IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 SA.No. 118 of 1999(E) ------------------------------ AS.1100/1994 of SUB COURT,NEYYATTINKARA OS.832/1986 of PRINCIPAL MUNSIFF COURT,NEYYATTINKARA .................... APPELLANT(S): APPELLANTS/DEFENDANTS 1 AND 2 ---------------------------------------------------------------------------- *1. NARAYANAN KUNJAN, MEENOTTAKAVU ROADARIKATHU BUNGALOW, ARAYOOR DESOM, CHENKAL PAKUTHY (DIED). 2. KUNJAN PALAYYAN, KAMBARA KANAKKATTU KANAKAVILASOM BUNGALOW DO. DESOM. *ADDL. APPELLANTS 3 TO 7 IMPLEADED. 3. RASSELLAYAN AGED 55 YEARS, SON OF KUNJAN NADAR, RATNA COTTAGE, DARSHAN NAGAR, KADAPPANAKUNNU, PEROORKADA P.O., THIRUVANANTHAPURAM. 4. LILLY AGED 53 YEARS, D/O. RATHINAN, SOUMYA, KUDANGUVILA, ATHIYA P.O., VIA ARALUMOODU. 5. SOLAMAN AGED 49 YEARS, SON OF KUNJAN NADAR, S.P.BHAVAN PONVILA, ARAYOOR DESOM, CHENGAL VILLAGE, NEYYATTINKARA TALUK, AYIRA P.AO., PARASSALA. 6. PUSHPABAI, AGED 45, D/O. RATHINAM, 18/101, PASHATHOTTAN, KANYAKUMARI. 7. ANIL RAJ, AGED 36 YEARS, SON OF KUNJAN NADAR, RATNAVILASOM BUNGALOW, MEENOTTUKAVU, PONVILA, ARAYUR DESOM, CHENGAL VILLAGE NEYYATTINKARA TALUK, AYIRA P.O, VIA PARASALLA. BY ADV. SRI.P.R.VENKETESH SA. 118/1999 RESPONDENT(S): RESPONDENT/PLAINTIFFS AND DEFENDANTS 3 TO 5 ------------------------------------------------------------------------------------------------------- 1. DAMIEL NADAR CHELLAN NADAR, PLAY COTTAGE, PUTHENVILA, ARAYOOR DEOSM, CHENKAL PAKUTHY, FROM MALAPONVILA THAIVEEDU, ERICHELLOOR DESOM, KULATHOOR PAKUTHY . 2. ELISY ELZEBATH, DO. DO. *3 KUNJAN YESUDASAN, KAMBARA KANAKKATTU KANAKAVILASOM BUNGALOW, ARAYOOR DESOM, CHENKAL PAKUTHY.(DIED) *THE 2ND APPELLANT IN SA. IS RECORDED AT THE LEGAL REPRESENTATIVE OF THE DECEASED 3RD RESPONDENT AS PER ORDER DT. 28.3.2011 IN IA. 322/2011. 4. KANAKAMMA SOBBY, DO. DO. 5. PONNUMONY NADAR SWAMI NADAR, KALLUVILA VEEDU, METHUKAMMAL DESOM, METHUKAMMAL PAKUTHY. ADDL. R6 & R7 IMPLEADED. 6. SATHYARAJAN, AGED 41 SON OF KUNJAN NADAR, A.S. NOVAS, PONVILA , ARAYUR DESOM, CHENGAL VILLAGE, NEYYATTINKARA TALUK, AYIRA P.O. VIA PARASALLA. 7. JUSTIN RAJ, AGED 39,SON OF KUNJAN NADAR, J.P.BHAVAN, PONVILA, ARAYUR DESOM, CHENKAL VILLAGE, NEYYATTINKARA TALUK, AYIRA P.O., VIA PARASALLA. * LRS. OF THE DECEASED IST APPELLANTS ARE IMPLEADED AS ADDITIONAL APPELLANTS 3 TO 7 AND ADDITIONAL RESPONDENTS 6 & 7 AS PER ORDER DTD. 126.7.2004 IN IA. 889/2004. R1 &R2 BY ADV. SRI.G.S.REGHUNATH R3 TO R5 BY ADVS.SRI.L.MOHANAN, THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON 27/06/2011 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 118 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of June, 2011. JUDGMENT Defendants 1 and 2 in O.S. 832 of 1986 before the Principal Munsiff's Court, Neyyattinkara are the appellants. During the pendency of the appeal the first defendant-appellant died and his legal heirs have been brought on the party array. The third respondent also passed away during the pendency of the appeal and his legal heirs have also been brought on the party array. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiffs claimed to be the absolute owner in possession of 1.25 acres of land lying as a contiguous plot, wherein there is a residence also. The plaint makes mention of the various documents under which the property was acquired. The first defendant is the owner of the property on the northern side of items S.A.118/1999. 2 1 to 6 and defendants 2 to 5 claimed right under the first defendant. Alleging that the defendants are trying to trespass into the suit property, the suit was laid. 3. The third defendant remained ex-parte. Defendants 1, 2, 4 and 5 filed their written statements. In the written statement filed by the first defendant, it was disputed that 1.25 acres claimed by the plaintiffs was lying as a contiguous plot. It was pointed out that the property claimed by the plaintiffs is item No.35 in the partition deed No.1387/1965 obtained by one Kochan Narayanan. It was claimed that out of the total extent of property obtained by Kochan Naayanan, 25 cents on the northern extremity was obtained by the first defendant as per Ext.B3 dated 5.5.1967. He obtained another 5 cents as per Ext.B2 dated 30.12.1967 and further 10 cents as per Ext.B1 dated 17.4.1968. Thus according to him 40 cents lying on the northern extremity of plaint No.35 covered by the partition deed of 1965 is in his absolute possession and enjoyment and he is the title holder of the said extent of the property. S.A.118/1999. 3 It is pointed out that 28 cents lying on the southern side of the 40 cents possessed by the first defendant in plot No.35 in the partition deed was obtained by defendants 2 to 5. Both the properties are separated by well laid boundaries. According to him, the plaintiffs have obtained title deeds in respect of the property, which has already been sold to the first defendant and defendants 2 to 5 and therefore the plaintiffs could have no title to the property covered by the document of title of defendants 1 to 5. On the basis of these contentions, he prayed for a dismissal of the suit. 4. Defendants 2, 4 and 5 also filed separate written statements containing almost similar contentions as raised in the written statement of the first defendant except for the various documents under which they obtained rights over 28 cents of property. They too prayed for a dismissal of the suit. 5. On the above pleadings, issues were raised by the trial court. The evidence consists of Exts.A1 to A13 marked from the side of the plaintiffs and Exts.B1 to B11 S.A.118/1999. 4 marked from the side of the defendants. Exts. C1 to C2(a) are the commission reports and plans. D.Ws.1 and 2 are the two commissioners examined from the defence side. 6. On an appreciation of the evidence, the trial court found that the plaintiffs are the absolute owners in possession of item Nos. 1, 3, 4 and 6. As regards items 2 and 5 it was found that the plaintiffs have only possession over the property and has no title. However, while granting a decree, the declaration of title over items 2 and 5 was also granted by the trial court. Defendants 1 and 2 carried the matter in appeal as A.S.1100 of 1994. The lower appellate court confirmed the finding of the trial court and dismissed the appeal. Hence this appeal. 7. Notice is seen issued on the following questions of law: “A. In a suit for declaration of title, has not the plaintiff to succeed on the strength of his own title. Will the weakness, if at all any, in the defence, entitled the plaintiff a decree in his favour. S.A.118/1999. 5 B. Did not the lower appellate court act illegally in dismissing I.A.421/96 the application under Order 41 Rule 27 of the C.P.C.? C. Can admissions made by a party affect title over immovable property? D. Did not the courts below err in granting a decree in favour of the plaintiff on the basis of a commissioner's plan, which identification is objected by the plaintiff himself as wrong?” 8. Learned counsel appearing for the appellants pointed out that the evidence is clear to the effect that document of title of the appellants and other contesting defendants in the suit were prior in point of time to the document of title on the basis of which claim is laid by the plaintiffs in respect of items 2 and 5. Learned counsel relying on Section 48 of the Transfer of Property Act contended that in such cases the defendants will have priority of title and the plaintiffs cannot claim any title to items 2 and 5. The vendor of these items has already assigned his rights in favour of the contesting defendants, S.A.118/1999. 6 and he did not have any vestige of rights left in respect of those properties to be assigned to the plaintiffs and the plaintiff could not get a better title than that of the defendants. In support of his contention, learned counsel relied on the decisions reported in Xavier v. John (2011(1) KHC 447), Kuldip Singh v. Balwant Kaur (AIR 1991 P & H 291), Arunachalam v. Sivan (AIR 1970 Madras 226), Ramaswamy Pillai v. Ramasami Naicker (AIR 1960 Madras 396) and Brahma Nand v. Mathra Puri (AIR 1965 SC 1506). Learned counsel then drew the attention of this court to the fact that the lower courts finds fault with the defendants for not establishing their title. According to the learned counsel, the courts below seem to have forgotten that the suit filed by the plaintiffs was one for declaration of title and that being the case, the burden was on the plaintiffs to prove their title and possession and casting of burden on the defendants was quite uncalled for and was against law. Even assuming that the defendants have not been able to prove their title over items 2 and 5, the S.A.118/1999. 7 weakness of the defence case cannot enure to the benefit of the plaintiffs and they had to succeed or fail on their own evidence. In support of his contention, learned counsel relied on the decisions reported in Sayed Muhammed mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee ((2004) 7 SCC 708), Narayana Iyer v. Vella (1988(1) K.L.T. 853), and Kunhikannan v. Damodaran Nambeesan (1992 (2) K.L.J. 625). 9. Per contra, learned counsel for the respondents pointed out that it is surprising to note that defendants 1 and 2, who have conflicting interest have filed a joint appeal. Learned counsel went on to point out that the lower courts have gone on the basis of the pleadings in the case and the evidence adduced in the case. Learned counsel pointed out that the written statements of defendants 1 and 2 cannot co-exist. Both the courts below have taken note of the contentions of the first defendant that 40 cents claimed by him lies as a compact plot within well defined boundaries and according to those pleadings the rights were S.A.118/1999. 8 determined. Learned counsel for the respondents pointed out that the dispute is only with regard to items 2 and 5 and the courts below have only found that the plaintiffs are in possession of those plots. Learned counsel fairly conceded that the plaintiffs cannot claim title to these items. Learned counsel made it clear that he had no quarrel with the proposition of law laid down in the decisions relied on by the learned counsel for the appellants. 10. It is evident that out of the six items scheduled to the plaintiff, dispute is confined to items 2 and 5. As already noticed, Sri.G.Reghunath conceded that as far as those items are concerned, the plaintiffs had only possession and cannot claim title at all. The extent to which the lower courts have declared title of the plaintiffs over items 2 and 5, according to learned counsel, the decree may not be sustainable. 11. The possession regarding these items was also in dispute. Even though this court is exercising its jurisdiction under Section 100 of the Code of Civil Procedure, S.A.118/1999. 9 the court felt it proper to consider the issue elaborately. In the nature of the dispute involved in this case, the counsel were allowed to refer to the evidence both oral and documentary produced in the case. 12. On going through the evidence, it is seen that the courts below relied on Ext.C2 report and C2(a) plan. Though objections are said to have been filed by the defendants to the report and plan, there is nothing to show that they have substantiated their objections and shown that the commission report cannot be accepted. There were two commissioners in the suit and they were examined as D.Ws.1 and 2. None of the parties have gone to the box and they remained satisfied with the documents produced and marked by them. 13. As already noticed, the dispute is confined to items 2 and 5 of the plaint schedule. It is interesting to note that both plaintiffs and defendants traces title to the same predecessor-in-interest and the paramount title is as per partition deed of 1965. There is no dispute regarding the S.A.118/1999. 10 fact that plot No.35 was set apart to Kochan Narayanan. A plan is also seen appended to the partition deed. Item No.35 to the partition deed of 1965 had a total extent of 1.19 acres of land. 14. The six plots shown in the plaint schedule have been identified by the commission in Ext.C2(a) plan. The defendants lay claim to 68 cents out of 1.19 acres of land covered by plot No.35 of 1965 partition deed and their case is that at best their predecessor-in-interest could have assigned only the balance extent of 51 cents to the plaintiffs. The evidence shows that the plaintiffs have property in plot Nos. 36 and 37 of the partition deed of 1965. However, there is no dispute regarding those items. 15. Ext.C2(a) has been made part of the decree. It will be useful to refer to that plan for understanding the real controversy involved in this appeal. 16. Plot No.35 of the partition deed of 1965 has been identified and it is seen to have contained an extent of 1.23 acres. In Ext.C2(a) plan plots shown as TUVS is S.A.118/1999. 11 identified as plot No.37 and SVBA is identified as plot No.36 in the partition deed. The Commissioner says that though plot TUVS is shown as 25 cents in extent, at site the extent is only 6.250 cents. This difference is not material because there is no dispute regarding that plot at all. 17. Plaint schedule item No.6 shown to have an extent of 30 cents acquired as per Ext.A7 is shown as ABCR in Ext.C2(a) plan. A residential house is situated in that property. On the north of item No.6, item No.1 is shown as RCDQ having an extent of 25 cents. There is no dispute regarding these two items. Plaint item No.5 acquired as per Ext.A6 is identified as QDEP having an extent of 10 cents. Item No.2 acquired under Ext.A3 contains two plots and they were identified in Ext.C2(a) plan as PEFO having an extent of 5 cents and OFGN having an extent of 5 cents. 18. The commissioner has also identified the plots of the defendants. The plot covered by Ext. B3 sale deed dated 5.5.1967 having an extent of 25 cents assigned in favour of the first defendant was identified as LIJK. Plot S.A.118/1999. 12 covered by Ext.B7 dated 5.5.1967 in favour of defendants 2, 4 and 5 having an extent of 18 cents has been identified as MHIL. The plot covered by Ext.B8 document dated 30.12.1967 in favour of defendants 2, 4 and 5 having an extent of 10 cents has been identified as OFGHMN. 5 cents of property covered by Ext.B2 dated 30.12.1967 belonging to the first defendant has been identified as PEFO. 10 cents belonging to the first defendant covered by Ext.B1 dated 17.4.1968 is identified as QDEP. The overlapping portion has been identified by the commissioner as QDEFGNOT. 19. Going by the documents, the property of the first defendant comprising of 25 cents acquired under Ext.B3 must be on the northern extremity of plot No.35 as is now located. Thereafter, going by the documents, 18 cents assigned to defendants 2, 4 and 5 covered by Ext.B7 should have been on the immediate southern side. Then on the south the plot covered by Ext.B8 having an extent of 10 cents assigned in favour of defendants 2, 4 and 5. S.A.118/1999. 13 Thereafter comes the 5 cents covered by Ext.B2 and 10 cents covered by Ext.B1. 20. Plaint item No.2 is said to have been acquired under Ext.A3 dated 5.10.1973 and is shown to have an extent of 10 cents. Ext.A3 makes mention of two release deeds, Ext. A11 dated 17.4.1971 and Ext.A12 dated 15.10.1973 by which Devadasan Nadar has obtained those properties. Their prior documents of title are Exts.A9 and A10. 21. Ext.A10 is a mortgage deed executed by Kochan Narayanan in favour of Madan Narayanan. Madan Narayanan, who is the father of defendants 2 to 4, had an extent of 15 cents. This admittedly is the earliest deed executed by Kochan Narayanan. Out of this, the first defendant claimed 5 cents as per Ext.B2 dated 30.12.1967. The document in favour of the first defendant is admittedly prior to the document in favour of the plaintiffs. Ext.B2 makes mention of a mortgage and it is clear that the property was outstanding with the mortgagee. There is S.A.118/1999. 14 nothing to indicate that the first defendant had obtained release of the mortgage made mention of in Ext.B2 document. 22. By Ext.B8 executed by Narayanan Nadar, Kunjan Nadar got only the equity of redemption since the property was outstanding on mortgage. Of course, there is a contention that as per Ext.A12 only 7.5 cents could have been assigned in favour of Devadasan Nadar and Rolisy Nadar by Narayanan Nadar and 7.5 cents was obtained by Kunjan Nadar. But those properties were outstanding on mortgage. The said mortgage was got released by virtue of Ext.B11 document which is after the suit. It is interesting to note that by Exts.A9 and A10 documents the plaintiffs had obtained the mortgage rights released in their favour. Thus, though title vests with the defendants, possession is with the plaintiffs. 23. Coming to plot No.5, it is covered by Ext.B1 dated 17.4.1968 in favour of the first defendant. The document in favour of the plaintiffs is Ext.A6 which is dated S.A.118/1999. 15 20.3.1979. Admittedly the document in favour of the plaintiffs is subsequent to the document issued in favour of the first defendant. 24. Ext.A6 executed in favour of the second plaintiff by the children of Madan Narayan Nadar refers to sale deed No.2768/1968 and release deed No.1677/1975. The release deed referred to in Ext.A6 is Ext.A13. Ext.A13 dated 12.5.1975 is a release deed executed by Gnanamma in favour of Madan Narayanan Nadar. Madan Narayan Nadar is no more and his children assigned the rights to the plaintiffs. At the time of execution of Ext.B1 as could be discernible from Ext.B1, the property was outstanding on mortgage. It has come out in evidence that the mortgage was got released by the plaintiffs. 25. It could thus be seen that plots 2 and 5 were outstanding on mortgage at that time as could be gathered from the documents of title of the first defendant. It is true that the assignment deed in favour of the plaintiffs in respect of these two items are subsequent to the S.A.118/1999. 16 assignment in favour of the first defendant. But the evidence is clear to the effect that the plaintiffs had got release of the mortgages made mention of in these two documents and they were in possession of the same. Therefore, even though the paramount right vests with the first defendant in respect of items 2 and 5 of the plaint schedule, the possession is with the plaintiffs. 26. Now, one may have a look at the written statement filed by the first defendant. In no less terms he asserts that 40 cents of land obtained by him as per the various documents lies as a compact plot on the northern extremity of plot No.35 of the partition deed of 1965. It is specifically averred in the written statement that plot No.35 lies as a compact plot within well defined boundaries. There is nothing to show that the mortgage made mention of in the deeds executed in favour of the defendants have been redeemed. In fact it is interesting to note that going by the written statement of defendants 2, 4 and 5 it would appear S.A.118/1999. 17 that the first defendant has only 25 cents. But going by the documents, the lie of the property appears to be as follows: Defendant No.1 had 25 cents on the northern extremity of plot No.35. Then on the south side of the said plot comes 18 cents purchased by defendants 2, 4 and 5. On the further southern side of the said property, 10 cents of property obtained by defendants 1 and 5. Then comes 10 cents and 5 cents purchased by defendant No.1 by various documents. The above seems to be the lie of the property going by the title deeds produced by the plaintiffs. But the written statement of the first defendant is otherwise. According to him as already noticed, his 40 cents lie as a compact plot on the northern side and there is no property for the defendants in between the property obtained by him under various documents. 27. The Commissioner has reported that 15 cents belonging to the first defendant and 5 cents belonging to defendants 2, 4 and 5 overlap the documents of title of the plaintiffs. However, as already noticed, the plaintiffs have S.A.118/1999. 18 been successful in saying that they had redeemed the various mortgages made mention of in the title deeds of the parties and obtained possession of the same. 28. The trial court infact rightly noticed that though defendants had infact title over items 2 and 5, the plaintiffs are in possession of the same. Infact in paragraph 8 of the judgment of the trial court, it is made clear that while defendants owned title to plaint items 2 and 5, plaintiffs have only possession of the same. However, in the decreetal portion it was omitted to be specified that the plaintiffs have only possession over items 2 and 5, though the title vests with the defendants. 29. The lower appellate court also omitted to notice this fact and has simply confirmed the decree. 30. It would thus be seen that the finding of the court below that though defendants 1 to 5 have title over items 2 and 5 of the plaint schedule, possession is with the plaintiffs does not call for any interference. However, it needs to be made clear that while the plaintiffs are entitled S.A.118/1999. 19 to a declaration of title over items, 1, 3, 4 and 6, they are entitled to a declaration of possession only with respect to items 2 and 5. 31. Accordingly, the decree granted by the courts below will stand modified as follows: While there will be a declaration of title and possession over items 1, 3, 4 and 6 in favour of the plaintiffs, there will also be a declaration of possession in respect of items 2 and 5 in the plaint in favour of the plaintiffs. Defendants are prohibited by a prohibitory injunction from trespassing into the suit property and committing any loss or taking usufructuous or from altering its boundaries or from putting up any structures therein. Ext.C2(a) plan will form part of the decree. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.