IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 SA.No. 654 of 1995(C) ------------------- AS.160/1982 of II ADDL. SUB COURT, THIRUVANANTHAPURAM OS.469/1977 of IIND ADDL. MUNSIFF COURT, NEYYATTINKARA .................. APPELLANTS / APPELLANTS / PLAINTIFFS: -------------------------------------------------------------- *1. THANKAYYAN ABANIZAR, CHAMIKUZHI MELE PUTHUVAL PUTHEN VEEDU, IRUMBIL DESOM, NEYYATTINKARA PAKUTHY. (DIED LRS IMPLEADED) 2. THANKAYYAN SAMUEL OF DO. DO. 3. SNEHAPPOO JOICE OF DO. DO. BY ADV. SRI.L.MOHANAN * ADDL. APPELLANTS IMPLEADED *4. P. SULOCHANA, W/O. ABANIZER, RESIDING AT CHAMAKUZHI MELE PUTHUVAL PUTHEN VEEDU, ITRUMBIL DESOM, NEYYATTINKARA VILLAGE. *5. SHEEBA JASMINE, AGED 23, -DO- -DO- *6. SHIBULA JASMINE, AGED 19, -DO- -DO- *7. STERLINE JOHN, AGED 1 8, S/O. ABANIZER, -DO- *LRS OF DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 4 TO 7 VIDE ORDER DATED 8.6.2000 ON CMP.NO. 101/96. RESPONDENTS:- RESPONDENTS 1 TO 9 AND 11 TO 15 AND L.R. OF DECEASED R.10 ---------------------------------------------------------------------------------------------------------------------- WHO DIED AFTER APPELLATE DECREE / DEFENDANTS : ------------------------------------------------------------------------------------ 1. M. MADHUSOODHANAN NAIR, RESIDING AT LAYATHIL VEEDU, KADAVATTARAM DESOM, HAVING ALSO KALATHARATHU VEEDU, IRUMBIL DESOM, NEYYATTINKARA PAKUTHY. ...2/- SA.No. 654 of 1995(C) -2- 2. VELAYUDHAN CHELLAPPAN, RESIDING AT CHAMIKUZHI MELE PUTHEN VEEDU, IRUMBIL DESOM, NEYYATTINKARA PAKUTHY. (**DELETED) 3. YOHANNAN CHELLAYYAN OF DO. DO. 4. RAHEL ALICE, RESIDING AT VETTUKATTU PUTHEN VEEDU, OF DO. DO. * DIED (EXEMPTED) 5. ABRAHAM LEKSHMANAN, CHARUMANKANA MANNEDI VEEDU, VAZHUTHOOR DESOM, NEYYATTINKARA PAKUTHY. ** DELETED 6. YOVAN VELAYUDHAN, RESIDING AT RAJAPPATHAM VEEDU, OF DO. DESOM. ** DELETED 7. CHELLAPPAN THOMSON, RESIDING AT MELE PUTHUVAL PUTHEN VEEDU, IRUMBIL DESOM, NEYYATTINKARA PAKUTHY. ** DELETED 8. GOVINDAN APPUKUTTAN OF DO. DO. (DIED) 9. GNANADEEPAN AMBIYAL, RESIDING AT CHAMIKUZHI PURAYIDATHIL OF DO. DO. (***DIED) LRS IMPLEADED 10. YOVAN ISRAYEL OF DO. DO (***DIED) LRS IMPLEADED 11. YOVAN APPU, CHAMIKUZHI PUTHEN VEEDU OF DO. DO. * DIED (EXEMPTED) 12. LILLY, RESIDING AT CHEKKAL AKKAL VEEDU OF DO. DO. ** DELETED 13. DANIEL TITUS, RESIDING AT CHAMIKUZHI VEEDU OF DO. DO. 14. ESSAY OF DO. DO. (***DIED) LRS IMPLEADED 15. DASAN, S/O. ARULAN DASSAN, CHAMIKKUZHI VEEDU OF DO. DO. (DIED) ** DELETED **IT IS RECORDED AT THE RISK OF THE APPELLANT THAT THE NAMES OF R2, R5, R6, R7, R12 AND R15 ARE DELETED FROM THE PARTY ARRAY, AS THEY ARE NOT NECESSARY PARTIES AS PER ORDER DT. 13/10/04 ON MEMO CF 6751/04 DATED 7/10/04. **THE APPELLANTS ARE EXEMPTED FROM IMPLEADING THE LRS OF DECEASED R4 AND R11 AT THE RISK OF THE APPELLANTS AS PER ORDER DT. 19/2/08 IN I.A. 2151/07. ...3/- SA.No. 654 of 1995(C) -3- ***ADDL. R16 TO R19 IMPLEADED ***16. C. SIMON, CHAMAKUZHI PURAYIDATHIL, IRUMBIL DESOM, NEYYATTINKARA VILLAGE. ***17. C. WILSON, DO. DO. ***18. SARALA, W/O. ESSAY, CHAMIKKUZHI VEEDU, IRUMBIL DESOM, ARUVIPURAM P.O., NEYYATTINKARA. ***19. RABI, S/O. ESSAYY DO. DO. ***ADDL. RESPONDENTS 16 AND 17 ARE IMPLEADED AS THE LRS OF DECEASED 9TH RESPONDENT AS PER ORDER DT. 5/12/03 ON CMP 800/99 AND ADDL. RESPONDENTS 18 AND 19 ARE IMPLEADED AS THE LRS OF DECEASED 14TH RESPONDENT AS PER ORDER DT. 28-11-03 ON CMP 1277/01. ***ADDL. R20 & R21 IMPLEADED ***20. ISREAL NESAN, S/O. ISREAL, CHAMIKUZHI PURAYIDATHIL VEEDU, IRUMBIL DESOM, ARUVIPURAM P.O., NEYYATTINKARA. ***21. ISRAEL ASSARI, DO. DO. ***ADDL. RESPONDENTS R20 AND R21 ARE IMPLEADED AS THE LRS OF DECEASED 10TH RESPONDENT AS PER ORDER DT. 10/12/03 ON CMP 1278/01. BY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2011, .THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ...4/- SA.No. 654 of 1995(C) -4- ORDER ON C.M.P. NO. 2289/2007 IN SA. NO. 654/1995 DISMISSED 20/01/2011 SD/- HARUN-UL-RASHID, JUDGE //TRUE COPY// P.A. TO JUDGE Mn HARUN-UL-RASHID, J. ------------------------ S.A.No.654 Of 1995 ---------------------- Dated this the 20th day of January, 2011. J U D G M E N T Plaintiffs in O.S.No.469/77 on the file of the II Additional Munsiff Court, Neyyattinkara are the appellants. The appeal is directed against the judgment and decree in A.S.No.160/82 on the file of the II Additional Sub Court, Thiruvananthapuram. Suit was filed for declaration of title and possession of the plaintiffs over the plaint schedule property and for consequential injunction. The trial court dismissed the suit. In the appeal preferred by the plaintiffs, the appellate court confirmed the decree and judgment. Parties hereinafter are referred to as plaintiffs and defendants as arrayed in the suit. 2. There are three items scheduled in the plaint. Item No.1 is 85 cents, item No.2 three cents with building and item No.3 is 9¼ cents of land. Originally the suit was filed against the first defendant for a perpetual injunction restraining him from trespassing into the plaint schedule property and committing waste. In the light of the contention raised by the first defendant in the written statement that other persons are also necessary ::2:: S.A.No.654 Of 1995 parties to the suit, additional defendants 2 to 15 were impleaded as per order dated 29.10.1979. Though additional defendants were impleaded, nobody has chosen to appear before the court nor contested the case. Originally, suit was filed for injunction simplicitor. The first defendant denied the title of the plaintiffs. Subsequently, pleadings were amended and prayer for declaration of title was also inserted. Plaintiffs claimed title on the strength of Exts.A2 to A5 and A12 documents. According to the plaintiffs their predecessor-in-interest by name, Thankayyan was the title holder of the property, that on his death the plaintiffs are in possession of the property in continuation of their predecessor-in-interest and that they are the present title holders. 3. Though the suit was filed for declaration for title and injunction, the trial court failed to frame relevant issues for trial. I have gone through the judgment passed by the trial court. Issues were framed as if the suit was one for injunction simplicitor. No issue regarding title was framed by the trial court. Therefore, there was no occasion to consider the claim of the plaintiffs regarding the title of the plaint schedule property. The ::3:: S.A.No.654 Of 1995 trial court considered the only question as to whether the plaintiffs are in possession of the plaint schedule property and as to whether they are entitled to injunction as prayed for. The trial court found that the burden is on the plaintiffs to prove possession holding that they have not discharged their burden. Suit was dismissed finding that the plaintiffs have failed to prove possession and further held that the defendant is in possession of the plaint schedule property as per Ext.B1 delivery list. 4. In the appeal preferred by the plaintiffs challenging the dismissal of the suit, in paragraph 7 of the judgment the lower appellate court observed that the most important aspect to be made mention is that though the plaint was amended by inserting a prayer for declaration of title and possession also, no issue regarding the same was raised by the trial court and no finding was seen entered into regarding title. The appellate court also noticed in the same paragraph that though additional defendants 2 to 15 remained ex-parte, trial court awarded cost to all respondents. The appellate court examined the contentions of the parties in the light of the aforesaid observations. ::4:: S.A.No.654 Of 1995 5. The appellate court on appreciation and evaluation of the evidence on record held that the plaint schedule property is not included in Ext.B1 delivery list, that neither the plaintiffs nor their predecessor are parties to O.S.No.874/1950 and therefore the decree and judgment and consequent delivery proceedings are not binding on the plaintiffs. The appellate court in paragraph 13 observed that the plaintiffs have no case that the executants of Exts.A1, A5 and A8 had right or possession over any plot so as to convey the absolute title and possession thereunder and that the properties were got assigned in the joint names of 5 persons in respect of survey No.146/1 and in the joint names of 4 persons in respect of survey No.146/1 is admitted. The appellate court further observed that the joint title holders ever affected a partition thereby specific portions were allotted to the executants of Exts.a1 to A5 and A12. The court further observed that plaintiffs have no case that the executants of Exts.A1 to A5 and A12 had right or possession over any plot so as to convey the absolute title and possession thereunder and the recitals in the above documents will go to show that they acquired absolute right over specific plots conveyed thereunder ::5:: S.A.No.654 Of 1995 as per any specific documents. The court on the basis of the said observations held that it cannot be found that Thankayyan, the predecessor-in-interest of plaintiffs acquired absolute title over the plaint schedule as per Exts.A1 to A5 and A12. The appellate court held that though the plaintiffs have no absolute title and possession over the entire plaint schedule properties they can claim oodukoor right over the entire property in the plaint schedule survey number basing on documents in their favour of title basing on adverse possession and limitation if they are in actual physical possession of the plaint schedule properties or portions thereof. After entering such finding the appellate court dismissed the appeal stating that there is no pleading or proof in that respect and therefore, the only course open to the court is the direct the plaintiffs to work out their remedy in a properly instituted suit. 6. The trial court did not understand the scope and ambit of the suit. The trial court failed to consider the question of title in a suit for declaration of title and possession. No issues were framed and there was no adjudication on the point. Finding that the trial court has committed mistakes, the lower appellate court ::6:: S.A.No.654 Of 1995 framed the issue regarding the title and proceeded further to decide the case on merits. 7. Trial court proceeded with the suit as if it is a suit for injunction and dismissed the suit finding that Ext.B1 delivery list is binding on the plaintiffs. The lower appellate court took a reverse stand and held that Ext.B1 delivery list is not binding on the plaintiffs. At the same time, the lower appellate court held that the defendants did not got delivery of the entire extent shown in Ext.B1. Learned counsel for the appellants pointed out that in the property delivered as per Ext.B1 there are no building whereas there are 4 plots in the southern portion of survey No.146/1 and 146/5 including the building described in item No.2 and Exts.A6 to A11 assessment register show that the residential building of Thankayyan was there even prior to 1954. The commissioner in Exts.C1 report and C2 plan mentioned about the existence of building in the property. The lower appellate court held that as per the documents relied on by the plaintiffs, namely, Exts.A1 to A5 and A12, specific plots were conveyed. But the relief claimed in the plaint was refused for the reason that the joint holders have effected partition and plaintiffs’ ::7:: S.A.No.654 Of 1995 predecessor did not get absolute title as per the documents. 8. The present suit was filed for declaration of title and possession. Suit was filed in the year 1977. The question to be adjudicated in the suit is as to whether the plaintiffs have right, title and possession over the plaint schedule property. If the plaintiffs failed to prove title and possession, the course open to the fact findings courts is to dismiss the suit. The court cannot relegate the plaintiff to file another suit for the very same reliefs. In this case the trial court did not examined the question of title at all. The lower appellate court entered the findings mostly in favour of the plaintiffs and dismissed the appeal mainly for the reason that there is no partition of the entire property by the co- owners. 9. The learned counsel for the appellant contended that by the conduct of executing these documents show that specific plots were conveyed to the plaintiffs and therefore observation of the lower appellate court is incorrect. The counsel further submits that it is solely based on wrong understanding of the questions involved in the case and a misreading of the said documents. The learned counsel also submits that the ::8:: S.A.No.654 Of 1995 observation of the lower appellate court that the plaintiffs have no case that the joint title holders have effected partition is also incorrect and such a finding was entered on a misunderstanding of the facts of the case and the documents. Learned counsel pointed out that the predecessors-in-interest have obtained specific plots as per the documents produced. The case put forward by the plaintiffs that plaint schedule items are separate plots obtained as per the documents referred above and the plaintiffs were in possession of the said plots. Learned counsel also pointed out that in the commissioner’s report there is no building in the property taken delivery as per Ext.B1 delivery list. Considering the facts and circumstances and evidence on record, this Court is of the view that the stand adopted by the lower appellate court dismissing the appeal and directing the plaintiffs to institute a fresh suit for the very same reliefs is not a correct approach to the questions involved. The question as to whether the plaintiffs have title over the plaint schedule properties shall be decided by the fact findings courts on the basis of oral and documentary evidence and materials on record adduced by the parties. Finding that there is no proper appreciation of facts and ::9:: S.A.No.654 Of 1995 evidence, this Court is of the view that the matter requires re- consideration. In the result, the appeal is allowed. The judgment and decree passed by the courts below are set aside. The case is remanded to the trial court for fresh consideration and disposal in accordance with law. The trial court shall consider the case afresh untrammeled by any of the observations and findings in any of the judgments. Parties are at liberty to adduce additional evidence, if so advised. The trial court shall dispose of the case within a period of nine months from the date of appearance of the parties. The parties shall appear before the court below on 18.2.2011. Since there is no appearance for the respondents, the trial court shall issue notice to the contesting first defendant. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-