IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 SA.No. 605 of 1993(E) ------------------------------- AS.26/1992 of SUB COURT, QUILANDY OS.555/1966 of MUNSIFF COURT, QUILANDY .................... APPELLANTS/ APPELLANTS IN L.A.C. - PLFS. 2 TO 7 ------------------- ***1 KARAPPADI AMMALU AMMA, W/O. GOPALAN NAIR, ULLIYERI AMSOM, NARATH DESOM, QUILANDY TALUK(DIED) *2. KARAPPADI NARAYANI AMMA, D/O. AMMALU AMMA, OF DO. DO. (DIED) 3. KARAPPADI RADHA AMMA, OF DO. **4. KARAPPADI APPU NAIR, S/O. AMMALU AMMA OF DO. 5. KARAPPADI LEELA AMMA, OF DO. 6. KARAPPADI JANARDHANAN NAIR, S/O. AMMALU AMMA OF DO. ADDL. APPELLANTS 7 TO 9 ARE IMPLEADED. 7. M.SREEDHARAN NAIR, KARAPPADY, POST ULLIYERI , VIA QUILANDY CALICUT. 8. PADMINI AMMA, KARAPADY OF DO. 9. RAMESAN, KARAPADY DO. DO. ADDL. APPELLANTS 7 TO 9 ARE IMPLEADED AS THE LR'S OF DECEASED 2ND APPELLANT AS PER ORDER DT. 25.10.94 ON CMP. 1450/94 AND CMP. 1451/1994. ** ADDL. APPELLANT S 10 TO 12 ARE IMPLEADED 10. VASANTHAKUMARI, D/O. KARAPPADY APPU NAIR, KARAPPADY, POST ULLIYERI, CALICUT. 11. ANUPAMA (MINOR). 12. ALKA (MINOR) MINOR APPELLATNS 11 & 12 REPRESENTED BY 10TH APPELLANT. SA. 605/1993 ADDL. APPELLANTS 10 TO 12 ARE IMPLEADED AS THE LR'S OF DECEASED 4TH APPELLANT AS PER ORDER DT. 27.7.95 ON CMP. 908/95. *** APPELLANTS 3,5 AND 6TO 9 ARE RECORDED AS LEGAL HEIR OF DECEASED IST APPELLANT AS PER ORDER DT. 3.2.99 ON MEMO CF. 449/99. BY ADV. SRI.M.C.SEN,PRAKASH.T.THOMAS, SRI.JAYAPRAKASH SEN SMT.PARVATHY A.MENON RESPONDENTS/IST RESPONDENT IN APPEAL 2ND DEFT. IN THE SUIT. ---------------------- KUNNUMMEL OLIYATHU NADUVIRAKANDY DAMODARAN NAIR, S/O. AMMALU AMMA, ULLIYERI AMSOM, NARATH DESOM, QUILANDY TALUK, POST ULLIYERI (EXPIRED) ADDL. RESPONDENTS 2 TO 9 ARE IMPLEADED 2. K.V.KUNHIMADHAVI AMMA, 'PULARI', POST ULLIYERI, NARATH, QUILANDY, CALICUT. 3. VENUGOPALAN NAIR OF -DO- 4. VIJAYARAGHAVAN NAIR, -DO- 5. RAJAGOPALAN NAIR, -DO- 6. SETHUMADHAVAN NAIR, -DO- 7. MEERA BAI, -DO- 8. MAITHILI OF -DO- 9. MEEHAKUMARI OF -DO- ADDL. RESPONDENTS 2 TO 9 ARE IMPLEADED AS THE LR'S OF DECEASED RESPONDENT AS PER ORDER DT. 20.10.94 ON CMP. 1277/94 AND CMP. 1278/94. BY ADV. SRI.P.K.SURESH KUMAR,} R2 TO 9 SMT.SRELATHA M.R. } THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO. 605 OF 1993 =========================== Dated this the 25th day of March, 2008 JUDGMENT The legal heirs of the sole plaintiff in O.S.555/1966 on the file of Munsiff Court, Quilandy who were later impleaded as additional plaintiffs 2 to 7 in the suit are the appellants. Second defendant along with the legal heirs of deceased first defendant are the respondents. Suit was originally filed for permanent prohibitory injunction. Plaint B schedule property is the property covered under Ext.A1 lease. Plaint A schedule property is the property covered under Ext.A1 lease, excluding the property alienated after Ext.A2 assignment deed obtained by the deceased plaintiff. The suit was originally dismissed by the trial court. In the first appeal preferred before the Sub Court, Kozhikode, suit was decreed. It was challenged before this court in S.A. 800/1976 and 801/1976. As per judgment S.A.No.605/1993 2 dated 20.6.1980, judgment of first appellate court was set aside and the suit was remanded to the trial court for a fresh trial and disposal in accordance with law. Both plaintiff and defendants were permitted to amend their pleadings and adduce fresh evidence. This court found that in the nature of the contentions raised by the parties, question of title to the property is also to be decided. Subsequent to the remand, the plaint was amended seeking a decree for recovery of possession of plaint A schedule property on the strength of title. Learned Munsiff after recording evidence dismissed the suit on 30.6.1982. It was challenged before Sub Court, Badagara in A.S.128/1982. Learned Sub Judge on appreciation of evidence found that plot ABCD in Ext.C1 plan is thak No.2 of Ext.A1 lease and plot DEFG is thak No.1 and these two plots are the plaint B schedule properties. It was also found that plot QRIH is the property assigned under Ext.B89 sale deed in favour of Varghese and plot HIKJ is the plot, S.A.No.605/1993 3 assigned under Ext.B90 sale deed in favour of Lekshmi Amma by deceased plaintiff and plot ABQR is the remaining portion of thak No.2 of Ext.A1 and A2 property. Rejecting the case of deceased first defendant that plot ABQR forms part of the property obtained by him under Ext.B77 lease it was found that plaintiffs have title to plot ABQR and plaintiffs are entitled to a decree for recovery of possession of the said plot. But finding that plaintiffs failed to establish that plot DEFG is thak No.1 of Ext.A1 property, learned Sub Judge found that plaintiffs have no title to the said property and therefore they are not entitled to recover possession of the said portion of the property. The case of second defendant that plot DEFG forms part of plot EFXYZ, being the property obtained by them under Ext.B20 lease was upheld and suit as against second defendant was dismissed. Challenging the decree for recovery of possession of plot ABQR, legal heirs of deceased first defendant filed S.A.536/1985. Varghese Kalliath, S.A.No.605/1993 4 J. as per judgment dated 26.11.1985, dismissed the said appeal confirming the judgment of the first appellate court against the first defendant with regard to plot ABQR. Appellants challenged the judgment of the first appellate court in A.S.128/1982, dismissing the claim for recovery of possession of plot DEFG, as against second defendant and defendant No.12 in S.A.728/1985. Paripoornan,J. as per judgment dated 3.8.1992 allowed the appeal and remanded, the appeal back to the first appellate court for fresh disposal in accordance with law finding that mistakes have been committed by the first appellate court in not properly considering the contentions raised by the parties in the light of the different plots demarcated in Ext.C1 plan. Subsequent to the remand, learned Sub Judge as per judgment dated 14.1.1993 dismissed the appeal holding that appellants failed to establish that plot DEFG is thak No.1 of Ext.A1 and A2. Learned Sub Judge found that the western boundary of the property S.A.No.605/1993 5 covered under Exts.A1 and A2 do not tally with the boundaries of plot DEFG and therefore it cannot be the thak No.1 of Ext.A1 as claimed by appellants. It is challenged in the second appeal. 2. The second appeal was admitted formulating the following substantial questions of law. 1. Whether the lower appellate court was justified in holding that the property was not identified when there is no dispute as to the identity of the property in Ext.C1 plan as noted by the trial court. 2. Whether lower appellate court was correct in law in holding that plaintiff has no title to the property thak No.1 of plaint B schedule property, on the ground that there is a mistake in the S.A.No.605/1993 6 name of the western boundary of the property. 3. Learned Senior counsel appearing for appellants and learned counsel appearing for respondents were heard. 4. Learned senior counsel Mr.Sen argued that the fact that plaint B schedule property is plot ABCEFGD was not disputed before the courts below when evidence was recorded and first appellate court was not justified in dismissing the suit on the failure of plaintiffs to identify thak No.1 of plaint schedule property. Learned senior counsel argued that accepting the correctness of the identification made by the Commissioner in Ext.C1 plan, decree granted by the first appellate court in respect of plot ABQR was upheld by this court and when that decree was passed accepting the correctness of the identification of thak No.2 covered under Ext.A1 and A2, in the light of that finding which has become final, first appellate court should not have found that thak No.1 was S.A.No.605/1993 7 not identified. It was argued that when the western boundary of the property covered under Exts.A1 and A2 are mistakenly shown in the document, first appellate court was not justified in non-suiting the plaintiff on the basis of the mistake committed in describing the western boundary of the property covered under Exts.A1 and A2. Learned senior counsel also argued that if the properties are to be identified with reference to the boundaries, case of respondents that the property claimed by them under Ext.B20 is inclusive of the disputed plot DEFG cannot be correct and though respondents contended that the western boundary of the property covered under Ext.B20 is EFX line marked in Ext.C1 plan, the western boundary of the said plot does not tally with the western boundary shown in Ext.B20 and therefore if the property cannot be identified with reference to the western boundary covered under Ext.A1, the property covered under Ext.B20 also cannot be identified. It was argued that when respondents S.A.No.605/1993 8 proceeded with the evidence accepting the correctness of Ext.C1 plan and its identification first appellate court should have found that appellants have title to plot DEFG which is thak No.1 covered under Ext.A1. 5. Learned counsel for respondents argued that identity of the property marked by the Commissioner in Ext.C1 plan was challenged before the trial court itself. It was pointed out that an application was filed by the second defendant to set aside Ext.C3 report and C1 plan and that application was closed by the trial court observing that the question would be considered after recording the evidence and in fact correctness of the plan was not properly considered by the courts below. It was pointed out that Ext.C1 plan was apparently erroneous as the eastern boundary of R.S.No.52/10 is not R.S.No.64 as shown by the Commissioner in Ext.C1 but R.S.No.52/12 as is clear from Ext.B57 survey plan of survey No.52 and it is clear that the property S.A.No.605/1993 9 was not correctly identified by the Commissioner. It was argued that as per Ext.B57 plan, the eastern boundary of survey line 431 of R.S.No.52/10 is R.S.No.52/12 and R.S.No.64 is further to the eastern boundary line of R.S.No.52/12 namely, 673 links line as seen from Ext.B57 plan and if that be so, a portion of plot DEFG as marked by the Commissioner should form part of R.S.No.52/12 in which event, even if plaintiff had title to the property covered under Ext.A1, title cannot be claimed in respect of that portion of plot DEFG which is in R.S.No.52/12. Learned counsel also argued that when examined as PW1 the deceased plaintiff and his assignor as PW2 deposed that when Ext.A2 assignment deed was executed it was found out that the western boundary shown in Ext.A1 was wrong and in spite of that same boundary is carried out in Ext.A2 assignment deed also. Learned counsel argued that as deposed by PW1 intention was to claim some more extra property and therefore when even according to Pws. 1 and 2 S.A.No.605/1993 10 boundaries of the property covered under Ext. A1 and A2 are not correct, identification made by the Commissioner in Ext.C1 plan based on the boundary should not have been accepted. Learned counsel argued that as rightly found by the first appellate court, when plaintiffs failed to establish that plot DEFG is thak No.1 of Ext.A1 and A2 property, appellants are not entitled to a decree for recovery of possession of the said plot and the dismissal of the suit in respect of that property is perfectly correct. 6. Being a suit for recovery of possession on the strength of title, plaintiff can succeed only on establishing his title. As the identity of thak No.1 of Exts.A1 and A2 property was in dispute, without establishing the identity of the property, plaintiff cannot establish the title and consequently cannot succeed in getting a decree for recovery of possession. Though learned senior counsel argued that courts below proceeded on the basis of Ext.C1 plan and correctness of the S.A.No.605/1993 11 identification made by the Commissioner in Ext.C1 plan was not in dispute, as pointed by the learned counsel appearing for respondents, judgment of this court in S.A.728/1985 itself establish that the actual dispute in the suit was with regard to the identity. The learned Judge even in the operative portion of the judgment has stated:- “Substantially the controversy is regarding the identity of the property.” This court found that the dispute was with regard to the identity of the plaint schedule property namely whether thak No.1 covered under Exts.A1 and A2 is the disputed plaint schedule property and the correctness of Ext.C1 plan was not properly considered by the first appellate court. It is seen from the records that second defendant had filed an application to set aside the report and plan submitted by the Commissioner pointing out that the plan prepared by Commissioner is not in accordance with the survey plan. Ext.B57 survey plan of survey No.52 with Ext.B56 survey plan of S.A.No.605/1993 12 survey No.51, establish that the Commissioner has not properly identified the property with reference to the resurvey plan in Ext.C1 plan. Ext.B57 shows that south eastern portion of R.S.No.52 is sub division 12 and the eastern survey boundary line 673 of RS.No.52/12 is the western survey boundary line of R.S.No.64, which lies further to the east of R.S.No.52/12. So also R.S.No.52/10 lies to the west of R.S.No.52/12 and survey boundary line 431 separates R.S.No.52/10 and 52/12. Ext.B57 conclusively establish that R.S.No.52/12 lies to the east of R.S.No.52/10 and links line the eastern boundary of R.S.No.52/12 starts from the meeting point of links line 161 and 431 which separates R.S.No.52/9 and 52/10 and links line 360 and 673, which separates R.S.No.64 from R.S.No.52/9 and 52/12. If that be so, from the south eastern corner of R.S.No.52/9 and to the eastern boundary of R.S.No.52/10 is R.S.No.52/12, but as per Ext.C1 plan it is not R.S.52/12 but R.S.64. If that be so, a portion of plot DEFG S.A.No.605/1993 13 which falls immediately to the west of R.S.No.52/10, as demarcated in Ext.C1 plan should be R.S.No.52/12 and not R.S.No.64. As long as appellants have no case that they have title to any portion of the property in R.S.No.52/12, appellants cannot claim title to that portion of the property which lies to the east of R.S.52/10 demarcated by the Commissioner as plot DEFG. Similarly appellants have no case that R.S.No.52/12 forms part of the western boundary of the property covered under Ext.A1 and A2. If that be so, even a portion of property R.S.No.64 which lies immediately to the east of R.S.No.52/12, cannot be claimed by appellants as part of the property obtained under Ext.A1 and A2. If that be so, appellants cannot claim title to substantial portion of plot DEFG. If that be so, appellants cannot claim title to plot DEFG as rightly found by the courts below. 7. The argument of the learned senior counsel is that as respondents are claiming title to the S.A.No.605/1993 14 disputed property including the property which lies further to the south and east of plot DEFG, under Ext.B20 and the western boundaries of the property covered under Ext.B20 do not tally with the property demarcated by the Commissioner, respondents cannot claim title and therefore appellants are entitled to a decree. First of all, either for the failure of respondents to establish their title or for the weakness of their case, appellants cannot be granted a decree for recovery of possession. Admittedly respondents are in possession of the property. In this suit their title need not be decided. So long as appellants did not establish their title to the disputed plot DEFG it is not necessary to consider whether respondents have title to that property covered under Ext.B20. 8. The fact that thak No.2 of the property covered under Ext.A1, was found by the trial court as well as by this court, as plot ABCD does not mean that identification of thak No.1 by the S.A.No.605/1993 15 Commissioner in Ext.C1 plan is to be accepted. Evidence establish that thak No.2 covered under Ext.A1 is not plot DEFG. If that be so, without properly identifying thak No.1, appellants are not entitled to a decree for recovery of possession. Both the courts rightly found that appellants did not establish the identity of thak No.1 of the property covered under Exts.A1 and A2 and are not entitled to the decree for recovery of possession sought for. I find no reason to interfere with the findings of first appellate court with regard to plot DEFG as marked by the Commissioner in Ext.C1 plan. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006