IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 FAO.No. 26 of 2006() -------------------- AS.146/1999 of PRL.SUB COURT,KOTTAYAM OS.86/1994 of ADDL.M.C.,KOTTAYAM .................... APPELLANT/1ST RESPONDENT/1ST DEFENDANT ------------------------------------------------------------------------------- P.A.CHACKO, PATHAYIL HOUSE, AREEPARAMBU KARA, MANARCADU VILLAGE, KOTTAYAM. BY ADV. SRI.ABRAHAM GEORGE JACOB SRI.C.MURALIKRISHNAN (PAYYANUR) SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) RESPONDENT(S): APPELLANT & ADDL. R3 & 4/PLAINTIFF & LRS OF DECEASED 2ND DEFENDANT ----------------------------------------------------------------- 1. SOSAMMA, W/O.GEORGE, KODUVATH HOUE, AMAYANNOOR KARA, AYARKUNNAM VILLAGE, KOTTAYAM DISTRICT. 2. UNNI, AGED ABOUT 65, S/O.LATE ITTY AVIRA, NADUWILATHIL, AREEPARAMBU KARA, MANARCADU VILLAGE, KOTTAYAM DT. 3. JOY, AGED ABOUT 58, S/O.LATE ITTY AVIRA, ARACKAL OZHATHIL, LAKKATTOOR KARA, KOORAPPADA VILLAGE, KOTTAYAM DISTRICT. ADV. SRI.SURIN GEORGE IPE FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = F.A.O.No.26 of 2006 = = = = = = = = = = = = = = Dated this the 28 th day of August, 2009 JUDGMENT The 1st defendant in O.S.No.86 of 1994 on the file of the Munsiff's Court, Kottayam is the appellant in this appeal. The aforesaid suit filed by the 1st respondent herein was one for a declaration of her title over the plaint schedule item No.1 admeasuring 8 cents and for recovery of possession of plaint schedule item No.2 admeasuring 3 cents allegedly trespassed upon by the defendant. The property of the defendant was described as plaint schedule Item No.3 having an extent of 3.5 cents stated to be situated to the south of the plaint schedule Item No.1. 2. The following facts are not in dispute:- Both the property of the plaintiff as well as the property of the appellant/1stdefendent originally belonged to the 2nd defendant, Itty Avira. As per Ext.A1 F.A.O.No.26 of 2006 2 sale deed dated 28.10.1969 the 2nd defendant sold 8 cents of property to the plaintiff which according to the plaintiff is the plaint schedule item No.1. Long thereafter as per Ext.B1 sale deed dated 4.2.1982, the very same 2nd defendant sold 3.75 cents of land to the 1st defendant and according to the plaintiff the said 3.75 cents is plaint schedule Item No.3. The plaintiff alleged that the 1st defendant trespassed into a portion of the plaint schedule Item No.1 and plaint schedule item No.2 admeasuring 3 cents is the allegedly trespassed area. The suit was accordingly laid for declaration of title and recovery of possession of the trespassed area. 3. The 1st defendant resisted the suit contending, inter alia, that plaint schedule item No.1 was not the 8 cents of land which the plaintiff got from the 2nd defendant as per assignment deed and that the identity of the property had to be established by the plaintiff before getting a F.A.O.No.26 of 2006 3 decree in his favour. The 1st defendant further contended that the allegedly trespassed portion was actually a portion of the property comprised in Ext.B1 sale deed. 4. The trial court framed the following issues for trial:- 1.Whether the suit is barred by limitation? 2.Whether the description of plaint items are correct? 3.Whether the 1st defendant is not entitled to claim title over item No.2 or any portion thereof on the basis of document No.432/82 of SRO, Kottayam? 4. Whether 1st defendant is in illegal possession of item No.2 property? 5. Whether item No.1 and 2 are part of item number covered by document No.2658/69 of Addl.SRO, Kottayam? F.A.O.No.26 of 2006 4 6. Whether plaintiff is entitled for declaration of his title over item No.2 property? 7.Whether plaintiff is entitled for recovery and possession of item No.2 from 1st defendant? 8. Reliefs and cost. “ 5. On the side of the plaintiff Ext.A1 was marked presumably without any objection. On the side of the defendants two witnesses were examined as DW1 and DW2 and Exts.B1 to B6 were marked. The trial court deputed an Advocate Commissioner who filed Exts.C1 series of which Ext.C1(c) is the survey plan. 6. The learned Munsiff, after trial, as per judgment and decree dated 29.7.1998 dismissed the suit mainly for the reason that the plaintiff failed to identify the plaint schedule property and that the identification made by the Advocate commissioner was without reference to the survey F.A.O.No.26 of 2006 5 records. On appeal preferred by the plaintiff as A.S.No.146 of 1999 before the Sub Court, Kottayam, that court as per the impugned judgment dated 19.11.2005 set aside the judgment and decree passed by the trial court and remanded the case to the trial court for fresh disposal after giving an opportunity to the plaintiff to identify the plaint schedule property with reference to survey records. It is the said remand order which is assailed in this appeal filed under Order 43 Rule 1(u) C.P.C. 7. The following are the questions of law formulated in the memorandum of appeal:- (1) On the facts and circumstances of the case is not the view of the court below that mere marking in evidence of a title deed is sufficient to prove title to the property described in the schedule to the same contrary to law? (2) on the facts and circumstances of the case where the plaintiff/appellant is that the evidence tendered is sufficient to decree the suit is not F.A.O.No.26 of 2006 6 the view of the first appellate court that the plaintiff should be given further opportunity to adduce evidence wrong in law? (3) In a suit where the plaintiff has no case that the commission report filed is insufficient to decree the suit, is not the view of the court below that a further commission should be issued once the commission report relied upon by the plaintiff is found to be of no use, contrary to law? (4) In a suit where the plaintiff alleges trespass, but the evidence tendered by him fails to prove the same, is not the view of the court below that the plaintiff should be afforded another opportunity to tender better evidence contrary to law? (5) In a case where the plaintiff pleads a case that the defendant came into a possession of a property consequent to an agreeement to purchase the same, is not the plaintiff's suit for recovery of possession barred by the provisions of Section 53A of the Transfer of Property Act? (6) In a suit where the defendant's evidence stands undisputed is not the court below bound F.A.O.No.26 of 2006 7 to go by the same in the absence of any better evidence on the part of the plaintiff? (7) In a case where the plaintiff fails to enter the witness box, is not the court bound to draw adverse inference against the plaintiff? (8) On the facts and circumstances of the case is not the view of the court below that the earlier commission report need not be set aside before sending another commission to re-ascertain the matters determined by the first commission report, wrong in law? 8. I heard Advocate Sri.George Jacob, the learned counsel for the appellant and Advocate Sri.Surin George Iype, the learned counsel for the respondent/plaintiff. 9. The learned counsel appearing for the appellant assailed the remand order on the following grounds:- This is a case where the plaintiff did not even mount the witness box and give evidence to substantiate her case. Apart from the fact that F.A.O.No.26 of 2006 8 the plaintiff did not identify the plaint schedule properties, the identification made by the Advocate Commissioner as per Ext.C1(c) Survey plan was also erroneous and rightly discarded by the trial court. In a case where the plaintiff had failed to establish her title over the plaint schedule property, the natural corollary was to dismiss the appeal. The lower appellate court by remanding the case to the trial court was virtually allowing the plaintiff to fill up the lacuna in the evidence. The failure by the 1st defendant to prove his title does not take the plaintiff anywhere in a suit for recovery of possession on the strength of title. The evidence adduced by the defendant has not been rebutted by any convincing evidence adduced by the plaintiff. The lower appellate court acted illegally in exercising the power under Order 41 Rule 23 C.P.C and remanding the case F.A.O.No.26 of 2006 9 to the trial court . 10. I am afraid that I cannot agree with the above submissions. This is a case in which the plaintiff's title over 8 cents of land covered by Ext.A1 sale deed was not disputed by the defendant. The only dispute was regarding the identity of the plaint schedule item No.1. The plaintiff did take out a Commission and Ext.C1(c) is the Survey Plan submitted by the Commissioner. The Commissioner had identified the plaint schedule properties in Ext.C1(c) plan. Plot HJKDEFGH in Ext.C1(c) plan had been identified as the Plaint Schedule Item No.1 admeasuring 3.21Ares corresponding to 7.92 cents. Plot HJFGH had been identified as the Plaint Schedule Item No.2 admeasuring 1.26 Ares corresponding to 3.112 cents. Plot ABJFGHA in Ext.C1(c) had been identified by the Commissioner as the Plaint Schedule Item No.3 admeasuring 1.60 Ares corresponding to 3.952 cents. It was since the trial court was not prepared to accept Ext.C1(c) survey plan, that the F.A.O.No.26 of 2006 10 court came to the conclusion that the plaintiff had failed to prove the identity of the plaint schedule property and accordingly dismissed the suit. The lower appellate court also concurred with the view of the trial court that Ext.C1(c) plan cannot be safely relied upon as it is not shown to have been prepared with reference to survey records. I really do not understand whether the above observation has been made merely for the reason that the survey numbers have not been referred to either in the report or in the plan. It was admittedly a Commission with survey assistance. 11. Reliance was sought to be made by the defendant on Ext.B4 and B5 plans, stated to be re-survey plans. A perusal of Ext.B4 and B5 plans do not show that they are re- survey plans. Hence, the correctness or otherwise of Ext.C1 (c) plan could not have been decided with reference to Ext.B4 and B5 plans. I do not make any observations as to the acceptability or otherwise of Ext.C1(c) plan. If Ext.C1 (c) plan is eschewed from consideration, then the F.A.O.No.26 of 2006 11 identification of the plaint schedule Item Nos. 1 to 3 made by the Commissioner cannot survive. This is a case where the plaintiff had done everything within her control to get the plaint schedule properties identified. The reports and plan submitted by the Advocate Commissioner were not set aside also. Therefore, if ultimately the plan submitted by the Commissioner was to be discarded by the Court, then the plaintiff should have been given a further opportunity to identify the suit properties. The lower appellate court was thus fully justified in giving the plaintiff an opportunity to identify the plaint schedule properties by deputing a survey Commission. It does not amount to filling up the lacuna in the evidence. The failure on the part of the plaintiff to mount the witness box may presumably be attributable to the admission made in the written statement that the plaintiff has right over the 8 cents of land which is lying in a square shape. Anyway, now that the lower appellate court remanded the matter to the trial court after giving both F.A.O.No.26 of 2006 12 sides an opportunity to adduce further evidence, if any, the failure on the part of the plaintiff to mount the witness box prior to the remand, cannot be made much of by the defendant. I, therefore, do not find any good ground to interfere with the remand order passed by the lower appellate court. It goes without saying that both sides will have the opportunity to adduce further evidence, if deemed fit. In the case of the plaintiff, she will have to prove her title over the plaint schedule Item No.1 if she is desirous of getting a decree in her favour. The right of the defendant is to demolish the case of the plaintiff so as to non-suit her. The lower appellate court was fully justified in exercising the power under Order 41 Rule 23 C.P.C. If the plaintiff's appeal were to be dismissed accepting the view of the trial court that Ext.C1(c) plan was liable to be eschewed, failure of justice would have taken place. Hence, the opportunity given to the plaintiff to adduce further evidence to identify the properties cannot be faulted. None of the questions of F.A.O.No.26 of 2006 13 law raised by the appellant arises for consideration. The result of the foregoing discussion is that I see no reason to interfere with the order of remand passed by the lower appellate court. This appeal is accordingly dismissed. No costs. The parties shall appear before the trial court on 29.9.2009, without any further notice. Dated this the 28 th day of August, 2009. sd/- V. RAMKUMAR, JUDGE sj /True Copy/