IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 SA.No. 63 of 1997(G) ------------------------------ AS.115/1995 of II ADDL.SUB COURT,ERNAKULAM OS.594/1989 of II ADDL.MUNSIFF COURT, ERNAKULAM .................... APPELLANT(S): RESPONDENT IN AS. 115/95 AND PLAINTIFF IN OS. 594/89/ ----------------------------------------------------------------------------------------------------------- PATHROSE, SON FO VARKEY, AGED 73 YEARS, PALAL HOUSE, KAKKANAD VILLAGE, KUSUMAGIRI P.O., KANAYANNUR TALUK. BY SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE BY ADVS.SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): APPELLANTS IN AS. 115/95 AND DEFENDANTS IN OS.594/89 ------------------------------------------------------------------------------------------------------------------ 1. ITHAPPIRI, SON OF LATE ITTAN, AGED 70 YEARS, PALAL HOUSE, KAKKANADU VILLAGE, KANAYANNUR TALUK. *2. VARGHESE, SON OF LATE ITTAN, AGED 61 YEARS, PALAL HOUSE, KAKKANAD VILLAGE, KANAYANNUR TALUK (DIED) *ADDL. R3 TO R7 IMPLEADED. 3. WIDOW, MOLLY VARGHESE, T.C. 7/1088, PALAL HOUSE, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM 695 013. CHILDREN 4. SHEBA, W/O. SUJAN GEORGE, RESIDING AT DO. DO. 5. SHEEBA, W/O. ROBIN KOSHY, MATHEW RESIDING AT DO . DO. S.A. NO.63/1997 6. SHINA, W/O. MATHEW ANDREWS, RESIDING AT DO. DO. 7. ABRAHAM VARGHESE, FLAT NO.B2, V.B. WOODS APARTMENT, THANAPADAM ROAD, NEAR T.V. CENTRE, CEPZ P.O., KOCHI 37. 2ND RESPONDENT DIED AND THE LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 3 TO 7 AS PER ORDER DTD.7.12.2010 IN IA. NO.2872/2010. ADV. SRI.S.VINOD BHAT FOR R1,3,4, 6 & 7 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 63 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of January, 2011 JUDGMENT The plaintiff in O.S. 594 of 1989 before the Munsiff's Court, Ernakulam, who was non-suited by the lower appellate court, is the appellant. 2. According to the plaintiff, his father obtained the plaint schedule property along with other items from the father of the defendants as per Ext.A1 dated 16.7.1111. By virtue of a partition deed in the family of the plaintiff, the plaint schedule property was set apart to him. Eversince the above partition was effected, he has been in absolute possession and enjoyment of the property. He has made valuable improvements in the property. The defendants own property adjacent to the property owned by the plaintiff and the property of the defendants is comprised in Sy. No. 285/1/1. The defendants have no manner of right S.A.63/1997. 2 over the plaint schedule property. They are however attempting to trespass into the same and hence the suit. 3. The defendants resisted the suit by pointing out that the plaintiff has neither title nor possession over the suit property. Property has been in the absolute possession and enjoyment of the defendants. It was admitted that the property earlier belonged to their father, but the contention taken was that the property sold to the plaintiff's father was not the plaint schedule property. The property so sold to the father of the plaintiff was in Sy. No.285/1, which was subsequently sub-divided and the present survey number is 285/1-3. It is the defendants, who had effected improvements in the property and the plaintiff has no manner of right over the same. On the basis of these contentions, they 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 P.Ws.1 to 4 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendants S.A.63/1997. 3 had D.Ws. 1 to 5 examined and Exts.B1 to B16 marked. Exts.C1, C1(a) and C2 are the commission reports and plan. Exts. X1 series and X2 are third party exhibits. On an evaluation of the evidence in the case, the trial court felt that the plaintiff has succeeded in establishing his case and granted a decree in his favour. 5. The defendants took up the matter in appeal as A.S. 115 of 1995 before the Sub Court, Ernakulam. The lower appellate court on a reconsideration of the materials before it differed from the trial court and came to the conclusion that the plaintiff had miserably failed to establish his case and accordingly allowed the appeal and dismissed the suit. Hence this Second Appeal. 6. The following questions of law are seen formulated in the memorandum of second appeal: “(a) After having admitted the possession of the plaint schedule property by plaintiff and his predecessors under the sale deed No.1107 of 1111 M.E., is it possible for the defendants to claim adverse possession unless it is pleaded and S.A.63/1997. 4 shown that possession was taken back on any particular point of time and continue in possession by the defendants on the date of the suit for the statutory period. (b) In a plea of adverse possession raised by the defendant, is it not sufficient for the plaintiff to prove his title under Article 65 of the Limitation Act and thereby shifting the onus on the defendant to establish his claim of adverse possession.” 7. Sri. Gopikrishnan Nambiar, who appears for the appellant, pointed out that the lower appellate court was not justified in reversing the well considered judgment of the trial court. Emphasis was laid on the fact that the appellate court has found that the commission report is not reliable and if that be so, no emphasis could have been given to that aspect of the case. Merely, because some letters are seen to have been issued by the plaintiff, which infact was disputed by the plaintiff, the lower appellate court should not have found against the plaintiff. Learned counsel also S.A.63/1997. 5 pointed out there has not been a proper identification of the property at all and it would have been only fair if an opportunity is given to the plaintiff to have the property properly identified so that the dispute could be resolved finally. It was also pointed out that the main criteria adopted by the lower appellate court is with reference to the improvements seen in the property. That according to the learned counsel could not have been the sole criteria at all. Accordingly, the learned counsel pointed out that the judgment and decree of the lower appellate court are unsustainable. 8. Learned Senior Counsel Sri. R.D. Shenoy on the other hand pointed out that the nature of improvements made in the property cannot be ignored and that is one important factor which has to be considered by the court in arriving at a conclusion that the claim of possession made by the plaintiff is true. Learned counsel also pointed out that there are series of letters issued by the plaintiff, which S.A.63/1997. 6 would show that the defendants are in possession of the property. 9. At the very outset itself it may be observed that both the courts below have lost sight of the real issue involved in the suit. The actual dispute is regarding the identity of the property. Attempt should have been made to ascertain whether there is proper identification of the property claimed by each of the parties with reference to their respective title deeds. It is true that the commissioner has submitted a plan and a report. But both the courts below have found that they are of no help at all. The commissioner ought to have identified the property as per Exts.A1, A6, B1 and other title deeds relied on by the parties and should have filed a report in that regard. The report now available only shows that going by the plan prepared by the Surveyor, it is felt that the property shown in blue colour might belong to the plaintiff. This shows that there has been no attempt from the part of the commissioner to identify the property claimed by each of the parties. S.A.63/1997. 7 10. It may be remembered that both the parties lay claim to the same property. One fact is admitted and that is that the property now claimed by the plaintiff was also owned by the father of the defendants. While the plaintiff would say that the plaint schedule property was an item of property sold to his father along with the other items, the defendants would contend that it was some other property which was sold to the father of the plaintiff. It was therefore necessary to ascertain the identity of the property covered by Ext.A1. It was after Ext.A1 partition deed that the plaintiff obtained the property. Ext.B1 is the document relied on by the defendant. Commissioner's plan, namely, Ext.C1(a), does not tally with the report, namely, Ext.C1. It is also not possible to locate the property from the sketch going by the boundaries shown in the plan as well as in the document. These vital aspects have been omitted to be noticed by both the courts below. It is only after a proper identification of the property that the nature of the reliefs that can be granted to the parties can be ascertained. It S.A.63/1997. 8 may be that portions of the property, which was infact belonged to the plaintiff, may be in the possession of the defendants, in which case, the relief will have to be accordingly moulded. 11. After having found that the commission report is not acceptable at all, it would have been only fair on the part of the court below to provide an opportunity to the plaintiff to have a proper plan and report prepared. Instead, the lower appellate court was concerned more about the nature of improvements made in the property and Ext.X1 series of documents, wherein the plaintiff has annexed a portion of the property of the defendants. As rightly pointed out by the learned counsel for the appellant, that by itself may not be sufficient. Learned counsel for the appellant is right in saying that unless the property is properly identified, the value of improvements cannot be the sole criteria to determine the possession of the person concerned. In the result, this appeal is allowed, the judgment and decree of the courts below are set aside so also the S.A.63/1997. 9 commission reports and plan Exts.C1, C1(a) and C2 and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. If the parties so choose, they may take steps to have a proper plan and report prepared and filed before the trial court. The parties will be at liberty to amend the pleadings, if they are so advised and also to adduce further evidence, if any. Parties shall appear before the court below on 22.2.2011. The court may make every endeavour to dispose of the suit within nine months from the date of appearance of the parties. Office will send back the records forthwith. P. BHAVADASAN, JUDGE sb.