IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 SA.No. 409 of 2002(F) AS.NO.49 OF 2000 OF SUB COURT, THIRUVALLA OS.NO.364 OF 1994 OF MUNSIFF COURT, THIRUVALLA APPELLANT: APPELLANT:PLAINTIFF: ------------------------------------------ JAYA GEORGE, AGED 30 YEARS, W/O. MATHAI UMMAN, VADAKKETHACHERIL HOUSE, VADASSERIKKARA MURI, KURATHUSSERIL VILLAGE, CHENGANNUR TALUK. BY ADV. SRI.CHERIAN GEE VARGHESE SRI.P.HARIDAS RESPONDENT: RESPONDENT:DEFENDANT: ---------------------------------- RADHAKRISHNAN NAIR, AGED 64 YEARS, PANTHAPLAMPARAMBIL HOUSE, PARUMALA MURI, KADAPRA VILLAGE. BY ADV. SRI.SATHISH NINAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/1/2008, ALONG WITH SA NO.410 AND 411 OF 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- S.A. NOS.409, 410 & 411 OF 2002 -------------------------------------------- Dated this the 23rd January, 2008 JUDGMENT Appellant in all these appeals is Jaya George, who instituted O.S.No.364 of 1994 and O.S.No.210 of 1996 while she was the second defendant in O.S.No.358 of 1994. The suits filed by Jaya George were dismissed by the trial court and the Appellate Court confirmed the same. The suit filed against Jaya George by Radhakrishnan Nair was decreed by the trial court and it was confirmed in appeal. 2. O.S.No.358 of 1994 was filed by Radhakrishnan Nair against three persons, namely, Mathai Ommen, his wife Jaya George and P.K.George, who is the vendor of the property to Mathai Ommen. That suit was for declaration of title and recovery of possession in respect of 14 cents of land. O.S.No.364 of 1994 was filed by Jaya George against Radhakrishnan Nair for a permanent prohibitory injunction. O.S.No.210 of 1996 was filed by Jaya George against P.K.George for permanent prohibitory injunction. The property scheduled in O.S.No.364 of 1994 and O.S.No.210 of 1996 is having an extent of ten cents and it is the same property. 3. The case of Radhakrishnan Nair is that he purchased the property having an extent of 14 cents from Kizhakkethalackal Samuel as S.A. NOS.409, 410 & 411 OF 2002 :: 2 :: per document No.1612 of 1979. Kizhakkethalackal Samuel had obtained Ext.A1 purchase certificate from the Land Tribunal. Radhakrishnan Nair had filed O.S.No.290 of 1987 against P.K.George, his wife Sosamma and sister Achamma for declaration of title and for injunction in respect of the extent of 14 cents. O.S.No.290 of 1987 was decreed exparte on 13.7.1992. The case of Radhakrishnan Nair is that in spite of the decree in O.S.NO.290 of 1987, the defendants trespassed upon the property and, therefore, he was constrained to file O.S.No.358 of 1994. 4. The case of Jaya George, who instituted two suits as mentioned above and who contested O.S.No.358 of 1994 filed by Radhakrishnan Nair, is that the property having an extent of ten cents belonged to P.K.George, the third defendant in O.S.No.358 of 1994. P.K.George sold the property to Mathai Ommen (husband of Jaya George) in 1993 as per Ext.B2 document No.950/1993. Mathai Ommen settled the property in favour of Jaya George as per Ext.B3 settlement deed executed in the year 1994. 5. In the written statement filed by Radhakrishnan Nair in O.S.No.364 of 1994, he contended that he has title to an extent of 14 cents of land including the plaint schedule property in O.S.No.364 of 1994, ie., ten cents of land. It is also contended in the written statement S.A. NOS.409, 410 & 411 OF 2002 :: 3 :: that O.S.No.290 of 1987 was filed by him in respect of the extent of 14 cents of land and that suit was decreed. 6. P.K.George, who assigned the property to Mathai Ommen as per Ext.B2, contended in the written statement filed in O.S.No.210 of 1996 (filed by Jaya George) that the disputed property belongs to Radhakrishnan Nair. He also stated in the written statement that Mathai Ommen proposed to marry the daughter of P.K.George in 1993. It was agreed to give dowry to Mathai Ommen and as a security for the payment of dowry, document No.950/1993 was executed by P.K.George in favour of Mathai Ommen. Mathai Ommen had subsequently withdrawn from the proposal for marriage. Later, Mathai Ommen and his father, with the help of some policemen, illegally trespassed upon the property situated on the northern side of his property. That property which was trespassed upon belongs to Radhakrishnan Nair. Mathai Ommen and Jaya George have no right or title in respect of that property. 7. In the written statement filed by Jaya George in O.S.No.358 of 1994 it was contended that the plaint schedule property is not properly identified and that it was necessary to identify and locate the property. Though a specific case was put forward by Radhakrishnan Nair in O.S.No.358 of 1994 that the same extent of 14 cents was the suit S.A. NOS.409, 410 & 411 OF 2002 :: 4 :: property in O.S.No.290 of 1987 filed by him, that specific averment was not denied by Jaya George in her written statement in O.S.No.358 of 1994. 8. A Commissioner was appointed in O.S.No.364 of 1994 filed by Jaya George and a sketch was produced. From the sketch, it is clear that the property claimed by Jaya George is situated on the northern side of the property belonging to Puthuparambil George and on the eastern side of PWD road. That property is also bounded on the east by the property of Easo Yohannan. Jaya George had no dispute regarding the identification of the property claimed by her and noted in the sketch. She has also no dispute about the boundaries noted by the Commissioner in Ext.C1(a) sketch. In the schedule to O.S.No.290 of 1987 filed by Radhakrishnan Nair and which was decreed earlier, it is mentioned that the property involved in that suit is an extent of 14 cents on the northern side of the property belonging to defendants 2 and 3 in that suit, namely, P.K.George and Sosamma George. In the plaint schedule in O.S.No.364 of 1994, the southern boundary is shown as the property belonging to Puthuparambil George and the western boundary is shown as PWD road. The eastern boundary is Easo Yohannan's property. In O.S.No.210 of 1996 also the same boundaries which are shown in O.S.No.364 of 1994 are shown. S.A. NOS.409, 410 & 411 OF 2002 :: 5 :: 9. A contention was put forward by Jaya George that the property claimed by Radhakrishnan Nair is not identified with reference to the documents and survey records and, therefore, O.S.No.358 of 1994 was liable to be dismissed. The trial court considered the documentary and oral evidence in great detail and held at paragraph 29 thus: “29. At this stage another contention raised by the learned counsel for the defendants 1 and 2 requires consideration. According to the learned counsel, this (O.S.358/94) suit being a suit for declaration and recovery of possession the plaintiff ought to have identified and located the property sought to be recovered by measuring it as per survey plan by taking out a commissioner and surveyor. True, ordinarily in a suit for recovery of possession, court will insist on identification of the property by obtaining a commission report and plan. But in my opinion, in the case in hand such a course is not at all necessary because except the difference in the extent, both the parties are claiming one and the same property lying within the same boundaries. The said fact is admitted by both the parties at the time of their examination in the case. Moreover the Commissioner deputed from O.S.No.364/94 has prepared and submitted a sketch showing the side measurements of the scheduled property in that case which is the subject matter of dispute in all these cases. The Commissioner has reported that the said property is clearly demarcated from the adjacent properties on its four sides by fencing. In this connection it is also to be remembered that both the plaintiff and defendants have no other property in the spot other than the scheduled items. The 3rd defendant who has got property on the south of the disputed property has made it clear that the scheduled property is not the property obtained by him as per purchase certificate No.3195/77 and conveyed by him to the 1st defendant as per Ext.B2. So what can be understood from the above facts and circumstances is that it is not the identity of the property which is in dispute but its title which I have already found in favour of the plaintiff. Therefore it follows that the plaintiff is entitled to recover the property now remaining in the S.A. NOS.409, 410 & 411 OF 2002 :: 6 :: possession of defendants 1 and 2 and shown by the Commissioner in the Ext.C1(a) sketch in yellow shade.” 10. The trial court, after referring to the oral and documentary evidence, held that Jaya George and Mathai Ommen have not obtained title or possession over the scheduled property. It was also found by the trial court that the defendants in O.S.No.358 of 1994 had dispossessed Radhakrishnan Nair. The trial court held that O.S.No.358 of 1994 filed by Radhakrishnan Nair is liable to be decreed and the other suits filed by Jaya George are liable to be dismissed. 11. It is also relevant to note that both the courts below noticed the following aspects: (1) That Jaya George has not produced the purchase certificate obtained by P.K.George as per which he claimed title. (2) Though Ext.B2 assignment deed executed by P.K.George in favour of Mathai Ommen was produced, the last page containing the schedule of the property was missing and no explanation was offered by Jaya George for the same. (3) Radhakrishnan Nair has not produced the sale deed, No.1612/1979, executed by Samuel in his favour. These observations made by the courts below would indicate that both parties did not take the Court into confidence and did not produce all the relevant records before Court. Parties were also reluctant to take out a Commission and to have a proper and effective trial of the case. While Radhakrishnan Nair was S.A. NOS.409, 410 & 411 OF 2002 :: 7 :: satisfied with the decree which he obtained in O.S.No.290 of 1987 in support of his contentions, Jaya George was satisfied with the failure of Radhakrishnan Nair to take out a Commission to identify the property. The Second Appellate Court cannot be expected to remand matters to the trial court for fresh disposal after affording the parties to the litigation a further opportunity to adduce evidence, when they did not care to adduce proper evidence before the trial court. The parties cannot be allowed to protract the case and to indulge in unending litigation. The question to be looked into is whether the judgments rendered by the courts below are liable to be interfered with in Second Appeal and whether any substantial question of law as provided in Section 100 of the Code of Civil Procedure is involved. 12. The Appellate Court also considered the documentary and oral evidence in detail and concurred with the view taken by the trial court. The Appellate Court noticed in paragraph 18 of the judgment thus: “The property described in the plaint schedule in O.S.No.358/94 is 14 cents comprised of Sy.No.62/1 and there is no dispute to the position that the property described in the plaint schedule in O.S.No.364/94 and 210/96 is a portion of the property described in the plaint schedule in O.S.No.358/94....” This statement in paragraph 18 is not disputed. That means, there cannot be any dispute regarding identity of the property. If the property S.A. NOS.409, 410 & 411 OF 2002 :: 8 :: involved in O.S.No.358 of 1994 is the same property as was involved in O.S.No.290 of 1987, Jaya George would not be entitled to claim any title or legal possession in respect of the property, she being the assignee of P.K.George and P.K.George being a party to O.S.No.290 of 1987. Therefore, for the effective disposal of the case, it is sufficient to consider the question whether the property involved in O.S.No.290 of 1987 and that involved in O.S.No.358 of 1994 is one and the same. Though Radhakrishnan Nair made a specific averment in O.S.No.358 of 1994 that property involved in both the suits is the same, there was no denial of the same by Jaya George in the written statement filed by her. Therefore, all the contentions now raised by the appellant regarding lack of identification of the plaint schedule property are without any substance. The Appellate Court dealt with this aspect in paragraphs 23 and 24 of the judgment, which read as follows: “23. The learned counsel for the appellant has submitted that the plaint schedule property in O.S.No.358/94 and the plaint schedule property in O.S.No.290/87 are entirely different properties. The 1st respondent has specifically alleged in the plaint in O.S.No.358/94 that he instituted a suit as O.S.No.290/87 against the 3rd defendant therein, his wife and sister and obtained a decree in his favour as prayed for and in spite of such an allegation the appellants who are defendants 1 and 2 in O.S.No.358/94 have not raised a contention in their written statement therein that the plaint schedule property therein is not the plaint schedule property in O.S.No.290/87 and their contention that the plaint schedule property in O.S.No.358/94 is not capable to be identified was not sufficient to infer that they were denying the plaint allegation S.A. NOS.409, 410 & 411 OF 2002 :: 9 :: therein that the plaint schedule property in O.S.No.358/94 is the decree schedule property in O.S.No.290/87. 24. The appellants in A.S.No.39/2000 have contended that the plaint schedule property in O.S.No.358/94 was not identified by appointing a commission in spite of the definite contention disputing the identity of the property described therein and in that circumstance, the lower court was not justified in granting a decree declaring the title of that property and allowing its recovery. I have found that the plaint schedule property in O.S.No.358/94 was the decree schedule property in O.S.No.290/87 wherein the 3rd defendant in O.S.No.358/94 was the 2nd defendant. The 2nd defendant in O.S.No.290/87 executed Ext.B2 sale deed after the decree therein in respect of a portion of the decree schedule property therein and the appellants in A.S.No.39/2000 are claiming title over that property through Ext.B2 executed by him. In view of the finding that the plaint schedule property in O.S.No.358/1994 is the plaint schedule property in O.S.No.290/1987 the appellants in A.S.No.39/2000 who are claiming under the 2nd defendant in O.S.No.290/1987 are not entitled to contend that the plaint schedule property in O.S.No.358/1994 is not identifiable...” 13. I am of the view that the courts below have properly considered the pleadings and documentary and oral evidence in the case and have adverted to the contentions raised by the parties and rendered the decision correctly. The well considered judgments of the courts below do not call for any interference in the Second Appeals. The Second Appeals are devoid of merits and they are accordingly dismissed. No order as to costs. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- S.A.NOS.409, 410 & 411 OF 2002 JUDGMENT 23rd January, 2008 -------------------------------------------