IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 AS.No. 657 of 1998(D) --------------------------- OS.33/1996 of SUB COURT,NEYYATTINKARA .................... APPELLANT(S)/PLAINTIFF ------------------------------- JOSEPH NADAR THAPASI, AGED 38 YEARS, RESIDING AT KIHAKKINKARA PUTHEN VEEDU, EDAKKODU, CHILAMBRA DESOM, KEEZHAROOR VILLAGE. BY ADVS. SRI.V.SURESH SMT.S.LATHIKA DEVI SRI.G.SUDHEER RESPONDENT(S)/DEFENDANTS ------------------------------------- 1. ARIYAMCODE PANCHAYAT, REPRESENTED BY ITS PANCHAYAT SECRETARY, OTTASEKHARAMANGALAM. 2. LILLY BAI, AGED 57 YEARS, MEMBER OF CHILAMBRA WARD, ARAYAMCODE PANCHAYAT, RESIDING AT VALIYAVAZHI BENALA MANDIRAM, CHILAMBRA DESOM, MANCHANCODE. 3. VARGHESE, S/O.ESSAYA, AGED 42 YEARS, KORAYIL THEKKUMKARA VEEDU OF CHILAMBRA DESOM, MANCHANCODE.P.O. 4. SELVANOSA, S/O. CHARLEES, AGED 42 YEARS, ROADARIKATHU VEEDU, CHILAMBRA DESOM, MANCHANCODE.P.O. 5. THANKAMANI, S/O.SUNDARAN, AGED 44 YEARS, KARUMBARAMUGHAL VEEDU OF CHILAMBRA DESOM, MANCHANCODE.P.O. 6. TITUS ALIAS SIVANANDAN, S/O.CHARLY, AGED 40 YEARS, ROADARIKATHU VEEDU OF CHILAMBRA DESOM, MANCHANCODE.P.O. R1,2,4 BY ADV. SRI.L.MOHANAN R3 & 5-6 BY ADV. SRI.R.GOPAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ ORDER ON C.M.P.NO.6898/1998 IN A.S. NO. 657/1998 DISMISSED 19/11/2010 SD/- M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 657 OF 1998 = = = = = = = = = = = = = = = Dated this the 19th day of November , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Neyyattinkara in O.S.33/96. The suit is one for declaration and damages. The declaratory relief is to the effect that the right of the plaintiff over the property is to be declared and the defendants are to be restrained by a permanent injunction from making a way or destroying the boundaries of the property and also for damages of Rs.55,000/- caused on account of the high handed action of the defendants. The trial court on appreciation of the materials dismissed the suit. It is against that decision the plaintiff has come up in appeal. A.S. 657 OF 1998 -2- 2. Heard the learned counsel for all the sides. There are two prayers which really require consideration in the whole matter. One is with respect to the declaratory relief and the second is with respect to the damages. So far as damages are concerned the trial court has dealt with it elaborately and the only available evidence was that of PW1 and PW2. The trial court on appreciation did not find in favour of the plaintiff and held that the evidence tendered is not satisfactory. It is also stated that they are mutually inconsistent and therefore damages cannot be awarded. I had also considered the same and I also find that there is no evidence worth acceptance to grant damages. Therefore I sustain the refusal of damages by the trial court. A.S. 657 OF 1998 -3- 3. Now the major relief in the suit is with respect to the declaratory relief. It is the case of the plaintiff that the plaintiff had purchased the property by virtue of a document No.1079/91 and thereafter he had constructed a building therein and that there is a granite stone wall on southern side boundaries of the plaint schedule property and on the eastern side there is a granite stone wall upto half the distance and mud walls on the north and west. According to the plaintiff it is this area which is trespassed upon by the demolition of the walls and trespass committed. So in order to sustain a plea the plaintiff has to satisfy the Court that the property claimed by him in the plaint schedule really belongs to him and he has got the title over the property. A.S. 657 OF 1998 -4- 4. The defendants have denied the title and possession over the entire property by the plaintiff. A Commissioner who had been deputed in the matter had admitted that she had not properly identified the property with reference to the document but is only her opinion. So the trial court was totally dissatisfied with the identification of the property which in turn will have a bearing on the title of the plaintiff. 5. Now after the filing of the appeal the plaintiffs produced some documents. It is true that under Order 41 Rule 27 of the Code of Civil Procedure, reception of additional documents can be only done when in spite of due diligence the party was not in a position to produce those documents. But as stated by me earlier the suit is for a declaratory relief on the strength of A.S. 657 OF 1998 -5- its title. So identification of the property and the title to the property are absolutely necessary to have a finding. The approach made by the Commissioner is not at all satisfactory. Therefore I feel an opportunity can be given to the plaintiff to identify the plaintiff and he can be permitted to produce these documents before the trial court in support of his plea. Therefore, so far as the finding on title is concerned it is set aside and the matter is remitted back to the trial court for fresh consideration. 6. In the result the judgment and decree of the trial court are set aside so far as it relates to the declaratory relief and injunction portion is concerned and the matter is remitted back to the trial court with a direction to remit the Commissioner's plan and report and to A.S. 657 OF 1998 -6- identify the property properly with respect to the title deeds of the plaintiff with any other documents of the defendants if produced and thereafter permit all concerned to produce documentary as well as oral in support of their respective contentions and then to dispose of the matter in accordance with law. 6. It is made clear that the question of negativing the damages has become conclusive. The appellant is permitted to take back the documents filed along with I.A.4118/10 for production before the trial court. Being an old matter let their be an expeditious attempt to dispose of the matter. Parties are directed to appear before the trial court on 22.12.10. M.N. KRISHNAN, JUDGE. ul/- A.S. 657 OF 1998 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.657 OF 1998 = = = = = = = = = = = J U D G M E N T 19th November, 2010.