IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 FAO.No. 211 of 2005() ---------------------------- AS.99/2004 of ADDITIONAL DISTRICT COURT (ADHOC-I), THODUPUZHA OS.256/1988 of MUNI-MAGI COURT, DEVIKULAM .................... APPELLANTS/RESPONDENTS/PLAINTIFF : -------------------------------------------------- 1. PAULOSE, S/O. PURAVATHU, RESIDING AT KUTTIPUZHA (H), ADIMALI KARA, MANNAMKANDAM VILLAGE, ADIMALI P.O., DEVIKULAM TALUK, NOW RESIDING AT KUTTIPUZHA HOUSE, SOUTH MARADI KARA, MARADI VILLAGE, EAST MARADI P.O., MUVATTUPUZHA TALUK 2. VARGHESE, S/O. KURIAKOSE, THOTTIKATTIL (H), ADIMALI KARA, MANNAMKANDAM VILLAGE, ADIMALI P.O., DEVIKULAM TALUK, 3. ALIAMMA, W/O. PAULOSE, KUTTIPPUZHA (H), ADIMALI KARA, MANNAMKANDAM VILLAGE, ADIMALI P.O., DEVIKULAM TALUK, NOW RESIDING AT KUTTIPUZHA HOUSE, SOUTH MARADI KARA, MARADI VILLAGE, EAST MARADI P.O., MUVATTUPUZHA TALUK BY ADV. SRI.P.NOOR SEMIR SRI.T.J.MICHAEL RESPONDENTS/APPELLANT/DEFENDANTS : ---------------------------------------------------- 1. ISSAC, S/O. PURAVATHU, AGED 54 YEARS, KUTTIPUZHA (H), ADIMALI KARA, MANNAMKANDAM VILLAGE, ADIMALI P.O., DEVIKULAM TALUK. 2. PHILIP, S/O.ISSAC, AGED 30 YEARS, RESIDING AT KUTTIPUZHA HOUSE, ADIMALI KARA, MANNAMKANDAM VILLAGE, ADIMALI P.O., DEVIKULAM TALUK. FAO.No. 211 of 2005() 3. MATHEW, AGED 27 YEARS, S/O. PURAVATHU, RESIDING AT KUTTIPUZHA HOUSE, ADIMALI KARA, MANNAMKANDAM VILLAGE, ADIMALI P.O., DEVIKULAM TALUK ADV. SRI.C.K.VIDYASAGAR- R1 TO R3 SRI.T.I.ABDUL SALAM - R1 TO R3 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED PASSED THE FOLLOWING: FAO.No. 211 of 2005() ORDER ON I.A.NOS.2863/05 & 4166/08 IN F.A.O. NO. 211/05 DISMISSED 30.10.2008 SD/- M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac M.N.KRISHNAN, J. -------------------------- F.A O. No. 211 OF 2005 --------------------- Dated this the 30th day of October, 2008 JUDGMENT This appeal is preferred against the judgment of the Addl. District Judge, Thodupuzha, in A.S. 99/04. The plaintiffs' case was found in favour by the trial court which on appeal was reversed and remitted the matter back to the trial court for fresh consideration. The suit is one for recovery of possession of property on the strength of the plaintiffs' title. The plaintiffs' property was identified with respect to the documents produced by the plaintiffs and the Commissioner demarcated the area of trespass. Thereafter on the basis of the same, the court below decreed the suit. In the appeal the court felt that for a proper determination of the case there must be identification of the property with respect to the documents of both parties to arrive at a decision. When the Commissioner was examined before the court below, he had made it clear that it would be possible to locate the disputed property only after measuring out the property of the defendants also. According to him the property of the defendants is also comprised within the same survey number as FAO No.211/05 2 that of the disputed property. PW1 has also admitted that the properties of the plaintiffs and defendants lie contiguous. It is also interesting to note the case of the plaintiffs that they had admitted at one point of time on the basis of the document that the properties had not come to them but subsequently it has been handed over after a survey and the trespass is done by the defendants thereafter. So these are all matters which really requires deep consideration. 2. It is also a well settled principle that a plaintiff in a suit for recovery of possession, on the strength of title, cannot succeed on the weakness of the defendant's case or by picking up holes in the defendant's case. He has to satisfactory establish that he had title to the property by properly producing the documents and identifying the same. When the property lie in the very same survey number and when they lie contiguously, the question of identification especially in the backdrop of the evidence available is necessary to dispose of the matter. It does not mean that the defendants have adopted a correct method. They have also been negligent. Therefore, I make it clear that irrespective of the result of the suit the expenses for identifying the property with reference to the defendants' documents also shall FAO No.211/05 3 be at the expenses of the defendants and not that of the plaintiffs. The plaintiffs can file work memo also before the Commissioner and that also can be considered by the Commissioner. Therefore, I dispose of the appeal with a direction that the property has to be identified with respect to the documents of title of defendants also. If the defendants did not choose to produce any documents of title within the time fixed by the court, issuance of Commissioner is not necessary and the court, with the available materials on record, can proceed and dispose of the case. I also make it clear that the expenses for the Commissioner, if issued, shall be made by the defendants irrespective of the result of the suit. M.N.KRISHNAN, JUDGE vps FAO No.211/05 4