IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 SA.No. 833 of 2001() ---------------------------- AS.488/1994 of SUB COURT,NEYYATTINKARA OS.109/1986 of PRL.M.C.,NEYYATTINKARA .................... APPELLANT(S): APPELLANT/DEFENDANTS 1 &2 --------------------------------------------------------------------- 1. APPAS NADAR YESUDASAN NADAR, CHEMMANNUVILA PUTHEN VEEDU, VELLARADA DESOM, KUNNATHUKAL VILLAGE, PANACHAMOODU P.O., NEYYATTINKARA TALUK. 2. GNANAMMA BABY, ALIAS KOUSALYA, DO. DO. BY ADVS. SRI.S.JAMES VINCENT SRI.R.GOPAN RESPONDENT(S): RESPONDENTS 1 & 2 & ADDL. RESPONDENTS 4 TO 8/ -------------------------PLAINTIFF, 3RD DEFENDANT, LRS OF DECEASED 4TH DEFENDANT. 1. C.I.WINCENT, CHERUPUSHPAVILASOM BUNGALOW, MULLILAVILA, VELLARADA DESOM, KUNNATHUKAL VILLAGE, KUDAYAL P.O., NEYYATTINKARA TALUK. 2. CHELLAPPAN NESAMONY ALIAS BALAKRISHNAN, THERIMMAVILAKATHU VEEDU, MULLILAVILA, DO.DO. 3. ESILY LILLY CHERUPUSHPAVILASOM BUNGALOW, MULLILAVUVILA, KARIKKAMANKODE, KUNNATHUKAL VILLAGE, KUDAYAL P.O., NEYYATTINKARA TALUK. 4. ESILY ELIZABETH, DO. DO. 5. ESILY MARY, DO. DO. 6. ESILY CHRISTINAL, DO. DO. 7. ESILY CHERUPUSHPAN, DO. DO. R1 BY ADV. SRI.PRAVEEN VYASAN SRI.RAJESH.R. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 833 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2010. JUDGMENT The defendants in O.S. 109 of 1986 before the Principal Munsiff's Court, Neyyattinkara, who suffered a decree and which was confirmed in appeal are the appellants. The parties and facts are herein after referred to as they are available before the trial court. 2. The suit was one for declaration of title, possession, for putting up of boundary and for other ancillary reliefs. According to the plaintiff B and C schedule properties are portions of plaint A schedule property. According to him, the northern ¾ portion comes to about 1.50 acres, which belongs to Esili and defendant No.4, who are the parents of the plaintiff. In respect of plaint B schedule property there was a mortgage, which was redeemed by the parents of the plaintiff as per deed No.681/55. One half share of Esili in SA833/2001. 2 B schedule property is C schedule and C schedule property was sold to the plaintiff by Esili by Ext.A2 dated 5.2.1986. Ever since the sale deed in his favour, the plaintiff is in absolute possession and enjoyment of the property. The defendants have no manner of right over the plaint schedule property. When the plaintiff was away from the place, defendants 1 to 3 trespassed into the property and reduced a portion of the property into their possession. There is no well demarcated boundary between C schedule and the property on the northern side, which belongs to defendants 1 to 3. Plaintiff therefore moved the suit for recovery of possession of plaint C schedule property and for putting up boundary between C schedule property and the property of the defendants. 3. Defendants 3 and 4 remained ex parte. First and second defendants contested the suit. They disputed the description of plaint B and C schedule properties. According to them, C schedule property is a non-existing one. They also disputed the title of Esili in respect of B SA833/2001. 3 schedule property. According to them, their property is comprised in Sy. No.492/9, whereas the property claimed by the plaintiff lies in Sy. No.492/8. There is a boundary wall between the properties having a height of 2 feet, that is 50 years old. The boundary contains Anakattavazha plants through the entire boundary. The allegations to the contrary in the plaint are denied. They also set up their title to the property claimed by them. On the basis of these contentions, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The plaintiff had Exts.A1 to A3 produced. Defendants did not adduce any evidence. The commissioner was examined as D.W.1 and Exts.C1 and C2 are the commission report and plan. 5. Holding that defendants 1 and 2 have not specifically denied the title of the plaintiff, and based on the commission report, the suit was decreed by the trial court. The appellate court confirmed the same. SA833/2001. 4 6. The following questions of law are seen formulated in the Memorandum of Second Appeal: “1. The defendants in order to prove their case, having applied to the trial court by I.A. No.2398/97 for a certificate to the Director of Survey and Land Records for the issuance of the plan relating to Survey Nos.492/8 and 492/9, and the court passed an order on 29.7.1987 for the issuance of the plan relating to survey No. 492/8 only, which was rejected by the Director on the ground that the Survey Plan was not available, and in appeal the appellants again filed I.A. No.574/97 for a certificate to the Tahsildar, Neyyattinkara for issuing the Re-survey plan and Basic Tax Register of Survey Nos.492/8 and 492/9, which was filed on 30.7.1998 and allowed by the learned Subordinate Judge on 2.8.1997, and which was produced before the Tahsildar on 12.1.1999, as a result of which the Survey Plan was issued by the authorities only on 16.8.2001, and could not be produced even before the lower appellate court, whether the courts below were correct in SA833/2001. 5 decreeing the suit in view of the fact that sufficient and effective opportunity was not provided to the defendants to prove their case? 2. Whether the courts below are correct in decreeing the suit on the erroneous conclusion that the defendants have admitted the title of the plaintiff to the suit property, whereas in fact, the defendants have categorically denied the plaintiff's title to the suit property in the written statement, disregarding the facts noted by the Commissioner in Ext.C1 report to the effect that there is an age-old manthara between the C schedule property and the property had its north which belongs to the defendants, without identifying the lie and extent of the suit property with reference to the Survey Plan and other basic Revenue records.” 7. Learned counsel appearing for the appellants pointed out that the courts below have grievously erred in granting a decree in favour of the plaintiff. The property had not been properly measured and it is conceded by the commissioner that title deeds were not referred to while measuring the property and preparing the sketch. Learned SA833/2001. 6 counsel also pointed out that the court below omitted to note that the properties belonging to the plaintiff and defendants are comprised in two different numbers and there is a survey boundary separating the two properties. The appellants also pointed out that inspite of their best efforts, even after getting suitable orders from court they were unable to get certain essential documents, which they received only after the disposal of the suit and appeal and it is pointed out that viewed from any angle, the decrees are unsustainable in law. 8. Per contra, learned counsel appearing for the respondents contended that there was no specific denial of the title of the plaintiff by the defendants and the commission report is very clear in this regard. The commissioner has located the boundary between the properties of the plaintiff and the defendants and there are no grounds to interfere with the decree. SA833/2001. 7 9. After hearing both sides, and going through the records, it is felt that the judgments and decrees of the courts below are clearly unsustainable in law. The observation of the court below that title of the plaintiff has not been disputed by the defendants is incorrect. In paragraphs 4, 5 and 6 of the written statement there were specific denials of title. It is also found that the properties have not been properly identified. There is a total misreading of the commission report and finally the courts below have not taken note of Ext.A3, the survey sketch produced by the plaintiff himself. 10. Coming to the first contention, as already noticed, there is a specific denial of title of the plaintiff by the defendants in respect of C schedule property. In the light of this specific denial and claim of title and possession by the defendants, the courts below should have insisted that the property be properly identified. It is true that there is a commission report and plan. But the commission report shows that it was based on the lie of the property that the SA833/2001. 8 measurements have been taken and not with respect to the title deeds. That is indeed strange. Since there is a dispute with regard to the title of the property, its identity and possession, one would have expected the commissioner to measure the property with respect to the recitals in the respective title deeds. The defendants have not produced any document. But that does not mean that the defendants' property need not be identified. 11. One may here note that when the suit is one based on title, the entire burden is on the plaintiff. The mere fact that the defendants have not produced any document or the weakness in the defence case will not automatically enure to the benefit of the plaintiff. 12. Both the courts below have placed considerable reliance on the commission report. The trial court observed that A schedule property has been identified as CDEF and C schedule as CDE having an extent of 18.652 cents. It is interesting to note that the extent of property shown in the commission report and the plan varied SA833/2001. 9 considerably. The trial court takes note note of the fact that the commission report has mentioned that there is a well laid boundary along with ED line, which was seen destroyed recently. The Sub Court also concurred with the trial court and thus decree was passed. 13. First of all one has to note that the definite case of the defendants was that the property belonging to the plaintiff is comprised in Sy. No.492/8 and their property is comprised in Sy. No.492/9. The plaintiff lays claim to the suit property based on Exts.A1 and A2. On going through the plaint schedule description, it could be seen that the property claimed by the plaintiff lies on the southern side of the defendants' property. It is sad to note that both the courts below have misread the commission report. There is nothing in the commission report to show that DE line is the survey boundary between Sy.Nos.492/8 and 492/9. The boundary shown seems to be wrong when compared with Ext.A3 survey plan produced by the plaintiff himself. A comparison of the two will show that Exts.C1 and C2 cannot SA833/2001. 10 be correct. Then again one may have a look at the commission report. The commissioner takes note of a visible boundary along EC line. In his evidence also he asserts the same. According to him, he has given details of the boundary, but it is conspicuously missing. Whatever that be, it is evident that there is a boundary along EC line. If that be so, the plaintiff has necessarily to explain how his property can be said to extend to the line ED shown in Ext.C2 plan. It is here the importance of not locating the defendants' property arises for consideration. It is reported by the commissioner and spoken to by him that along EC line there is a well laid boundary, which is nearly 10 years old even though the defendants may say that it has been there for the last 50 years. Whatever that be, it is felt that there is clear distinct boundary along the said line. 14. It is conceded by the commissioner that measurements were not made on the basis of the documents, but the property was located as seen on site. SA833/2001. 11 That may not be sufficient in a suit for recovery of possession on the strength of title, when the defendants specifically dispute both. 15. The appellants have produced several documents before this court, which prima facie would show that the sketch prepared by the commissioner may not be quite correct. The appellants have also given cogent reasons as to why they could not produce those documents earlier. At any rate, it is felt that there is no proper consideration of the case and the matter needs a second look. In the result, this appeal is allowed, the impugned judgments and decrees of the courts below are set aside and the matter is remanded to the trial court for fresh disposal in accordance with law and in the light of what has been stated above. Parties shall appear before the court below on 8.9.2010. Parties will be at liberty to adduce further evidence in the case. The court below may make every endeavour to dispose of the suit as expeditiously as SA833/2001. 12 possible, at any rate within six months from the date of appearance of the parties. There will be no order as to costs. Office shall send back the records forthwith. P. BHAVADASAN, JUDGE sb.