defendants could be located as ABDEF, which has an extent of 74.450 cents. He also speaks about how he had identified the plaintiff's property. Of course, he had also stated that the triangular portion shown in the plan which has an extent of 13.200 cents was located as directed by the commissioner. He also speaks about a mud wall on the western side of the plaint schedule property, which approximately had a height of ½ S.A.728/2000. 13 feet. The Commissioner has also reported about the cultivation in the two properties. Going by the commission report, it appears that the cultivation seen in the property admittedly owned by the plaintiffs and the disputed portion look similar. While the cultivation done in the property situate on further west of DE line shown in Ext.C5(b) is of a different nature. Ext.C1 is the report of the commissioner when a commission was taken out initially. In the said report it is stated that the plaint schedule property consisting of 62 ½ cents lies within well defined boundaries well separated from the property owned by the defendants on the western side. The above fact is reiterated by the commissioner who went on the last occasion also, and who had filed Ext.C5 mahazar and Ext.C5(a) report. 15. It was the above facts, which had weighed considerably with the trial court and which had found that the plaintiffs have title and possession over the suit property. In the nature of the contentions taken by the first defendant, the lower appellate court was convinced that the S.A.728/2000. 14 apprehension entertained by the plaintiffs was correct. That persuaded the trial court to grant a decree in favour of the plaintiffs. 16. The lower appellate court, though to a considerable extent, concurred with the trial court, on two grounds held against the plaintiffs. They are i) it is not possible to understand as to how the surveyor could have located 13.200 cents as the disputed property in Ext.C5(b) sketch, and ii) the plaintiffs were not able to give convincing answers about the trees that were standing in the disputed portion and of the taking of income from those trees. 17. On the basis of the above two observations, the lower appellate court came to the conclusion that the disputed portion, ie., 13.200 cents is in the possession of the defendants and in the absence of a prayer for recovery of possession, the suit has to fail. 18. It is extremely difficult to accept the finding of the lower appellate court. The Surveyor had in detail stated about the procedure adopted by him to locate the S.A.728/2000. 15 properties. He has specifically stated that he has shown the disputed portion in a triangular shape in his sketch as required by the commissioner. The commissioner has identified the disputed area and he had directed the Surveyor to relocate that portion and the surveyor did so. In the light of this fact, it was quite uncalled for on the part of the lower appellate court to wonder as to how the disputed portion was located. Equally shallow is the observation that since the plaintiffs are unable to give the details of the trees standing in the property and the quantum of usufructs taken therefrom, the property should be in the possession of the first defendant. The lower appellate court seems to have forgotten that the properties obtained by the plaintiffs and the defendants, ie., 62 ½ cents have been identified. In fact the plot which is shown as obtained by the predecessor in interest of the first defendant has a total extent of 74 cents, whereas they were entitled to only 62 cents. The plot identified as obtained by the plaintiffs as per Ext.A1 has only an extent of 62 cents as is S.A.728/2000. 16 covered by the document. Apart from these facts, the lower appellate court has also omitted to note that there are well laid boundaries on the northern and western sides of the plaint schedule property. There is a visible mud wall on the western side separating the plaintiffs' property from the property further on the western side, apart from the above fact is the level difference between the properties of the first defendant and the plaintiffs. Under these circumstances, the first defendant had an obligation to show that the disputed portion of the land is covered by his document of title. As already noticed, Exts.B5 and B6 are of no help in this regard. Inspite of the observation made by the lower appellate court while remanding the case that 31 cents claimed by the first defendant will have to be identified, there was no attempt from the part of the first defendant to establish that his property has not been properly identified. 19. It is here that the contention of the learned counsel for the appellant needs to be noticed. As rightly pointed out by him, the stand of the first defendant in the S.A.728/2000. 17 written statement was that the plaintiffs had shifted their western boundary so as to enclose a portion of the first defendant's property. After having done so, he has laid the suit seeking reliefs against the first defendant. If one reads the written statement, it would appear that it was the plaintiffs, who had trespassed into the property. That obviously is not the case at the time of trial. Going by the written statement, there is absolutely no necessity for the plaintiffs to seek relief of recovery of possession. There is nothing to indicate that the first defendant is in actual possession of 13.200 cents of property which formed the subject matter of dispute in this suit. Admittedly, it is a portion of the property obtained by the plaintiffs' predecessor in interest under Ext.A1. 20. For the above reasons, this court is unable to agree with the finding of the lower appellate court. It does not appear to be in accordance with the evidence available in the case. The conclusion drawn by the lower appellate S.A.728/2000. 18 court appears to be completely wrong and unwarranted by the evidence on record, which has resulted in miscarriage of justice. In the result, this appeal is allowed, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.