IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 SA.No. 372 of 2000(C) ------------------------------- AS.316/1994 of SUB COURT,NEYYATTINKARA OS.576/1990 of II ADDL.MUNSIFF'S COURT,NEYYATTINKARA .................... APPELLANTS/APPELLANTS/PLAINTIFFS ------------------------------------------------------------ * 1. YOHANNAN NADAR SALIAS, KARIPRAKONATHU, KARAKKATHUVILAKAM KIZHAKKEKARA JOI BHAVAN, PERUMPAZHUTHOOR DESOM, PERUMPAZHUTHOOR PAKUTHY. 2. CHELLAMMA KAMALABAI OF -DO- -DO- 3. S.K. ANIL, S/O.SAILAS MINOR, REPRESENTED BY HIS NEXT FRIEND FATHER 1ST APPELLANT. 4. YOHANNAN NADAR KUMARADAS, KARAKKATTUVILAKAM, KIZHAKKEKARA PUTHEN VEEDU OF DO. DESOM. 5. SHIBU, S/O. KUMARADAS OF -DO- -DO- 6. KUMARADAS BIJU OF -DO- -DO- 7. SHEEBA, D/O.KUMARADAS OF -DO- -DO- * APPELLANT 2 AND 3 ARE RECORDED AS THE LRS OF DECEASED 1ST APPELLANT AS PER ORDER DATED 5/7/05 ON MEMO(CF NO.3729/05) DATED 22/6/05. BY ADV. SRI.L.MOHANAN RESPONDENT(S)/RESPONDENTS/DFENDANTS ------------------------------------------------------------------- 1. Y.NESAN NADAR, KARIPRAKONATHU ROADARIKATHU VEEDU, PERUMPAZHUTHOOR DESOM, PERUMPAZHUTHOOR VILLAGE. 2. N.STEPHEN OF -DO- -DO- 3. N.VINCENT OF -DO- -DO- sts S.A.NO.372/2000 4. N.RAJAN OF -DO- -DO- 5. N. SAJI OF -DO- DO- 6. JOHN, PADINJARARUKU VEEDU, KARIPRAKONATHU KARAKKATTU VILAKAM PURAYIDOM OF DO. DESOM. 7. ROSAMMA SANTHA, KARIPRAKONATHU KARAKKATTUVILAKATHU KIZHAKKEKARA PUTHEN VEEDU, DO. DESOM. R1 TO R5 BY ADVS. SRI.G.UNNIKRISHNAN SRI.D.SAJEEV SRI.P.V.RAMESH SHANKAR SRI.G.P.SHINOD SRI.R.T.JAYARAJ SINGH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO.372/2000 ORDER ON I.A.NO.372/2010 IN S.A.NO.372/2000 DISMISSED 09/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO.JUDGE P.BHAVADASAN, J. ------------------------------------- SA No.372 of 2000-C ------------------------------------- Dated this the 9th day of February 2011 Judgment The plaintiffs are the appellants. During the pendency of the appeal, the first plaintiff died and his legal heirs have been brought on the party array. 2. The suit was one for declaration of title and possession. According to the plaintiffs, as per Ext.A1 gift deed executed by their father Yohannan Nadar, plaintiffs 1 and 4 obtained 2.89 acres of land. The case of the plaintiffs is that even though the extent shown in the deed was 2.89 acres, they have been in actual possession of much more than what was gifted to them under Ext.A1 document. According to them, they were in fact, in possession of 3.53 acres of land. Subsequently, by Ext.A2 partition deed, there was a partition in the family of plaintiffs 1 and 4 and the properties were divided into two schedules namely A schedule and B schedule. Alleging SA 372/00 2 that the defendants are challenging the rights of the plaintiffs 1 and 4 and the 7th defendant and that they are trying to trespass into the plaint schedule property, the suit was laid. 3. Defendants 1 and 2 contested the suit. They disputed that Yohannan Nadar had right or possession of the property shown as A schedule to the plaint. They also disputed that Ext.A1 gift deed was executed by Yohannan Nadar. They contended that A schedule is described in such a manner so as to take in the 75 cents of land which exclusively belong to them. They traced their title to a sale deed dated 10.10.1963 which is produced as Ext.B2. On the basis of these allegations, they prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of Pws 1 to 7 and exhibits marked as Exts.A1 to A7 from the side of the plaintiffs. The defendants did not adduce any oral evidence. They had Exts.B1 to B4 marked. SA 372/00 3 Exts.C1 to C2(a) are the commissioner's report and plan and Exts.X1 and X2 are third party exhibits. 5. The trial court, on a consideration of the materials before it, came to the conclusion that the plaintiffs have not been able to establish their title to the excess extent of property claimed by them and found that the commissioner's report is not acceptable. Accordingly, the suit was dismissed. It may be noticed that there was also a counter claim filed by the defendants which was also dismissed. It appears that the dismissal of the counter claim has become final. 6. The plaintiffs carried the matter in appeal as AS NO.316/94 before the Sub Court, Neyyattinkara. The lower appellate court on a evaluation of the materials before it, came to the conclusion that the commissioner's report is not acceptable and accordingly, confirmed the dismissal of the suit. Hence this second appeal. 7. Notice is seen issued on the following questions of law raised in this appeal : SA 372/00 4 1.Is it not illegal to deny the title of the plaintiff over the schedule property due to non-acceptability of the commissioner's plan. 2.Is not the court bound to remit the report and plan to the commissioner when it is dissatisfied with the proceedings of the commissioner. 3.Are not the reasons stated by the courts below to find fault with the commissioner's report trivial. 4.Is it not illegal to deny the presumption of ancient document to Ext.A1. 8. The learned counsel for the appellants contended that the courts below are not justified in no- suiting the plaintiff and holding that the commissioner's report was not acceptable. According to the learned counsel, the plaintiffs had filed serious objections to the commissioner's report and if the trial court found that the commissioner's report was not acceptable, it ought to have given an opportunity to the plaintiffs to have a proper commissioner's report and plan prepared and submitted SA 372/00 5 before the court. It is also pointed out that the commissioner' s report as such now stands, shows that the property claimed by plaintiffs 1 and 4 and the seventh defendant lies within well demarcated boundaries and the claim of defendants 1 and 2 having been dismissed, the suit ought to have been decreed. It is also pointed out that if for any reason, this court finds that there has not been proper identification of the property, an opportunity may be given to the plaintiffs to have the property identified in accordance with the title deeds and other documents and agitate their case afresh. 9. The learned counsel for the respondents pointed out that the case of the plaintiffs is not that Yohannan had more extent than what is stated in Ext.A1. The definite stand taken in the plaint is that Yohannan had executed a gift deed in favour of plaintiffs 1 and 4 in respect of 2.89 acres of land. But, Nadar was in possession of larger extent. It is also pointed out that the documents of acquisition by Yohannan Nadar were not SA 372/00 6 produced and no attempt was made to get the properties obtained by plaintiffs 1 and 4 and the 7th defendant as per Ext.A1 separately identified. Without doing so, the plaintiffs could not get a relief in the suit. Accordingly, it is contended that the findings of the courts below are fully justified and do not call for any interference by this court. 10. The short case put forward by the plaintiffs is that even though the extent of land made mention of in Ext.A1 document is 2.89 acres, they were in actual possession and enjoyment of more than 3.53 acres of land. They also say that the property obtained by them lies within well defined boundaries and lies separated from the surrounding properties. The commissioner has identified the property as shown by the plaintiffs and as seen on the site. Both the courts below have found that unless the resurvey subdivision plan is produced, the identity of the properties cannot be properly ascertained. The courts below found that the commissioner's report as now available is of no help and therefore, the plaintiffs should SA 372/00 7 fail. 11. Obviously, it was the duty of the plaintiffs to identify the property originally obtained by Yohannan Nadar and also to establish that he had obtained more extent of property than claimed by him as per his document. After getting that property identified, the plaintiffs had to show the property obtained by them under Ext.A1 gift deed. These things have not been done. By merely saying that even though in Ext.A1 document only 2.89 acres have been mentioned, there is excess area in their possession, the plaintiffs cannot succeed. The recital in Ext.A1 is to the effect that out of the 3.89 acres held by Yohannan Nadar, he was gifting 2.89 acres to plaintiffs 1 and 4. Therefore, it has necessarily to be shown either that Yohannan Nadar had possessed 3.89 acres of land or that the plaintiffs had got as gift, much more than 2.89 acres. 12. However, there is some substance in the submission made by the learned counsel for the appellants that if the courts below found that the commissioner's SA 372/00 8 report was not acceptable, the plaintiffs ought to have been given an opportunity to have a proper report and plan submitted. Of course, the courts below cannot be completely found fault with for that, in the absence of proper title deeds produced by the plaintiffs in respect of their claim. As the suit was based on title, the burden was on the plaintiffs to establish their title. Viewed from that angle, it may cause serious prejudice to the plaintiffs, especially when they had filed serious objections to the commissioner's report and also prayed for an opportunity to get a proper plan and report submitted. It is felt that in the facts and circumstances of the case, the courts below ought to have given an opportunity to the plaintiffs to get a proper plan and report submitted. In the result, this appeal is allowed. The impugned judgment and decree of the courts below are set aside and the matter is remanded to the trial court for fresh disposal in accordance with law in the light of what has been stated above. This will not preclude the defendants SA 372/00 9 from agitating their claim regarding identity of the property . The parties shall appear before the trial court on 28.03.2011. They will be free to adduce further evidence, if so advised. The trial court shall make every endeavour to dispose of the case as expeditiously as possible, at any rate, within nine months from the date of appearance of the parties. P.Bhavadasan, Judge sta SA 372/00 10