IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 RSA.NO. 1326 OF 2009() ---------------------- AS.76/2006 OF SUB COURT,ATTINGAL OS.28/2005 OF MUNSIFF COURT,VARKALA .................... APPELLANT - RESPONDENT/PLAINTIFF; ----------------------------------------- JOHN, AGED 69 YEARS, S/O.VAREETH THAIVILAKOM PURAYIDOM NEAR KOTTA, ANCHUTHANGU DESOM, KADAKKAVOOR VILLAGE. BY ADV. SRI.C.R.SIVAKUMAR RESPONDENT(S): APPELLANTS/DEFENDANTS: ------------------------------------- 1. ANGEL MARY, AGED 41 YEARS, D/O.JOSEPH, THAIVILAKOM PURAYIDOM NEAR KOTTA, ANCHUTHANGU DESOM, KADAKKAVOOR VILLAGE. 2. DASAN, AGED 30 YEARS, PUTHUVAL PURAYIDOM, WEST TO ANJUTHENGUKOTTA, KADAKKAVOOR VILLAGE. 3. BINDU, W/O.DASAN, AGED 22 YEARS, PUTHUVAL PURAYIDOM, WEST TO ANJUTHENGUKOTTA, KADAKKAVOOR VILLAGE. ADV. SRI.C.K.PRASAD FOR R1 SRI.KRISHNAN.S.RAJ THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1326 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of February, 2010 J U D G M E N T --------------------- Admit. 2. Plaintiff in O.S. No.28 of 2005 of the court of learned Munsiff, Varkala is before me in Second Appeal challenging the finding entered by the first appellate court which modified the judgment and decree of learned Munsiff. Appellant sued the respondents for declaration of title, recovery of possession and prohibitory injunction concerning 2.150 cents of land in Sy.No.336/1 of Kadakkavoor Village situated within the boundaries mentioned therein and the house therein bearing No.AP-VIII/313. His case is that he got the suit property as per Ext.A1, Patta. Respondent No.1 is his daughter-in-law residing in the house in the suit property. Appellant apprehended that she would create false documents and attempt to trespass into the suit property along with other respondents. Hence the suit. Respondent No.1 denied that appellant has title or possession of suit property. According to her 1.445 cents in Sy.No.3357 has been in her possession and enjoyment since about 20 years where herself and husband R.S.A. No.1326 of 2009 -: 2 :- constructed a house bearing No.AP-I/241 (new number is AP- VIII/313). She also made a counter claim seeking decree for prohibitory injunction against trespass into the said property. Trial court appointed an Advocate Commissioner to identify the property with the assistance of Taluk Surveyor. Commissioner submitted Exts.C1 to C3(a). The Commissioner and Taluk Surveyor were examined as C.W.1 and P.W3. Appellant gave evidence as P.W.1. P.W.2 is his witness. Appellant proved Exts.A1 to A9. Respondent No.1 gave evidence as D.W.1 and proved Exts.B1 to B12. Exhibit X1 is the court document. Trial court answered the issues in favour of appellant and granted decree for recovery of possession while the counter claim was dismissed. On appeal at the instance of respondent No.1 first appellate court allowed the appeal holding that there is no proper identification of the suit property, whether it is comprised in Sy.No.336/1 as claimed by the appellant or in Sy.No.3357 as claimed by respondent No.1. However first appellate court found that respondent No.1 is in occupation of the building in the suit property but without proving title over the property. Accordingly the suit as well as counter claim were dismissed. Hence the Second Appeal at the instance of appellant/plaintiff. R.S.A. No.1326 of 2009 -: 3 :- 3. Following substantial questions of law are framed for a decision: (i) Whether first appellate court went wrong in not considering and appreciating the evidence tendered by the Advocate Commissioner and Ext.C1 to C3 and Ext.A1, Patta issued by the Land Tribunal? (ii) Whether first appellate court was legally correct in holding that there is no proper identification of the suit property? It is contended by learned counsel for appellant that evidence of C.W.1 and P.W.3 coupled with Exts.A1 and C3(a) is sufficient to prove title claimed by the appellant in the suit property. It is contended that apart from the fact of mere occupation of the house by respondent No.1, she was not able to prove her title in the suit property and hence first appellate court ought to have confirmed the judgment and decree of learned Munsiff. Learned counsel for respondent No.1 would contend that there is no proper identification of the suit property as rightly found by the first appellate court and R.S.A. No.1326 of 2009 -: 4 :- in that situation decree based on title could not have been granted in favour of appellant. As such no interference is required with the judgment under challenge. 4. The crucial question for consideration is whether there is proper identification of the suit property and whether title claimed by the appellant over it is established. Being a suit on title appellant has to win on the strength of his case and not on the weakness of the case of respondent No.1. It is not disputed that respondent No.1 is in occupation of the house in the suit property the present number of which is AP-VIII/313 (according to respondent No.1 its previous number is AP-I/241). Respondent No.1 produced Exts.B1 to B10 in support of her case that she is in possession of the suit property. Exhibit B1 is the certificate of possession issued by the Tahsildar, Chirayinkeezh on 14.12.2004 wherein it is stated that since 10 years (before Ext.B1) respondent No.1 is in possession of 1.445 cents in Sy.No.3357 where house No.AP-VIII/313 situates. But Ext.B1 was not taken into account by the courts below for the reason that it was not properly proved. Exhibits B2 and B3 are ration cards issued to respondent No.1 but mentioning house number as AP-I/241 (which according to her is the previous number of the house in R.S.A. No.1326 of 2009 -: 5 :- question). Exhibits B4 to B10 are receipts for payment of building tax but in respect of house No.AP-I/241. It is relevant to note that in Ext.B3, subsequent ration card house number is mentioned as AP- VIII/313. 5. So far as identification of the property is concerned I stated that in Ext.A1, Patta and the plaint schedule property is described as 2.150 cents in Sy.No.336/1 while in the counter claim it is stated that the property is 1.445 cents in Sy.No.3357. P.W.3 stated that identification of the property was not with reference to any survey number since according to him survey plan was not available. He stated that even the blueprint of the survey number was not available for identification. Identification of the suit property according to P.W.3 was with the aid of Ext.A5, photocopy of a purchase certificate issued to the appellant from the Land Tribunal concerning property comprised in Sy.No.106 and photocopy of the Patta issued to the appellant on the back of which there was a sketch of the property drawn. Exhibit A1 is the Patta obtained by the appellant allegedly in respect of the suit property but that document does not contain the sketch either on the front or reverse side. Exhibit X1 is the photocopy of a sketch included in L.A.II- R.S.A. No.1326 of 2009 -: 6 :- 251/80 which is the patta number given in Ext.A1. It is true that Ext.X1 is attested by Tahsildar, Chirayinkeezh but it is not clear whether Ext.X1 was taken by P.W3 for measurement. For, what P.W.3 stated is that a photocopy of Patta with a sketch on the reverse side was given to him for measurement. Evidence of C.W.1 do not support that version of P.W3. He stated that he was shown a copy of Patta on the back of which there was a sketch of the property but the Patta shown in the court did not contain any sketch on its back side. He could not deny the suggestion that forged photocopy was given for measurement and identification. After examination in court C.W.1 filed an affidavit in court on 16.3.2006 stating that he gave evidence in court that on the back of Patta there was a sketch of the property but after evidence was over he verified the Patta and found that there was no sketch drawn on its back and instead there was another paper containing sketch for measurement of the property. Therefore there is real doubt as to the authenticity of the document handed over to the Taluk Surveyor and Advocate Commissioner for identification and measurement. 6. Going by the evidence of P.W.3, Taluk Surveyor sketch of R.S.A. No.1326 of 2009 -: 7 :- the property covered by the Patta in question might have been available in the Taluk Office but no attempt was made by either of the parties for summoning the same for measurement and identification. According to P.W3 measurement was made also on the strength of Ext.A5, purchase certificate issued to the appellant in respect of the property comprised in Sy.No.106. He stated that he could not identify the said 1.445 cents in Sy.No.3357. Learned counsel for respondent No.1 states that claim of respondent No.1 is possessory title over the property comprised in Sy.No.3357. P.W3 stated that he identified the 2.150 cents as plot ABCID in Ext.C3(a) but he has not stated the survey number of the property on the four sides of the said property. Going by Ext.X1 which is stated to be the sketch of property covered by Ext.A1, boundaries are described by survey numbers. Concededly P.W3 did not identify those survey numbers and as shown it in Ext.C3(a). 7. According to P.W3 he measured the property making use of the sketch of the kudikidappu property allotted to the appellant (as per Ext.A5) and the photocopy of the Patta. It is seen from Ext.A5 that western boundary of the property covered by the kudikidappu is the sea wall. In Ext.A1 eastern boundary of the suit R.S.A. No.1326 of 2009 -: 8 :- property is shown as property in Sy.No.106. If that be so going by Ext.X1 on the west of the property comprised in Sy.No.106 should be property comprised in Sy.No.336/1. But Ext.A5 shows that western boundary of the property comprised in Sy.No.106 is sea wall. It is pertinent to note that respondent No.1 is claiming right of possession of the property is bounded by sea on the west and sea wall on the east. Thus identification of the suit property made by the Advocate Commissioner and Taluk Surveyor is not at all satisfactory and for that reason first appellate court interfered with the judgment and decree granted in favour of the appellant. Counter claim was not entertained by the first appellate court since the property over which respondent No.1 claimed right was not properly identified. As such counter claim was dismissed. 8. Now as things stand there is no proper identification of the suit property. Hence title could not be declared. At least so far as appellant and respondent No.1 are concerned the suit property is no man's land though it is admitted that respondent No.1 is occupying the house situated therein. I think there must be a proper adjudication of the dispute involved in the case. Hence remand of the case to the trail court for proper identification of the R.S.A. No.1326 of 2009 -: 9 :- suit property taking into account the contention of respondent No.1 as well is necessary. 9. It is true that dismissal of the counter claim was not challenged by respondent No.1 in the first appellate court either by way of separate appeal or cross appeal. But on the facts and circumstances of the case I consider it appropriate exercising power under Order XLI Rule 33 of the Code of Civil Procedure to set aside the finding and decree on the counter claim and remand that matter also to the trial court for a proper adjudication of the dispute involved between the parties. I make it clear that it will be for the parties concerned to summon the survey plan of the properties if it is available anywhere and in the absence of that, to get other relevant documents including the Patta with its sketch which P.W3 stated is in the custody of the Tahsildar concerned for proper identification of the suit property. Learned Munsiff shall appoint an Advocate Commissioner for proper identification of the suit property in the lines stated above. I also make it clear that it will be open to the parties to adduce further evidence if they are so advised. Substantial questions of law framed are answered accordingly. Resultantly Second Appeal is allowed by way of remand. R.S.A. No.1326 of 2009 -: 10 :- Judgments and decree of courts below including the decree on the counter claim are set aside and the suit as well as the counter claim are remitted to the trial court for fresh decision in the light of the observations made above. Parties shall appear in the court of learned Munsiff, Varkala on 19.03.2010. Interlocutory Application No.3050 of 2009 shall stand closed. THOMAS P.JOSEPH, JUDGE. vsv