IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 AS.No. 690 of 1999(B) ------------------------------- OS.425/1994 of PRINCIPAL SUB COURT,ALAPPUZHA .................... APPELLANT(S): PLAINTIFF ------------------------ SHAMSUMMA, RESIDING AT NAVAROJI PURAYIDAM, ZACHARIA BAZAR, ALAPPUZHA. BY ADV. SRI.P.S.KRISHNA PILLAI RESPONDENT(S): DEFENDANT ---------------------------- 1. ABDUL RAHUMAN, S/O. ALIYAR BAVA, RAHUMANIYA MANZHIL, BEACH WARD, ALAPPUZHA. 2. ABDEUL AZEEZ, S/O. HAMEEDKUNJU, RESIDING AT ALIKUNJU PURAYIDAM, ALISSERY WARD, ALAPPUZHA. 3. KASIMKUN JU HANEEF, RESIDING AT NAVAROJI PURAYIDAM, ZACHARIA BAZAR, ALAPPUZHA. 4. PESSY MURVANJI NAVAROJI, PRESIDING AT WINDOOR HOUSE, CHURCH GATE, BOMBAY. 5. RATAN MARVANJI NARIYANWALA, S/O. MURVANJI NAVAROJI NARIYANWALA RESIDING AT BARLESTON ROAD, WOKE TOWN BANGALORE. 6. LIONIL DE ROSARIO, S/O. W.J.ROSARIO, RESIDING AT NO.1 /720, CORY BOOK, FORT KOCHI, ERNAKULAM. 7. HABIBA, D/O. ABOOBAKAR, KOCHUKAMBI PURYIDAM, ALISSERY WARD, ALAPPUZHA. A.S. NO.690/1999 8. ASUMA BEEVI, W/O. ABOOBAKAR, DO. DO. 9. KASSIM, S/O.ABOOBAKAR, DO. DO. 10. HAFIYA BEEVI, D/O. ABOOBACKAR, DO . DO. 11. BASHEER ALI, S/O. ABOOBACKAR, DO. DO. 12. MASOODU, S/O. ABOOBACKER, DO. DO. 13. SUBAIDA, D/O. ABOOBACKER, DO. DO. 14. ARIFA, D/O. ABOOBACKER DO. DO. 15. NASSIMA, D/. ABOOBACKER, DO. DO. R2 BY ADV. SRI.K.S.HARIHARAPUTHRAN R6 BY ADV. SRI.C.V.VASUDEVAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.5494/1999 IN AS. NO.690/1999 DISMISSED 31/05/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 690 OF 1999 = = = = = = = = = = = = = = = Dated this the 31st day of May 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Alappuzha in O.S.425/94. The suit is one for a declaration of title, recovery of possession and for declaring the document Nos.84/94, 1527/94 and 1520/88 as not binding on the plaintiff and for a mandatory injunction directing the defendants 1 to 3 to remove the structures constructed in the plaint schedule property. The brief facts necessary for the disposal of the appeal are stated as follows. 2. It is the case of the plaintiff that the plaint schedule property having an extent of 5 cents forms a larger extent of 13 cents of property which belonged to the plaintiff. The A.S. 690 OF 1999 -2- plaintiff had obtained three cents of land as kudikidappa and another 10 cents of land by virtue of a registered instrument of 3.3.94 (Ext.A2). Even in the said document there is a recital that the predecessors-in-interest of the plaintiff are in possession for more than 75 years. Meanwhile the first defendant moved a suit before the Munsiff Court, Alappuzha and obtained an injunction on the basis of a sale deed No.84/94. This first defendant transferred the property in favour of the 2nd defendant by virtue of the document No.1527/94. The title deeds referred to in these two documents is the earlier gift deed of 1988 which is registered as 1520/88. The plaintiff contends neither the first defendant nor the 2nd defendant nor their predecessors-in-interest have got any right or possession or title over the plaint schedule A.S. 690 OF 1999 -3- property and therefore the trespass made by the defendants on the basis of the interim injunction order may not confer them any title. So the plaintiff pray for declaration of title, declaration of certain documents as not binding, recovery of possession and also for mandatory injunction. 3. Defendants on the other hand would contend that the plaintiff does not have any title to or possession over the property and there are no grounds to declare the documents as not binding on the defendants and hence prays for dismissal of the suit. On an analysis of the materials the Court had arrived at a decision that the plaintiff has not succeeded in proving her case and therefore dismissed the suit. It is against that decision the plaintiff has come up in appeal. A.S. 690 OF 1999 -4- 4. Heard the learned counsel for both the sides. At the out set I may have to state that when a suit for declaration of title and recovery of possession and declaration to declare that certain documents are not binding on the parties are filed the plaintiff has to succeed or fail on the basis of his or her title and the weakness or the non explanation of the defendants perfectly regarding their title shall not be a ground for granting a relief in favour of the plaintiff. Now the plaintiff's contention is that by virtue of Ext.A1 she has got kudikidappu right over three cents of land which is not a subject matter of dispute. 5. Next is Ext.A2 document by virtue of which 10 cents are said to be assigned in favour of the plaintiff by three persons. A perusal of Ext.A2 would reveal that three persons whose A.S. 690 OF 1999 -5- predecessors-in-interest were facing an insolvency petition ultimately had transferred this 10 cents of land in favour of the plaintiff with a recital in the document that the plaintiff and her predecessors-in-interest are in continuous possession and occupation of 10 cents of property for the last 75 years and thereby the plaintiff has transferred the title over the plaintiff. There is a reference to an order in insolvency petition and though it is not produced the learned counsel for the appellant in fairness had made available before me the order for perusal. When I perused the order the insolvency petition was really settled by virtue of satisfaction of the debts in favour of the creditors. This Court cancelled the order of adjudication on insolvency petition and thereafter stated that the properties taken for A.S. 690 OF 1999 -6- the purpose of insolvency case shall vest back with the legal representatives as the original insolvent was dead. Absolutely there is no mention regarding the property that has been taken by the receiver in the insolvency petition and there are no materials whatsoever to prove regarding the anterior title of the persons who had executed the document in favour of the plaintiff on 3.3.94. A mere recital in a document of title that too without details will not confer any title on the person who receives a property by virtue of a registered instrument. If the plaintiff as contended had been in khas possession for more than 75 years there would have been innumerable number of documents to prove the same and those documents should have been produced to prove the same. So Ext.A2 title deed does not show how the property is A.S. 690 OF 1999 -7- vested in the assignor to the document and it does not give any details at all except a recital regarding the vesting of the property by virtue of a decision in the insolvency petition. So Ext.A2 by itself cannot confer title on the plaintiff. 6. Now the defendants contentions are that the plaint schedule property along with the remainder or some other part had been purchased by virtue of documents first in 1994 and subsequently the first defendant transfers that right to the 2nd defendant and a suit was instituted wherein the plaintiff would urge that the 3rd defendant had put up a shed and was residing therein. As stated by me earlier by analysing the case of the defendants the plaintiff cannot be granted a declaratory decree regarding the title. A.S. 690 OF 1999 -8- 7. Learned counsel for the appellant had attempted to canvass before me by reading out the deposition of PW1 in order to stress on the point regarding the plot where the property claimed comes and property alleged to be purchased by the defendants come. But in such a case when plaintiffs wanted to establish on the basis of the same the plaintiff should have taken out a Commission to identify the property with respect to the title deeds of the plaintiff as well as that of the defendants and convince the conscience of the Court that the property so obtained does not come by virtue of the title deed of the defendants. This is also not done in this case. An opportunity cannot be granted because under Order 41 Rule 27 when reception of an additional document or evidence is necessary A.S. 690 OF 1999 -9- the Court has to mainly find out whether the person who has not done the thing which he was expected to do was vigilant or not. Order 41 Rule 27 only envisages a situation where a document is attempted to be produced which was not in existence at the time of the conduct of the original case or that in spite of best diligence the party was not in a position to produce the same and lastly for any other sufficient reasons. Now the suit is filed for declaration, recovery of possession and for ignoring three documents. So there was absolutely essential amd fundamental on the part of the plaintiff to produce the relevant documents as well as to take out a Commission to identify the property with respect to the title deeds which he relies. It was also imperative on his part to produce the anterior document of A.S. 690 OF 1999 -10- title which is also a sinaquanon for determination of this case. Even the so called title relied upon by the plaintiff, i.e. Ext.A2 does not contain a solitary recital regarding the tracing of title deeds by the assignors of the property. So the cumulative effect of all these things would show that the plaintiff in the suit miserably failed to establish the points which he has to necessarily prove and therefore I do not find any ground to interfere with the decision rendered by the learned Subordinate Judge. Therefore the appeal lacks merits and the same is dismissed but under the circumstances without any order as to costs. Sd/- M.N. KRISHNAN, JUDGE. Ul/- // true copy // P.A. to Judge. A.S. 690 OF 1999 -11- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.690 OF 1999 = = = = = = = = = = = J U D G M E N T 31st May, 2010.