IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 AS.No. 796 of 1998() ----------------------------- OS.117/1993 of SUB COURT, QUILANDY .................... APPELLANT(S): PLAINTIFF IN OS. ------------------------------------------------ KADALAMBATHOOR ASSIYA, AGED 69 YEARS, D/O. PACKRAN, RESIDING AT THERUVANGATH ALLIAS NELLIKKUNNUMMAL, KARUVANCHERY AMSOM, CHELLATTUMPOYIL DESOM, VADAKARA TALUK. BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): DEFENDANTS IN SUIT. ---------------------------------------------------------- 1. PULUVAPPELLI THOTTATHIL MOIDEEN, S/O. MAMMED, AGED 72 YEARS, RESIDING AT THALAKANDIYIL, KARUVANCHERY AMSOM, CHELLATTUMPOYIL DESOM, VADAKARA TALUK. 2. NELLIKUNNUMMALAYIL AMMED, AGED 60 YEARS, S/O. MOIDEEN, RESIDING AT KARUVANCHERY AMSOM, CHELLATTUMPOYIL DESOM, VADAKARA TALUK. 3. ALUKKAPURATH BIYYATHU, AGED 55 YEARS, D/O. MOIDEEN, RESIDING AT KARAYAD AMSOM DESOM OF QUILANDY TALUK. 4. KURUNTHODI MEETHALE PULIKOOL AYISSA, D/O. MOIDEEN, AGED 50 YEARS, RESIDING AT MANTHARATHOOR AMSOM DEOSM OF VADAKARA TALUK. 5. KOOMULLAMKANDI MARIYAM, AGED 47 YEARS, D/O. MOIDEEN, RESIDING AT KARUVANCHERY AMSOM, CHELLATTUMPOYIL DESOM OF VADAKARA TALUK, A.S. NO.796/1998 6. PONMERI AMINA, AGED 44 YEARS, D/O. MOIDEEN, RESIDING AT KARUVANCHERY AMSOM, CHELLATTUMPOYIL DESOM, VADAKARA TALUK. 7. MALAYIL ABDULLA, AGED 41 YEARS, S/O.MOIDEEN, RESIDING AT KARUVANCHERY AMSOM, CHELLATTUMPOYIL DESOM, VADAKARA TALUK. 8. VADAKKE NELLIKUNNUMALAYIL MAMA, D/O. MOIDEEN, AGED 38 YEARS, RESIDING AT KARUVANCHERY AMSOM, CHELLATTUMPOYIL DESOM, VADAKARA TALUK. 9. KURUMTHODI VADAKKECHALIL KATHEESA, D/O. MOIDEEN, AGED 36 YEARS, RESIDING AT MANTHARATHOOR AMSOM DESOM OF VADAKARA TALUK. 10. MALAYIKKUNI PATHU, W/O. MOIDEEN, AGED 50 YEARS, RESIDING AT KARUVANCHERY AMSOM, CHELLATTUMPOYIL DESOM OF VADAKARA TALUK. 11. MALAYILKUNI VEETTIL NASEEMA (MINOR) REP.BY MOTHER AGED 12 YEARS, D/O. MOIDEEN, RESIDING AT 10TH RESPONDENT DESOM OF VADAKARA TALUK. 12. MALAYIL VEETTIL NISAR (MINOR), REP.BY MOTHER 10TH RESPONDENT AGED 10 YEARS, S/O. MOIDEEN, RESIDING AT KARUVANCHERY AMSOM, CHELLATTUMPOYIL DESOM OF VADAKARA TALUK. BY ADVS. SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/10/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NO.796 OF 1998 ............................................. Dated this the 18th day of October, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Koyilandy in O.S.No.117/1993. The suit is one for declaration of title and recovery of possession. A declaration is sought to set aside the decision in O.S.No.24/1989 and for declaration of title and to grant recovery of possession on the strength of title. The trial court on an exhaustive consideration had dismissed the suit with full costs. The court also entered into a finding stating that the suit is barred by res judicata. The brief facts necessary for the disposal of the appeal are summarised as follows: 2. It is the case of the plaintiff that the property described in the plaint belonged to Othayoth thavazhi and one Uluvapalli Moideen took lease of the property through one Chandu Nambiar in 1909. He died and on his death, it devolved upon his brother Ammad. This Ammad had renewed the lease from the then Karanavar Kelappan Nambiar as per : 2 : A.S.NO.796 OF 1998 Ext.A1 in 1921. Thereafter this Ammad by virtue of Ext.A2 in 1925 assigned the right to Kelappan Nambiar. Kelappan Nambiar in turn in 1929 by virtue of Ext.A3 assigned the right to his brother Raman. This Raman in the year 1935 assigned the right over the property to Malayil Moideen (the second defendant) and in 1947, by Ext.A4 the 2nd defendant had assigned the right to one Abdulla his brother and the husband of the plaintiff in 1952. Abdulla transfered the property in favour of the plaintiff and others by virtue of Ext.A5. By Exts.A6 and A7 children of the plaintiff surrendered their right in favour of the plaintiff. So, the plaintiff is claiming right and title over the property mainly on the basis of Ext.A5 and subsequently by virtue of the release deed in her favour by Exts.A6 and A7 as an absolute owner of the property. 3. The contesting defendants would contend that the property described in the plaint schedule comprised in R.S.No.25/4 was taken on an oral lease by the 1st defendant in the year 1944 or 1945 and thereafter by virtue of Ext.B1 renewed the lease in 1965 and thereafter from the said : 3 : A.S.NO.796 OF 1998 property, he had assigned 30 cents in favour of the 2nd defendant in 1969 and thereby is claiming the balance extent over the property. It has to be stated that the present first defendant moved a suit as O.S.No.24/1989 for an injunction which was initially dismissed by the trial court but was reversed in appeal by the appellate court and confirmed by this Court in S.A.No.214/1992. The relevant documents are Ext.B7 to Ext.B11. So by that, the courts have found that the possession was not with the present plaintiff in the suit. There was another suit - O.S.No. 60/1984 wherein the court did not find in favour of the present plaintiff. But, all these suits were only for injunction and the courts have also made it clear especially in A.S.No.183/90 and S.A.No.214/92 that injunction being the only relief, question of title need not be gone into. So the other suit was also for injunction and therefore one has to state that the question of title has not to be gone into in such cases and so the principles of res judicata will not apply by virtue of those decisions. So, I hold that the suit is not barred by res judicata at all. : 4 : A.S.NO.796 OF 1998 4. The crux of the matter is whether the plaintiff is having title or possession over the property and if so, she is entitled to get recovery of possession. As stated by me earlier, the plaintiff traces her title right from 1947 for the reason that it was an assigned deed executed by the second defendant in favour of her husband Abdulla. It was this Abdulla who had transferred his right in favour of her. The 1921 document Ext.A1, 1925 document Ext.A2 and 1929 document Ext.A3 are all documents to show that there had been a lease by Othayoth thavazhi in favour of the predecessor in interest of the plaintiff in relation to the property comprised in old survey No.5/3 and resurvey No.25/6 having the measurement of 32x43 (six feet koles). Even Ext.A4 does not show the extent, but the kole measurement is very well available. In the anterior title deeds, the reference is to survey No. 11/11 both in Exts.A3 as well as in A2. In Ext.A7 which is a deed of joint assignment executed by the daughter in favour of the plaintiff, the extent is shown as 1 acre and 14 cents and the old Survey Number as 5/3 and New Survey Numbers as : 5 : A.S.NO.796 OF 1998 25/6 and 25/4 and it is further stated that it is 30 Ares in 25/6 and 16.1 Ares in 25/4. 16.1 Ares by no stretch of imagination can be 87 cents of property. So for the first time, in the document of the plaintiff the resurvey No.25/4 appears only in the year 1974. None of the documents prepared prior to 1974 takes in Resurvey No.25/4. For this, I have the privilege of referring to the Adangal extract produced by the parties. The Adangal extract will show that old Sy.No.5/3 is further subdivided into Re.Sy.Nos.25/6 and 25/4. The total extent of Re.Sy.No.25/4 is shown as 87 cents and that of 25/6 is shown as 86 cents. The description of 25/4 in Ext.A9 is പറ and in 25/6 no description is given but it is classified as sthiram punja. These two survey numbers belonged to Othayoth Govindan Nambiar. Until and unless the plaintiff is able to establish that she has got title and possession over the property of 87+86, the question of proving her title is in difficulty as well as relief of recovery of possession. So when confronted with in such a difficult situation, the learned young counsel appearing for the plaintiff had attempted to rely upon a plan submitted by the : 6 : A.S.NO.796 OF 1998 Commissioner in a previous suit which has been marked as Ext.B4. A reference to Ext.B4 with respect to the boundaries, I feel that it will not solve the problem of the plaintiff. The western boundary of the property assigned in favour of the plaintiff is shown as ooduvazhi. Even if Ext.B4 is accepted, we do not find any ooduvazhi on the western side of the property claimed by the plaintiff. On the other hand, the description in the defendants' document would reveal that they are having property in between the Malaparamba and Poomullakandiparamba. It is true that Poomullakandiparamba does not extend to the southern side as per the plaint but there are no materials to show where exactly it starts. Further, even according to the plaintiff's document, the plaintiff is not having 87cetns of property in resurvey No.25/4. Ext.A7 which for the first time relates to or refers to 25/4 only shows an extent of 16.1 Ares. So the case of the plaintiff that she is entitled to 87 cents of land in R.S.No.25/4 cannot by any stretch of imagination be accepted. The plaintiff has no case that somewhere in between those plots come this property. The other thing is, : 7 : A.S.NO.796 OF 1998 in a suit for recovery of possession on the strength of title, it was the responsibility of the plaintiff to take out a commission and to identify the property with respect to her title deed as well as defendants' title deed and fix the plaint schedule property and when she succeeds in bringing to the notice of the court that the said property comes within the description in the document relied on by her, she will be entitled to have the title. I am conscious of the fact that decisions are to the effect that the property need not be identified only with respect to the description or survey number. The courts have held that when there is a discrepancy between the extent and the boundaries, the boundaries will prevail. But at the same time the courts have cautioned that the most infallible method is to be adopted for identifying the property. Unfortunately the plaintiff has closed her eyes in getting the property identified with respect to her title deed. Concurrently the courts have found out against her regarding possession as well. So, this creates all the more suspicion. The learned young counsel also would submit that a chance be given to : 8 : A.S.NO.796 OF 1998 identify the property with respect to the documents. The parties have started litigation for the last 3 to 5 decades and further it was the imperative duty of the plaintiff to have identified the property in a suit of this nature. She had not done it. Therefore the court cannot extend its hands to fill up the lacuna in the plaintiff's case and therefore I have to hold that the plaintiff has not succeeded in proving her title over the property. Therefore she is not entitled to recovery of possession on the strength of title. Therefore the appeal fails and the same is dismissed, but under the circumstances with out any order as to costs. M.N. KRISHNAN, JUDGE. cl : 9 : A.S.NO.796 OF 1998 M.N. KRISHNAN, J. ........................................... A.S.NO.796 OF 1998 ............................................. 18th day of October, 2010. J U D G M E N T