IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 SA.No. 529 of 1998(C) ------------------------------- AS.12/1996 OF SUB COURT, NEDUMANGAD OS.493/1988 OF PRL. MUNSIFF COURT, NEDUMANGAD .................... APPELLANTS/APPELLANTS/PLAINTIFF: ----------------------------------------------------------- 1. DEVAKI RADHA, USHALAYAM, PULLAYIL DESOM, KODUVAZHANOOR VILLAGE, FROM AYIRAM VALLY KUNNU PUTHEN VEEDU, ARUVIPURAM, ANAKUDI MURI, VAMANAPURAM VILLAGE. 2. USHA, D/O.RADHA -DO- -DO-. 3. R.S. KUMARI CHANDRIKA, D/O.RADHA OF -DO- -DO-. 4. R.S. KUMARI SASIKALA, D/O.RADHA OF -DO- -DO-. 5. R.S. PRADEEP, S/O.SREEDHARAN OF -DO- -DO-. 6. R.S. DILEEP, S/O.SREEDHARAN OF -DO- -DO-. BY ADV. SRI.P.PARAMESWARAN NAIR, SMT.SREELATHA PARAMESWARAN NAIR. RESPONDENT/RESPONDENT/DEFENDANT: ---------------------------------------------------------------- S. CHANDRASENAN, VAIDYA SALA VEEDU, EDANAVILAKOM, NEAR MITHRUMMALA SCHOOL, ANAKUDI MURI, KALLARA VILLAGE. BY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.BHAVADASAN, J. ------------------------------------- SA No.529 of 1998-D ------------------------------------- Dated this the 23rd day of February 2011 Judgment The plaintiff in OS No.493/88 before the Munsiff's Court, Nedumangad, who was non-suited by the courts below, is the appellant. 2. The suit was one for declaration of title and for injunction. The plaintiff laid claim to two items of properties namely, 10 cents of land comprised in RS No.3402/2 (old Survey No.2680/434) and 5 cents of land comprised in RS No.3434 (old Survey No.2680/435) of Vamanapuram village. The plaintiff claimed right to the suit properties on the basis of Exts.A1 and A6 produced before the lower appellate court. The allegation was that the defendant, who has no right over the suit property, is trying to trespass into the suit property and trying to interfere with the right and title of the plaintiff. Therefore, the suit was laid for necessary reliefs. SA 529/98 2 3. The defendant resisted the suit and pointed out that going by the description in the plaint, the suit properties are not identifiable. He pointed out that the 10 cents of property comprised in RS No.3402 of Vamanapuram village originally belonged to the defendant's grandfather Kali Pillai Madhavan Pillai, who executed a gift deed in favour of the Kerala Hindu Mission. On 31.07.1978, defendant's mother purchased the said property from the Kerala Hindu Mission. The mother of the defendant executed a gift in his favour in respect of the property obtained by her. He pointed out that the plaintiff has no property anywhere near the property of the defendant. He denied the allegation of trespass and the mischiefs attributed to him. On the basis of the above contentions, he prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A5(a) from the side of the plaintiff. The SA 529/98 3 defendant had DWs 1 and 2 examined and Ext.B1 marked. Exts.C1 and C1(a) are the commissioner's report and plan. 5. On an appreciation of the evidence, the trial court came to the conclusion that the title of the plaintiff over the 10 cents of property comprised in RS No.3402 is not disputed. However, it was found that the title to the five cents of property comprised in RS No.3434 was not established as the plaintiff had not produced any document in support of his claim. Accordingly, the suit was dismissed. 6. The plaintiff carried the matter in appeal as AS No.12 of 1996 before the Sub Court, Nedumangad. Before the lower appellate court, the plaintiff produced the document of title in respect of the five cents of property comprised in RS No.3434. The document which the plaintiff produced, stood in the name of his mother. The lower appellate court, accepting the finding of the trial court regarding the identify of the property, went on to hold that the plaintiff did not prove that after the death of his mother, SA 529/98 4 he had obtained the property covered by Ext.A6 and accordingly dismissed the appeal. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.When the plaintiff claims title and possession over 15 cents of land and when the defendant contended that 5 cents out of 15 cents is owned and possessed by him and the rest is with strangers without naming who it is, is it correct for the lower court to dismiss the suit relating to 10 cents for reason of non-joinder of necessary parties ? 2.On whom lies the burden of proof when the defendant says that he has got a decree declaring his title and possession over a portion of plaint schedule in another suit to prove that the properties are one and the same when the plaintiff denies it. 3.Whether the tax receipt issued from village office showing wrong survey number and sub number will have no evidentiary value over the documents of title deed SA 529/98 5 when the sub number is not appended to the survey number. 8. As already noticed, the suit relates to two items of properties, namely, 10 cents of land comprised in RS No.3402/2 (old Survey No.2680/434) and 5 cents of land comprised in RS No.3434 (old Survey No.2680/435) of Vamanapuram village. The plaintiff had taken out a commission. It is true that the commissioner had reported that going by the description in the plaint, it is not possible to identify the property. However, the commissioner, in his sketch marked as Ext.C1(a), had showed 15 cents of property, which the plaintiff claimed to be belonging to him. It has been reported by the commissioner that the said 15 cents lie as a compact plot, within well defined boundaries and it seems to be in the possession of a single person. It may be noticed here that the trial court, in paragraph 5 of its judgment, found that there is no dispute regarding the title of the plaintiff over the 10 cents of property mentioned above. It has come out in evidence that there was a prior SA 529/98 6 suit between the parties as OS No.505/88. In the said suit, the defendant herein was the plaintiff and the plaintiff herein was the defendant. That related to the property comprised in Survey No.3434. That went in favour of the plaintiff in the suit, who is the defendant herein. A reading of the judgment of the courts below does not indicate that the plaintiff in the present suit is laying claim over the property covered by OS No.505/88. 9. If, as a matter of fact, there was any error in the identification of the property, the plaintiff ought to have been given an opportunity to have the property properly identified and get a proper sketch and report. It is significant to notice that the commissioner's report does not indicate that the property identified by him and shown in his report is in the possession of strangers. Even assuming others are in possession, the plaintiff ought to have been given an opportunity to implead proper parties to the suit before dismissing the suit for non-joinder of parties. Apart from the above fact, before the lower appellate court, the SA 529/98 7 appellant had produced document of title in respect of the five cents comprised in RS No.3434 as well. As per the document produced by the appellant, it was shown that the acquisition was made by the mother of the appellant. The appellant had pleaded that consequent on the death of his mother, he had obtained the property. Strangely enough, the lower appellate court says that since the appellant has not proved that he had obtained the property, no relief could be granted to him. 10. At worst, what could be said is that the plaintiff is a co-owner. Even assuming there are other children to Mathevi Kartiayani, who is the mother of the appellant, there is nothing to indicate that the plaintiff was claiming in derogation of the rights of the other co-owners, even assuming there is any, so as to non-suit her on that ground. 11. As already noticed, if there was any error in the identification of the property, the plaintiff ought to have been given an opportunity to get the property properly SA 529/98 8 identified. It is felt that the judgment and decree of the courts below are clearly unsustainable in law and the matter requires reconsideration at the hands of the lower appellate court. Accordingly, the appeal is allowed. The impugned judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated herein above. The parties shall appear before the lower appellate court on 30.03.2011. They may adduce further evidence, if need arises. The lower appellate court shall make every endeavour to dispose of the case as expeditiously as possible, at any rate, within six months from the date of appearance of parties before it. P.Bhavadasan, Judge sta SA 529/98 9 SA 529/98 10