IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 FAO.No. 251 of 2007() ----------------------------- RFA.140/2004 of SUB COURT,KOTTARAKKARA OS.307/2001 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANT (S):(RESPONDENT/PLAINTIFF) --------------------------------- VIJAYAN, S/O. NANU, AGED 68 YEARS, S.N.SADANAM, PANAVELY MURI, VETTIKKAVALA VILLAGE, KOTTARAKKARA TALUK. BY ADV. SRI.A.JAYASANKAR RESPONDENT(S): APPELLANT/DEFENDANT ------------------------- UMMANNOOR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY YESUDASAN, UMMANNOOR, VALAKOM P.O. ADV. SRI.P.B.SURESH KUMAR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.2153/2008 IN FAO NO.251/2007 Dismissed 16.01.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J ----------------------- F.A.O.No. 251 OF 2007 --------------------------------- Dated this the 16th day of January, 2009 JUDGMENT This appeal is preferred against the judgment of the Subordinate Judge, Kottarakkara in R.F.A. No. 140/2004. By the said judgment the learned Subordinate Judge set aside judgment and decree of the Munsiff Court, Kottarakkara in O.S.No.307/2001 and remanded the case to the court below for fresh consideration after giving opportunities to both the parties. It is challenging that decision, the plaintiff has come up in appeal. 2. A perusal of the plaint would reveal that the suit is one for declaration of possession over the plaint schedule property and for a consequential injunction. The plaint schedule property is having an extent of 25 cents in R.S. 62/3 which is a part and parcel of a large extent of 9 acres and 56 cents. It is the case of the plaintiff that by virtue of a Sale Deed No. 2644/1972, he had purchased the right of possession and cultivation of this property. It is submitted by him that he had cultivated in the property and there are two cashew tress which is more than 25 years old. It is further contended that it is the predecessors in interest who had transferred property in F.A.O.No. 251/2007 -2- favour of him. Therefore the plaintiff and predecessors in interest had been in continuous possession of the property for more than 50 years. It is contended that the defendant is attempting to trespass into the plaint schedule property and the plaintiff has sought for the declaration of possession as well as injunction. On the other hand defendant would categorically contend that the plaintiff does not have any right over the property and really the property is used by the Panchayath for running a market and it is being used as a cattle market. It is having an extent of 1 acre 39 cents and that the plaint schedule property is a part and parcel of the said 1 acre 39 cents and therefore neither the plaintiff nor the predecessors in interest of the plaintiff can claim any right of possession over the property. Therefore the suit is liable to be dismissed. 3. In the trial court Exts. A1 and A2, B1 and B2 and C1 and C2 were marked. PWs. 1 and 2 and DW1 were examined. On analysis of the materials the trial court granted a decree in favour of the plaintiff with a relief of mandatory injunction as well. It is against that decision the appeal was preferred and the appellate court set aside the judgment of the trial court and remitted the case back to the court for fresh consideration. After going through the F.A.O.No. 251/2007 -3- judgment of the trial court as well as the appellate court, it requires a remand is without any doubt. But whether the finding entered into by the appellate court may have to be taken as conclusive for the purpose of the decision is a matter that also looked into. Even according to the plaintiff the right conveyed to him under the documents of title is only right to be in possession for making improvements for the reason that the property belong to the Government. It is also recited in the said document, if he purchases the property from the Government, then the predecessors will not have any right over the property and he will get it exclusively. Panchayath is also in the very same position and according to them it is a property that belong to the Government. But their contention is that it is being used by the Panchayath for running cattle market for more than 25 years and the plaint schedule property does not lie as contended by the plaintiff and it is only a part and parcel of this 1 acre 39 cents of property. 4. So the question that arises for determination between the plaintiff and Panchayath should be whether the plaintiff is in possession as contended by him in the plaint or whether the plaint schedule property is a part and parcel of the property claimed by F.A.O.No. 251/2007 -4- the defendant Panchayath which forms a part of 1 acre 39 cents which they claim in R.S. 62/3. So a proper identification of the property is absolutely necessary and it was at this stage, the appellate court felt that the two documents produced in the appellate stage would throw some light on the subject because it was a survey plan with materials which according to the Panchayath would conclude the matter. So there is nothing wrong in identifying the property after taking into consideration the documents produced by the Panchayath. But at the same time, the relevancy and admissibility etc. are all matters which the trial court has to consider and decide after hearing both sides. So the finding of the appellate court that the plaintiff has no title to the property shall not detain the trial court from deciding the issue for the reason that, even the plaintiff does not claim a absolute title by virtue of Ext. A1. But what is claimed by him in the plaint is the title by virtue of being in possession of the property for more than the required period that is against the Panchayath. Whatever it may be, the finding in this case will not affect the right of the ultimate owner namely the Government. So what is to be decided in this case is whether the plaintiff has established his case of possession as F.A.O.No. 251/2007 -5- contended by him under the document claimed by him and by his predecessors or whether it forms a part and parcel of the 1 acre 39 cents claimed by the Panchayath. If the Panchayath is able to establish that, the plaint schedule property becomes a part and parcel of 1 acre 39 cents. Then necessarily the plaintiff's claim has to be rejected. But at the same time I also make it clear that whatever it may be, it is the burden of the plaintiff to prove that the plaint schedule property belongs to him in possession and it is that property and it is not covered by the property claimed by the Panchayath in the written statement. 5. So with these clarifications the F.A.O is disposed of and the trial court is directed to consider the entire matter afresh after permitting the parties to identify the property in the light of the documents produced by them and thereafter permit them to produce documents and evidence and then decide the matter in accordance with law. F.A.O is disposed of and a hearing date is given for the appearance before the trial court as on 25.2.2009. M.N. KRISHNAN,JUDGE vkm