IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 SA.No. 884 of 1998(E) --------------------- AS.337/1996 of SUB COURT, NEDUMANGAD OS.830/1989 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S): RESPONDENT/DEFENDANT ---------------------------------------------------------------- *1. THANNU PILLAI BALAN PILLAI, THADATHARIKATHU VEEDU, VARUVANCODE, ANAD, PERINGAMALA, NEDUMANGAD. (DIED. LRS. RECORDED) *ADDL.APPELLANTS 3 TO 7 ARE RECORDED AS LEGAL HEIRS OF DECEASED IST APPELLANT AS PER ORDER DTD. 30.3.2011 IN IA.911/2011. 2. PARVATHY AMMA GOURI AMMA OF DO. DO. (DIED) *ADDL.3 TO 7 IMPLEADED. 3. GANGADHARAN NAIR, AGED 65 YEARS, S/O. NARAYANAN PILLAI, SANTHOSH BHAVAN, KULACHAL, EDINJAR P.O., THIRUVANANTHAPURAM. 4. N.SIVADASAN NAIR, ERATHU PUTHEN VEEDU, PACHA P.O., THIRUVANANTHAPURAM. 5. OMANA AMMA, KOLLAKONATHU VEEDU, VENKAVILA, PAZHAKUTTY P.O. THIRUVANANTHAPURAM. 6. VISALAKSHI AMMA, AJI BHAVAN, CHETTACHAL P.O., THIRUVANANTHAPURAM. tss S.A. NO.884/1998 7. CHANDRAMATHI AMMA, PADMAVILASOM, THOLIKODE P.O., THIRUVANANTHAPURAM. *LRS. OF THE DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 3 TO 7 AS PER ORDER DTD. 7.2.2011 IN IA. 397/2011. ADDL.APPELLANTS BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): APPELLANT/PLAINTIFF ----------------------------------------------------------- SUBHADRA AMMA INDIRA BAI AMMA, PRIYA BHAVAN, VARUVANCODE, ANAD, PERINGAMALA, NEDUMANGAD, TRIVANDRUM. BY ADVS. SRI.G.S.REGHUNATH SRI.MOHAN JACOB GEORGE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.2213/2000 IN SA. NO.884/1998 DISMISSED 08/06/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ------------------------------------- SA No.884 of 1998 ------------------------------------- Dated this the 8th day of June 2011 Judgment The defendants in OS No.830/89 before the Munsiff's Court, Nedumangad, are the appellants. During the pendency of the appeal before this court, both the appellants passed away and their legal heirs have been brought on the party array. The parties and facts are hereinafter referred to, as they are available before the trial court. 2. By virtue of Ext.A4 dated 11.05.1972, Bhargavan Pillai gifted his right over 82 cents of property of which 72 cents was comprised in Survey No.3818/3 and 10 cents out of 15 cents included in RS No.3495/8 in favour of his wife and children. Later, by Exts.A1 and A2, the mother and brothers of Indira Amma relinquished their rights in favour of the plaintiff. Thus, plaintiff is the absolute owner of 82 cents. It is claimed that the plaint schedule property SA No.884/89 2 was lying within well defined boundaries. The defendants own property on the eastern side of the plaintiff's property and they are relatives. According to the plaintiff, the defendants are attempting to trespass into the plaint schedule property and reduce a portion of the same into their possession. Initially, the suit was one for injunction, which was later amended for recovery of possession on the strength of title. 3. The defendants resisted the suit. They disputed that plaint schedule property was lying as a compact plot. According to them, the plaintiff had property only in Survey No.3818/3 and she has no property in any other survey number. It is specifically disputed that the plaintiff had any extent of property in Survey No.3495/8. Further, it was contended that the second defendant has obtained one acre consisting of 87 cents in RS No.3495/8 and 13 cents in RS No.3495/5. The defendants are in possession of the suit property and they have not trespassed into any portion of the property owned by the SA No.884/89 3 plaintiffs. The allegation of trespass is false. The defendants' property is planted with rubber and they are taking yield therefrom. It was also contended that even if it is found that any portion of the plaintiff's property is in the possession of the defendant, the right of the plaintiff is lost by adverse possession and limitation. On the basis of these contentions, they prayed for dismissal of the suit. 4. On the pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants had DWs 1 to 3 examined. Exts.C1 and C1(a) commissioner's report and plan were also marked. 5. The trial court, on an evaluation of the case, found that the plaintiff has failed to establish her title over 10 cents of property said to be comprised in Survey No.3495/8. They had also not produced Ext.A4 document before the trial court. The trial court found it to be fatal and holding that the properties have not been properly SA No.884/89 4 identified, dismissed the suit. 6. The aggrieved plaintiff carried the matter in appeal as AS No.337/96 before the Sub Court, Nedumangad. Before the lower appellate court, the plaintiff produced Ext.A4 document. The lower appellate court, after applying its mind and finding that it is essential for proper adjudication of the matter, received it as additional evidence. Thereafter, the lower appellate court evaluated the evidence on record and found that the plaintiff has established his case. The lower appellate court also found that the defendants were very shy in producing their document of title and based on the findings, a decree was granted in favour of the plaintiff. Hence the second appeal. 7. In this memorandum of second appeal, notice is seen issued on the following questions of law : 1.Whether in the facts and circumstances of the case, is the lower court correct in putting the burden on the defendants to prove their title by production of their title SA No.884/89 5 deeds ? 2.When the property claimed and described in the plaint and documents of title is not located and identified, is the court correct in decreeing the suit based on the title deeds alone ? 3.When the schedules in Exts.A1, A2 and A4 and that of the plaint and the location and identification of property do not tally each other, is the lower appellate court correct in decreeing the suit without identifying the property ? 4.When the boundaries and the description of properties do not tally, which will prevail ? 5.Whether the lower appellate court is right in allowing recovery of possession and fixing of boundaries when there is no evidence of trespass and tampering with the boundary ? 8. The learned counsel for the appellants pointed out that the commissioner has not properly identified the 10 cents said to be comprised in Survey SA No.884/89 6 No.3495/8 and that has resulted in miscarriage of justice. It is pointed out that Ext.A4 was produced only at the appellate stage and in all fairness, instead of receiving the additional evidence and disposing of the appeal, the lower appellate court ought to have remanded the matter to the trial court to enable the defendants to meet the case put forward by the plaintiff. Referring to Exts.A1, A2 and A4, it was pointed out that even assuming the plaintiff and her predecessor-in-interest had 10 cents comprised in Survey No.3495/8, it had necessarily to be identified as to where exactly the 10 cents is located. Attention of this court was drawn to the recital in the said document wherein it is stated that out of the 15 cents comprised in Survey No.3495/8, 10 cents was given to the plaintiff and her predecessor-in-interest. The learned counsel pointed out that without ascertaining or locating that 15 cents and the 10 cents obtained by the plaintiff, a decree could not have been granted in favour of the plaintiff by the lower appellate court. SA No.884/89 7 9. Per contra, the learned counsel for the respondent pointed out that there is absolutely no basis for the contention now taken by the appellants before this court. The recitals in the document are so clear that there can be no doubt regarding the location of the 10 cents comprised in Survey No.3495/8, over which the plaintiff and her predecessor-in-interest had acquired rights. Referring to the documents on evidence, it was pointed out that the trial court, on misconstruing the documents and commissioner's report, had reached an erroneous conclusion that the said 10 cents has not been identified. According to the learned counsel, there was no ambiguity at all in the identification of the property, as the commissioner had correctly located the 10 cents comprised in Survey No.3495/8. The lower appellate court, according to the learned counsel, had appreciated the evidence in the proper perspective and has reached the findings based on evidence on record. Being essential questions of fact, no substantial questions of law arise for consideration and the SA No.884/89 8 second appeal is only to be dismissed. 10. It is noticed that the trial court was inclined to take the view that the 10 cents of property claimed by the plaintiff in Survey No.3495/8 was not properly identified and therefore, a decree could not be granted to the plaintiff. The trial court refused to accept the commissioner's report on the ground that one of the documents based on which the plaintiff has obtained rights, had not been produced and without that document, proper identification could not have been made by the commissioner. It also referred to the evidence of PW1 and came to the conclusion that she had no idea about the property. 11. On the other hand, the lower appellate court received Ext.A4 document as additional evidence and found that the claim of the plaintiff was true. As already noticed, the attack is made regarding reception of additional evidence at the appellate stage and it was contended that the matter ought to have been remanded for fresh consideration by the trial court. Even though SA No.884/89 9 normally, that would have been the course that has to be adopted, in this case, it is felt that it is unnecessary. The dispute, as already noticed, relates to 10 cents comprised in Survey No.3495/8. It is not in dispute that the said survey number contains a large extent of land. Both the plaintiff as well as the defendants own properties in the said survey number. The defendants have disputed that the plaintiffs have any extent of property in Survey No.3495/8. It is here that one has to go through the various documents produced by the plaintiff. Earliest of the documents is Ext.A4, which is of the year 1972. That, as already stated, is a gift deed executed by Bhargavan Pillai in favour of his wife and children. It refers to two items of properties, namely 72 cents comprised in Survey No.3818/3, which is a portion of one acre eight cents and 10 cents in Survey No.3495/8 which is a portion of 15 cents. What is significant is, it is clearly recited in the schedule that out of the 15 cents, leaving 5 cents on the east, the remaining 10 cents is being conveyed. It is, therefore, very clear that the SA No.884/89 10 said five cents of property must be on the eastern side of the 10 cents of property, over which, the plaintiff laid claim. We find similar recitals in Exts.A1 and A2 also. 12. It is here that the non-production of the document of title by defendants assumes significance. True, in a suit based on recovery of possession, the burden is on the plaintiff to prove his title. In the case on hand, as already noticed, it is very evident that the five cents of disputed property has to be on the eastern side of the 10 cents of property comprised in Survey No.3495/8 obtained by the plaintiff and her predecessor-in-interest. 13. A reference to the commissioner's report will not be out of place at this juncture. The commissioner's report and plan shows that the commissioner was able to identify the property claimed by the plaintiff. The way shown by the commissioner is claimed to be the eastern boundary of the plaintiff's property. That it cannot be so, can be seen from the commissioner's report and plan. The way stands included in the property of the plaintiff. SA No.884/89 11 According to the commissioner's report, a small portion lying on the eastern side of the pathway shown in yellow colour and the larger portion shown in blue colour which is the disputed portion, lies as a compact plot. The commissioner has also noticed the improvements effected in the said disputed portion of the property. It must be said that the commissioner has also noticed the various improvements in the property owned and possessed by the defendants. 14. True, a reading of the evidence of PW1 would give the impression that she does not have much idea about the property. But, that by itself, cannot be taken as vital when there are other items of evidence, which clearly show the location of the property and also because the commissioner has correctly identified the property. It cannot be said that plot B cannot be the 10 cents comprised in Survey No.3495/8. One has to recollect here that Survey No.3495/8 contains a large extent of land, portions of which are owned and possessed by the plaintiff SA No.884/89 12 and the defendants. DW1, when examined, has clearly stated that the eastern boundary of the entire extent of property covered by Survey No.3495/8 is the property belonging to Rawuthar Pillai. It has also come out from the evidence of DW1 that there is a well laid boundary separating the properties of the plaintiff and the defendants. In the light of those items of evidence, the version given by DW1 that there is no boundary on the eastern side of the property of Rawuthar Pillai, can be only a bona fide mistake. Various other claims made by DW1 that the property lying on the western side of the pathway lies separately within well defined boundaries, is belied by the commissioner's report. So also the claim of the defendants that their properties are secured by proper fencing on all sides. Whatever that be, there can be no doubt regarding the fact that the five cents left out of the 15 cents has to be on the eastern side of the 10 cents obtained by the plaintiff and her predecessor-in-interest. In that view of the matter, the non-identification of the 15 SA No.884/89 13 cents becomes irrelevant and insignificant. The lower appellate court was fully justified in holding that the defendants had not made any attempt to get their property identified, which could have easily resolved the issue. No reason whatsoever is given as to why they did not produce their document of title and get their property identified, especially when the commissioner in his report, had shown that the property owned and possessed by the plaintiff could be identified. The above facts persuaded the lower appellate court to grant a decree in favour of the respondent before this court. The findings are essentially based on evidence on record. They are findings of fact. No substantial questions of fact arises for consideration in the second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. No order as to costs. P.Bhavadasan, Judge sta SA No.884/89 14 SA No.884/89 15