IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 AS.No. 200 of 1999(F) --------------------- OS.885/1991 of II ADDL.SUB COURT,THRISSUR .................... APPELLANT:PLAINTIFF ---------------------------------- V.L.MADANAN, BUSINESS S/O VAIKATTIL LAKSHMANAN KUNDLIYOOR DESOM, ENGANDIYOOR VILLAGE, THRISSUR TALUK BY ADV. SRI.P.R.VENKETESH RESPONDENT: DEFENDANT --------------------------------------- M.K.BALAN, AGRICULTURIST, S/O MANCHARAMBATH KITTU MANATHALA AMSOM AND DESOM, CHAVAKKAD TALUK ADV. SRI.E.V.ABRAHAM SRI.E.P.GEORGE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20.10.2009 THE COURT ON 20/10/2009 DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 200 of 1999 ---------------------------------------- Dated this the 20th day of October, 2009 JUDGMENT The plaintiff in O.S No. 885/1991 on the file of the Sub court, Thrissur is the appellant herein. The suit is filed for declaration of title and recovery of possession The trial court dismissed the suit. Hence the appeal. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. Plaint A schedule property belongs to the plaintiff. The plaint A schedule property is having an extent of 34 Cents. Plaint B schedule property is 12 Cents forms part of plaint A schedule property having an extent of 12 Cents The plaintiff claims right over the plaint A schedule property as per assignment deed No. 206/1976 marked as Ext.A2. The plaintiff purchased jenmam right of the property as per purchase Certificate No. 2630/1977 of Land Tribunal, Kodungallur. According to plaintiff the property belonging to the father of plaintiff is lying on the east and north of the property belonging to the plaintiff and as the property belongs to the father, no boundary wall was constructed on those sides. On the southern side of plaint A schedule is the property owned by the defendant The plaintiff was employed in U.A.E. On his return from U.A.E he came to understand that the defendant has encroached upon plaint B schedule property and annexed the said portion to the defendant's land. A.S. No. 200 of 1999 -2- The plaintiff also came to know about the filing of O.S. No. 65/1978 by the defendant as plaintiff before the Chavakkad Munsiff Court, against his father, mother,younger brother and one Rajan for permanent prohibitory injunction restraining the plaintiff and his family members from trespassing upon the plaint B schedule property. On the premise that the plaint B schedule property is part of plaint A schedule property, the plaintiff filed O.S No. 885/1991 before the court for declaration of title and recovery of possession of plaint B schedule property. 3. The defendant denied the plaint averments and contended that plaint A schedule property did not belong to the plaintiff as per Ext.A2 assignment deed and that the plaintiff's assignor was not having any right or possession over the property comprised in Survey No. 177/4 The defendant contended that he is the owner of 1 acre of land by virtue of the sale deed Nos. 208/1978 and 521/1978 of Thrissur District Registry According to him the Munsiff Court Chavakkad granted injunction in O.S. 65/1978 for 1 acre of land exclusively belongs to the defendant which includes plaint B schedule property and that the pattayam granted in favour of the plaintiff has no legal validity. The defendant also prayed for the dismissal of the suit with costs. 4 The evidence in this case consists of oral testimonies of PW1, DWs 1 & 2, Exts.A1 to A5, B1 to B15(e), X1 and X2 . 5. The plaintiff sued for a decree of declaration of title and for recovery of possession of plaint B schedule property on the strength of A.S. No. 200 of 1999 -3- title. Exts.A1 to A5 are the documents produced by the plaintiff to prove his title over the plaint schedule property. On the other hand the defendant produced Ext.B1 to B15 series for his claim over the 1 acre of land including plaint B schedule property. 6. The trial court found that Ext.B10 and Ext.B11 sale deeds reveals that the defendant has got title and possession over the one acre of land in survey Nos. 177/4, 177/5, 177/7 and 177/8 of Engandiyur village. Exts. B6 and B7 are the report and plan prepared by the Commissioner in O.S No. 65/1978. The trial court examined Exts. B5 and B12 judgment and decree passed in O.S No. 65/1978. Exts.B1 to B4 are the prior documents in respect of the property. Ext.B15 series are the basic tax receipts relating to the defendant's property. The trial court observed that it can be gathered from Ext.B12 that the property involved in O.S No. 65/1978 was having an extent of 1 acre and 12 cents comprised in Re- Survey No. 177/4 of Engandiyur Village and is in the exclusive possession and enjoyment of the defendant . 7. The decree and judgment in O.S. No. 68/1975 are not challenged and hence have become final. The learned Subjudge also entered a finding that though the plaintiff has produced Exts A1 to A5 the plaintiff did not prove as to where exactly the property is situated by taking out a Commission, that it is the bounden duty of the plaintiff to prove that he has got ownership and possession over the plaint schedule property after identifying the same. The trial court held that though Ext.A2 to A5 A.S. No. 200 of 1999 -4- shows that the plaintiff has got title over the plaint A schedule property,no scrap of paper is produced by the plaintiff to show that he has remitted the revenue tax in respect of the plaint schedule property. The trial court also taken into consideration the contention of the defendant that the property claimed by the plaintiff is not identifiable and the fact that in the light of the said contention it is the primary duty of the plaintiff to convince the trial court by bringing a measured plan and report by an Advocate commissioner and the plaintiff has not chosen to do so. In the above said circumstances the trial court held that the only inference that could be drawn is that the plaint B schedule property is admittedly in the possession of the defendant and the defendant is the owner by virtue of Exts.B10 and B11 sale deeds. Consequently the trial court dismissed the suit . 8. The reason stated by the learned sub judge for non- suiting the plaintiff is wrong and faulty. The trial court ought not have dismissed the suit which was filed for declaration of title and recovery of possession , simply for the reason that the plaintiff did not take out a Commission to identify the property .Without identifying the disputed property the trial court cannot draw an inference that the plaint B schedule property is in the possession and ownership of the defendant by virtue of Ext.B10 and B11 sale deeds. The trial court also misread and misunderstood the decree passed in O.S. No. 65/1978 and held wrongly that the defendant has got title over the property. Firstly, it is not known whether the plaint A.S. No. 200 of 1999 -5- schedule property in the present suit (O.S. No. 885/1991) is the subject of the earlier suit (O.S No. 65/1978) Secondly, the earlier suit was filed is only for perpetual injunction .Even though the learned Munsiff held that the plaint schedule property in O.S No. 65/1978 belong to the defendant herein, the plaintiff was not a party in the earlier suit. If the plaintiff has valid title of the disputed property no one can prevent the plaintiff to sue for declaration of title and recovery of possession of the disputed property on the strength of his title. I have already said that the plaintiff in the present suit is not a party to the earlier suit and therefore the finding in the earlier suit is not binding on him The main reason stated for dismissing the present suit is that the plaintiff failed to take out a Commissioner to identify the property . In this context, I wish to refer to two orders passed by the trial court in I.A. No. 5133/1993 and 8974/1994 which were filed by the plaintiff . I.A. No. 5133/1993 was filed by the plaintiff before the trial court to appoint a Commissioner for preparing a report and plan with the assistance of a Taluk Surveyor after measurement and demarcation of boundaries of the property. The trial court dismissed the application by order dated 30.5.1994 The reason stated in paragraph 2 of the order is as follows: The above suit is instituted for a declaration and recovery of possession of the plaint B schedule property which forms part of the plaint A schedule property. According to the petitioner, the measurement of the plaint schedule properties with the assistance of Taluk Surveyor ascertaining A.S. No. 200 of 1999 -6- the exact extent and boundaries thereof is needed for the correct decision of the above suit. But the respondent/defendant has filed objection to this application contending that no Commission is to be issued for the purpose of the measurement of the plaint schedule properties with the assistance of Taluk Surveyor in the above suit. Since the Commissioner appointed in O.S No. 65/1978 on the file of the Munsiff's Court, Chavakkad had already inspected those properties and the report and sketch produced in the said suits have been produced in the above suit .According to the respondent, the Commissioner in O.S No. 65/ 1978 had prepared the report and plan after measuring the properties with the assistance of Taluk Surveyor on the basis of documents of title to the properties belonging to the plaintiff and defendant. 9. After the dismissal of the said I.A. the plaintiff again filed I.A No. 8974/1994 to appoint an Advocate Commissioner to measure and demarcate the plaint A and B schedule properties and to prepare a sketch with the assistance of Taluk Surveyor. The plaintiff also prayed that for a proper adjudication of the dispute in the present suit an Advocate Commissioner has to be appointed to prepare a plan and report about the identity and extent of the property. According to the plaintiff since the recovery is sought with regard to plaint B Schedule property which was alleged to be encroached by the defendant during his absence it is highly necessary to identify and demarcate the actual extent of plaint 'A' and 'B' A.S. No. 200 of 1999 -7- schedule properties. It is also stated by the plaintiff that the Commissioner's report and plan submitted in O.S. No. 65/1978 as nothing to do with the evidence adduced in the present suit since he was not a party in the earlier suit and that he has no idea about the measurement done in O.S No. 65/1978. I.A. No. 8974/1994 was also dismissed by the trial court by order dated 19.1.1995 reiterating the reasons stated in the earlier I.A and further observed that there is absolutely nothing on record to show that the order of dismissal of earlier I.A. is erroneous for the reason that the property was already measured and demarcated in the earlier suit. It is very strange to note that the learned sub judge did not peruse the records of present suit and very casually overlooked the facts and circumstances in the present suit and placed reliance on the judgment and decree in the earlier suit. In fact there is no reason for preventing the plaintiff from taking out a Commission to measure and identify the property . The interim applications for deputing an Advocate Commissioner was dismissed by the trial court stating untenable reasons. It is not known whether the plaint schedule property in the earlier suit includes the plaint schedule property in the present suit.The plaintiff is not a party in the earlier suit. Moreover the learned sub judge ought to have found that the earlier suit was filed for injunction simplicitor and not for title. In such circumstances the trial court is not justified in not permitting the plaintiff to identify and demarcate the property on the basis of his title deed. In the result, the decree and judgment passed by the trail court are A.S. No. 200 of 1999 -8- set aside and the suit is remanded to the trial court for fresh consideration and disposal The plaintiff shall apply for a Commission to measure and identify the plaint schedule property and in that event the trial court shall depute a Commissioner to prepare a plan and report with the assistance of a Taluk Surveyor for identification and demarcation of the property with reference to the title deed of the plaintiff and defendant The trial court is further directed to dispose of the suit within a period of 9 months from the date of receipt of a copy of this judgment No order as to costs. The court fee paid by the appellant/plaintiff shall be refunded to him (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S. No.200 of 1999 ---------------------------- JUDGMENT 20th October, 2009