IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 SA.No. 642 of 1996(B) -------------------------------- AS.9/1993 of SUB COURT, THIRUVALLA OS.68/1987 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT/APPELLANT/DEFENDANT: ----------------------------------------------------------- M.I. GEORGE, MALANILKUNNATHIL, THATTAKKADU MURI, KOIPRAM VILLAGE, REPRESENTED BY MUKTHIAR HOLDER MATHAI VARGHESE, AGED 68 YEARS, S/O.MATHAI, KULLIYIL VEETTIL, KOIPURAM VILLAGE, DO. MURI. BY ADV. SRI.P.R.VENKETESH RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------------------------------ *1. JACOB MARIAMMA, SANKARAMANGALATHU PANODI KIZHAKKE VEEDU, THATTAKKADU MURI, KOIPURAM VILLAGE. *(DIED) *ADDL. R2 TO R7 IMPLEADED ADDL. R2: P.K. KURUVILA (KURUVILA JACOB), S/O.JACOB MARIAMMA, PARODIL, ADOOR CENTRAL P.O., ADOOR. ADDL. R3: KOSHY JACOB, S/O. -DO-, PARODIL KIZHAKKE VEETTIL, NELLIMALA P.O., VIA ERAVIPEROOR. ADDL. R4: LEELAMMA, W/O.GEORGE JACOB, D/O.JACOB MARIAMMA, PARODI KIZHAKKE VEETTIL, NELLIMALA P.O., VIA ERAVIPEROOR. ADDL. R5: ASHOK GEORGE DO. DO. DO. SA.No. 642 of 1996(B) ADDL. R6: ANEESH GEORGE DO. DO. DO. ADDL. R7: ANNAMMA JACOB DO. DO. DO. * ARE IMPLEADED AS LRS OF DECEASED SOLE RESPONDENT AS PER ORDER DATED 29/06/2010 IN C.M.P.2071/1998. BY ADV. SRI.MVS.NAMBOOTHIRY. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs SA.No. 642 of 1996(B) ORDER ON C.M.P. NO.1895/1996 IN S.A. NO.642/1996 DISMISSED 31/03/2011. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs P.BHAVADASAN, J. ---------------------------- S.A.No.642 of 1996 --------------------------------- Dated this the 31st day of March, 2011 JUDGMENT The first defendant in O.S.No.68/1987 before the Munsiff's Court, Thiruvalla, who suffered concurrent findings against him, is the appellant. The parties and facts are hereinafter referred to as are available before the trial court. During the pendency of the appeal before this court, the first respondent passed away and his legal heirs are impleaded in the party array as additional respondents 2 to 6. 2. According to the plaintiff, the plaint schedule property was outstanding on a mortgage of the year 1956. While the mortgagee was in possession of the property, the plaintiff purchased the mortgagee right from her in 1961 and she was in possession and enjoyment of the property. Out of the said 1 acre wet land, the jenmam right over the eastern 30 cents was given by plaintiff's husband to Koshy in the year 1963. A road passes through the wetland of the second defendant and it is pointed out that the defendants have no property on the eastern side of the road. There was earlier litigation between the second defendant and the plaintiff's husband regarding 20 cents of wetland as O.S.119/1975. Thereafter, the plaintiff filed O.S.184/1975 before this court for declaration of her S.A.No.642 of 1996 2 title and possession over the said 20 cents. The suit was originally dismissed. O.S.No.184/1975 was dismissed and O.S.No. 119/1975 was decreed. The plaintiff preferred two appeals as A.S.No.15/1986 and A.S.No.16/1986 which according to her had been disposed of in her favour. It is pointed out that the defendant trespassed into the portion of the property which belongs to her and was reduced it into their portion. Hence the suit. 3. First defendant in his written statement contended that the present suit is barred by resjudicata in view of the judgment and decree in O.S.184/1975. They disputed the title of the plaintiff to the suit property. According to him, the property lying on the west of one acre claimed by the plaintiff belonged to the second defendant. The defendant had not trespassed into any portion of the property owned and possessed by the plaintiff and the plaintiff does not have title to the entire suit property. Therefore, the defendant prayed for a dismissal of the suit. 4. Defendants 2 and 3 also filed separate written statement raising the same contentions. 5. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts. A1 to A5 from the side of the plaintiff. The defendant remain satisfied by producing Exts.B1 to B7. Exts. C1, S.A.No.642 of 1996 3 C1(a) and C1(b) are the commissioner's report and plan. The trial court after consideration of the evidence before it found that the claim of the plaintiff to be true and granted a decree in favour of the plaintiff. The trial court found that the plaintiff's title over the plaint schedule property identified as JKMN plot in Ext.C1(a) is proved. The first defendant carried the matter in appeal as A.S.No.9/1993. The appellate court confirmed the judgment and decree of the trial court. Hence the second appeal. 6. Notice is seen issued on the following substantial questions of law: a. In a suit for declaration of title and recovery of possession on the strength of title, can the plaintiff be allowed to succeed on the finding that the defendants does not have a valid title to the property. b. In a suit on title, is it not incumbent upon the plaintiff to show that he has a valid and subsisting title to the plaint schedule property, as on the date of suit. c. Is not possession a good title against the whole word except the true owner of the property. d. On the basis of the evidence on record, should not the courts below have found that the defendants have clear title to the property by adverse possession and limitation. 7. The learned counsel appearing for the appellant contended that the courts below were not right in granting a decree as prayed for S.A.No.642 of 1996 4 since a portion of the plaint schedule property does not belong to the plaintiff but to the brother of the husband of the plaintiff as per Ext.B5 partition deed. Regarding that portion of property which belongs to the brother of the husband of the plaintiff, she could not be granted relief. 8. It is also contended that re-survey plan has been finalised and going by the re-survey plan, a portion of the property in the possession of the first defendant. Learned counsel for the appellant pointed out that both the courts below have granted a decree even though plaintiff had no title to the entire suit property. According to the courts below, even if the portion of the property over which the right is claimed, belongs to the brother of the husband of the plaintiff, that is the matter between them and does not concern the defendant. The learned counsel pointed out that the courts below have omitted to note that the suit is based on title, in which the plaintiff is bound to prove her title to the suit property in order to succeed. 9. There seems to be considerable force in the above submission Ext.B5 is the partition deed. The brother of the husband (George Jacob) of the plaintiff is the second executant, he is given item No.2. It has an extent of 36 cents. Ext.B5 dated 31.01.1976 and the suit was filed on 04.02.1987. The plaint schedule property claimed by the plaintiff takes in a portion of the property under S.A.No.642 of 1996 5 Ext.B5 given to George Jacob. In fact the contesting defendant had specifically pointed out that the plaintiff did not have title to the entire property and she has chosen to include portion of the property which belonged to the George Jacob. 10. The commissioner report shows the portion which was set apart to George Jacob in the partition deed. From the plan and report it can be easily seen that the portion of the property set apart to George Jacob is taken in by the plaint schedule. Moreover, trespassed extent is shown as 11 cents including the portion of the property set apart to one George Jacob. 11. In the decision reported in (1992 (2) KLT CN 43 page No.31) Kunhikannan v. Nambeessan, held as follows: “In a suit for recovery of possession on the strength of title plaintiff cannot maintain his case by merely showing the defendant does not have title. The main question for consideration certainly should be whether the plaintiff has got title. Plaintiff can recover possession only on the strength of his title- he cannot succeed by pricking holes in the defendant's case. Of course, in appreciating the plaintiff's evidence as regards title, the defence claim of title could also be relevant. But, merely because the defendant has no title to the property- from that alone, it need not automatically follow that the plaintiff has got title to the property.” 12. The view taken by the courts below that even if the plaintiff did not have title to the entire suit property it is not to the concern of S.A.No.642 of 1996 6 the defendant does not appear to be correct. The defendant can show that the plaintiff had no title to the suit property. The suit based on title it is that the burden of the plaintiff to establish that the plaintiff has title to the suit property in order to recover the same from the defendant. The case on hand there is sufficient evidence to show that a portion of the plaint schedule property did not belong to the plaintiff at all. The reasons given for rejecting the contentions raised by the defendant in this regard is clearly unsustainable. 13. Apart from the above fact before this court appellant has filed I.A.No.1183/2010 seeking to produce additional evidence. By way of additional evidence, the appellant has produced the re-survey plan of the property comprised in re-survey No.251/4 of Eraviperoor Village. According to the learned counsel, this document has bearing on the issue to be resolved in the suit as at the relevant time resurvey has not been finalised. 14. An objection has been filed by the respondent against receiving additional evidence before this court. It is pointed out that there was no reason as to why the appellant could not have produced document now produced before the court below and the attempt is only to prolong the suit. 15. The commissioner's report notices that the re-survey plan was not made available to the commissioner. If as a matter of fact the S.A.No.642 of 1996 7 re-survey plan has a bearing on the issue it is only just and proper that it be considered. 16. Apart from the above fact, the decree already been found defective in that relief has been given to the plaintiff in respect of a portion of the property over which she had no title. It is significant to notice that she was not seeking relief on behalf of George Jacob also. In the result, this appeal is allowed, the judgment and decree of the court below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the court below on 25.05.2011. Office shall send back the records forthwith. The office will also transmit the records produced before this Court. The parties will be at liberty to adduce further evidence if they so chose. The trial court shall dispose of the suit within six months of date of appearance of the parties before it. P.BHAVADASAN, JUDGE. ln