IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 AS.No. 598 of 1997(E) ----------------------------- OS.276/1991 of PRL.SUB COURT, KOZHIKODE .................... APPELLANT(S): PLAINTIFF IN OS. NO.276/1991 ------------------------------------------------------------------ PILACHERY CHANDAN KUTTY, S/O. RAMAN, AGED 50 YEARS, RESIDING AT EYYAD AMSOM, VEERAYAMBRAM DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.P.K.SURESH KUMAR RESPONDENT(S): DEFENDANTS 2 TO 13 IN OS. 276/1991. --------------------------------------------------------------------------------- 1. POYIL ILLATH RAJAN NAMBI, S/O. NARAYANAN UNNI NAMBI, AGED 44 YEARS, RESIDING AT NANMANDA AMSOM DESOM, KOZHIKODE TALUK.(DIED) 2. ODAYOTH PARAMBIL RAMANKUTTY, S/O. KORAN, AGED 39 YEARS, DO. DO. 3. PADINJARE POYIL RAGHAVAN, S/O. KANARAN, AGED 56 YEARS, RESIDING AT PARALATTUMMAL DO. DO. 4. ODAYOTH PARAMBIL KORAN, S/O. RAMAN, AGED 69 YEARS, DO. DO. 5. ODAYOTH PARAMBIL KELAN, AGED 64 YEARS, DO. DO. 6. VELAPPAN VEETTIL RAGHAVAN NAIR, S/O. GOVINDAN NAIR, AGED 69 YEARS, DO. DO. 7. SMT.UNNIMAYA MANAYAMMA, W/O. DECEASED NARAYNAN UNNI NAMBI, AGED 69 YEARS, RESIDING AT NAGATHINGAL HOUSE, DO. DO. AS. NO.598/1997 8. SMT.SATHYABHAMA MANAYAMMA, W/O. RADHAKRISHNA NAMBI, AGED 44 YEARS, RESIDING AT KARAT HOUSE, DO. DO. 9. SMT.SULOCHANA MANAYAMMA, AGED 40 YEARS, W/O. SREEDHARAN NAMBOODIRI, RESIDING AT CHELAPPURATH HOUSE, DO. DO. 10. SMT.INDIRA MANAYAMMA, AGED 36 YEARS, RESIDING AT NAGATHINGAL HOUSE DO. DO. 11. SMT.RATHANAKUMARI @ KOMALA MANAYAMMA AGED 34 YEARS, W/O. NARAYANAN NAMBOODIRI, PUTHIYEDATHKANDY HOUSE DO. 12. SRI.PRAKASAN NAMBI, AGED 32 YEARS, RESIDING AT NAGATHINGAL DO. DO. *ADDL. R13 TO R16 IMPLEADED. 13. AMMINI, ANTHARJANAM, W/O. RAJAN NAMBI, POYIL ILLAM, POST NANMANDA, VIA NANMANDA, KOZHIKODE DIST. 673 613. 14. RANJITHA, D/O. RAJAN NAMBI, W/O. NARAYANAN NAMBOODIRI, MANNAZHI MAN, CHERUTHURA, SHORNUR. 15. TANOOJA, D/O. RAJAN NAMBI, POYIL ILLAM, NAGATHINGAL, POST NANMANDA, VIA. NANMANDA , KOZHIKODE DIST. 673 613. 16. RENJITH, S./O. RAJAN NAMBI, POYIL ILLAM, NAGATHINGAL, POST NANMANDA, VIA, NANMANDA, KOZHIKODE DIST. 673 613. *LEGAL REPRESENTATIES OF THE DECEASED IST RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 13 TO 16 AS PER ORDER DTD. 30.10.2008 ON IA. 892/2008. R1 TO R6 BY BY ADVS. SRI.T.SETHUMADHAVAN R7 TO R9 BY ADV.SMT.PRABHA R.MENON R12 BY ADV. SMT.P.S.SHEEJA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/08/2010, ALONG WITH AS NO. 162 OF 1999 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... A.S.NO.598 OF 1997 & A.S.No.162 of 1999 ............................................. Dated this the 20th day of August, 2010. J U D G M E N T A.S.No.598/1997 is preferred against the judgment and decree in O.S.No.276/1991 and the other appeal is preferred against the judgment and decree in O.S.No.284/1993. The suit is one for damages. The plaintiff in O.S.No.276/1991 is claiming right over one acre and 90 cents of land in R.S.No.245/1 as per the revenue records and referred to as R.S.No.250/1 in the title deed of the plaintiff. In O.S.No.284/1993 the plaintiff therein is claiming title over 70 ¾ cents of land in R.S.No.150/1 which is referred in her document in R.S.No.241/1. The case of the plaintiff in O.S.No.276/1991 is that the defendants had trespassed into the property and cut and removed the rubber plants situated in his property and thereby had incurred a damage of Rs.27,733.35 and hence a suit for the same. In the other suit, it is submitted that three rubber plants and cadjen shades provided to 242 rubber trees were also destroyed. : 2 : A.S.NO.598 OF 1997 & A.S.No.162 of 1999 The plaintiff has claimed for damages. 2. In both the suits, the defendants would contend that the plaintiffs are not having any right over the property and the property having an extent of 3 acres and 13 cents belonged to the temple and it is used for the purpose of conducting ceremonies in the temple. 3. In the trial court, PWs 1 to 4 and DWs 1 to 3 were examined, Exts.A1 to A32 and B1 to B9 were marked. On a consideration of the materials, the trial court had dismissed the suit. It is against that decision, the present appeals are preferred. 4. Heard the learned counsel appearing for both sides. The learned counsel appearing for the respondents in these appeals would submit that with respect to the property covered by O.S.No.805/1989, a suit for recovery of possession was filed and ultimately by the order of this Court it is remanded and pending consideration before the court below. Against the order of remand, an appeal was preferred and it was dismissed. In order to entitle the plaintiffs in these suits to claim damages, they have to establish that the rubber : 3 : A.S.NO.598 OF 1997 & A.S.No.162 of 1999 trees alleged to be damaged were situated in their property and that damage has been caused by the defendants. The learned counsel for the appellants would submit before me that as Exts.A1 to A32 were produced would convincingly establish the title of the plaintiffs in the case. But the contention of the parties has made it imperative for the plaintiffs to prove that the trees which are cut and removed form part and parcel of their immovable property and unless they are able to establish that plants and trees were standing in the property covered by their title deed, the plaintiffs will not be entitled to any damages. It has come out in evidence before the court that survey numbers 250/1 as well as 245/1 takes in a huge extent of property. It can also be seen that the plaintiffs' document shows the number as R.S.250/1 but in the revenue records the number is R.S.245/1. Similarly with respect to the wife's property the number is shown as 150/1 in the revenue records whereas in the document it is 250/1. 5. I am conscious of the fact that the property can be identified with respect to the description, boundaries, survey : 4 : A.S.NO.598 OF 1997 & A.S.No.162 of 1999 number and extent. The courts have also pronounced that when there is discrepancy between the survey number, extent etc, it will be the boundaries that will prevail. Ultimately it has also been laid down in facts and circumstances of each case, the most infallible method is to be resorted to identify the property. In these cases the defendants are claiming 3 acres and 13 cents of property and would contend that the plaintiffs are claiming right over that property. According to the defendants, it is part and parcel of the temple property where there are sub deities and inhabitants of the locality gathered there to perform the rituals in the temple. So when both the parties are claiming property under the very same survey number and there is dispute with respect to the title of the plaintiff over the property, the plaintiffs should have identified the property covered by the document and should have satisfied the conscience of the court that rubber trees stood in the property which is covered under their document. Just because number of documents are thrust upon court showing that the plaintiffs are having title over some property, it : 5 : A.S.NO.598 OF 1997 & A.S.No.162 of 1999 cannot lead to the conclusion that their title deed covers the disputed property. So as rightly held by the trial court, non identification of the property with respect to the title deed is fatal and therefore in such cases damages cannot be granted. 6. The learned Subordinate Judge has also considered the evidence available. It was contended before the court below that the first defendant had not visited the property for 15 years and the second defendant used to visit the property only once in a year. The court also found that though there are innumerable number of inhabitants in the locality, the plaintiffs have not chosen to examine any independent witness. One of the witnesses examined was PW2 who was the cousin of the plaintiffs'. The court felt that his evidence cannot be accepted at all. So also the court below refused to accept the evidence of PW3 the alleged labourer. The court also found that persons residing near the disputed property were Bapputy master, Viswanathan and Sudhakaran, but none of them were examined before the court. So the court below felt that the plaintiffs have not succeeded in proving that defendants had committed : 6 : A.S.NO.598 OF 1997 & A.S.No.162 of 1999 the act of damages. 7. Therefore, I hold that there is nothing to interfere with the decision rendered by the trial court in both the suits and so the appeals are devoid of any merit and are dismissed but without costs. But I make it clear that the title to the property has not been decided in these cases and therefore it will not prevent the plaintiffs to establish their title in a properly instituted suit or any other pending matter. Both the appeals are disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 7 : A.S.NO.598 OF 1997 & A.S.No.162 of 1999 M.N. KRISHNAN, J. ........................................... A.S.NO.598 OF 1997 & A.S.No.162 of 1999 ............................................. 20th day of August, 2010. J U D G M E N T