IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 SA.No. 420 of 1999(G) ------------------------------- AS.NO.83/1994 OF DISTRICT COURT, THRISSUR, OS.NO.196/1985 OF MUNSIFF'S COURT, WADAKKANCHERRY] .................... APPELLANT/RESPONDENT/PLAINTIFF: -------------------------------------------------------- KANDAN, S/O. ANCHUKANDATHIL PALLI, ALUR VILLAGE AND DESOM, THALAPPILLY TALUK. BY ADVS. SMT.M.HEMALATHA, SRI.K.S.BALAKRISHNAN, SRI.K.V.NISHAD, SRI.S.RAMESH CHANDRAN. RESPONDENT/APPELLANT/DEFENDANT: ----------------------------------------------------------- SANKARANKUTTY NAIR ALIAS SANKARAN, S/O. PATTIPARA SREEDEVI AMMA, PUTHUR DESOM, KAIPARAMBA VILLAGE, TRICHUR TALUK. BY ADVS. SRI.P.R.VENKETESH, SRI.P.R.RAJA. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.A. NO.420/1999: ORDER ON C.M.P. NO. 1081/1999 IN S.A. NO.420/1999 DISMISSED 06/04/2011. SD/- P.BHAVADASAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.BHAVADASAN, J. ---------------------------- S.A.No. 420 of 1999 --------------------------------- Dated this the 6th day of April, 2011 JUDGMENT The Plaintiff in O.S. No.196/1985 before the Munsiff's Court, Wadakkanchery, who was non-suited by the lower appellate court is the appellant. 2. The short facts necessary for the disposal of the appeal are as follows: One may refer to commissioner report and plan C2(a) to understand the nature of dispute. The plot in dispute is shown as A plot(B schedule in plaint) in blue shaded plan. The plaintiff laid claim to the said property on the basis of Exts. A2 and A3 document dated 8.2.1971 and 19.6. 1985. According to the plaintiff, the defendant had no property in survey No.1027. Plaint schedule property exclusively belongs to the plaintiff and is in survey 1011. It was alleged that the defendant had trespassed into A plot and reduced it into his possession. Therefore, the suit was laid for a recovery of possession on the strength of title. 3. The defendant resisted the suit by pointing out that the plaintiff did not have title to A plot and even if there is some document showing the plot belongs to the plaintiff it is not binding on the S.A.No. 420 of 1999 2 defendant. He contended that he had about 3 or 4 cents reclaimed river puramboke comprised in Survey No.1011 included in the title deed. He claimed that he acquired the property as Ext.B1 and Ext.B2. He obtained the reclaimed land along with the land covered by Exts.B2 and B3. Pointing out that he had not trespassed into any portion of the property as alleged by the plaintiff, he prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 4 and documents marked as Exts. A1 to A3 from the side of the plaintiff. DWs 1 and 2 were examined and defendant had Exts.B1 to B3 marked. Exts. C1, C2, C2(a) and C2(b) are the commissioner's report, survey plan and report of the Taluk Surveyor. The trial court found that the plaintiff had succeeded in establishing the title to A plot and therefore, granted a decree in favour of the plaintiff. The aggrieved defendant took up the matter in appeal as A.S.No. 83/1994 before the District Court, Thrissur. The District Court on a re-evaluation of the evidence in the case found that plaintiff had miserably failed to establish any manner of right over A plot shown in C2(a) and also had observed that plaintiff did not care to have the property covered by her documents of title, identified. Accordingly, appeal was allowed and the decree of the trial S.A.No. 420 of 1999 3 court was set aside. Hence the second appeal. 5. Notice is seen issued on the following substantial questions of law: 1.Whether the plaintiff has title to 'B' schedule property and hence entitled to recover possession of the same from the defendant ? 2. Whether the plaintiff is entitled to mesne profit ? 3. Whether the plaintiff is entitled to injunction as prayed for? 4. Whether the plaintiff's title is lost by adverse possession and limitation ? 6. The learned counsel appearing for the appellant very vehementally contended that the lower appellate court was not justified in reversing the judgment and decree of the trial court. The attempt was to show that the defendant had no property what so ever in survey No.1011 and his property was comprised in and confined to Survey No.1027. Survey No.1011 is the river puramboke and the case put forward by the plaintiff is that she obtained 8 cents by virtue of Ext.A3 and rest 16 cents the plaintiff had reclaimed river puramboke. Therefore, the plaintiff claimed 24 cents of property in survey No.1011. The learned counsel went on to point out that the trial court has considered the matter in considerable detail and had come to the conclusion that the defendant cannot have any property in Survey S.A.No. 420 of 1999 4 No.1011. 7. It was further contended that the lower appellate court was not correct in holding that the property has not been identified. The lower appellate court did not appreciated the contentions and allegations in proper perspective and that has resulted in miscarriage of justice. 8. The learned counsel appearing for the respondent on the other hand contended that the lower appellate court has considered the boundaries of the respective properties of the parties and had come to the conclusion that Ext.A3 is the document created for the purpose of the suit. The lower appellate court found that the plaintiff had not cared to get her property identified as per her documents of title and that was fatal to the case of the plaintiff. It is also pointed out that going by the boundaries mentioned in Ext.A3 it can be found that the document has been created only for the purpose of the suit. The lower appellate court on an appreciation of the evidence in the case come to the conclusion that the plaintiff has failed to establish his title to plot A mentioned Exts. C2 and shown in C2(a) plan. That being a question of fact no interference is called for under Section 100 of the Civil Procedure Code. S.A.No. 420 of 1999 5 9. The plaintiff laid claims to A and B plot shown in Ext. C2(a) as per Ext.A1, A2 and A3. The definite case of the plaintiff is that the plaintiff is in possession of 24 cents of property in survey No.1011 out of which she acquired 8 cents as per Ext.A3 and had reclaimed 16 cents of river puramboke. The complaint of the plaintiff was that out of the 8 cents purchased by her, 6 cents have been trespassed upon by the defendant and reduced into his possession. The further claim of the plaintiff is that the defendant had no right over any extent of property comprised in survey No.1011, which is a river puramboke. 10. If one goes by the above allegation, then A plot shown is 6 cents of property which is covered by the document of title of the plaintiff. The question is whether the claim is justified. There are two documents namely Exts. A2 and A3. Ext.A2 is the deed by which Sankaran got the property, the extent of which is shown as 8 cents and the boundaries are shown as follows: µßÝAí _ ÉáÝ É¿ßEÞV _ µIX ÎÞØíxVAí ÕßWAáK ÈßÜ¢ Õ¿Aí _ çµÞGÏßW ÖÞøÆÏíAá ÕßWAáK ÈßÜ¢ æÄAí _ çÕæù ÈßÜ¢ S.A.No. 420 of 1999 6 11. It is not in dispute that the property shown as northern side is the property now in the possession of the defendant. It is interesting to note that the southern boundary is shown as paddy field. If one goes by the recital in Ext.A2 it can be seen that the property covered by the document cannot be A plot. Ext.A3, is a document executed by Sankaran in favour of the present plaintiff. That relates to 8 cents. It is interesting to note the boundaries shown therein. µßÝAí _ Survey No.1011 ÉáÝ Õ¿Aí _ Survey No.1027 ÈßÜÕá¢ 1011 ÈOV ÉáÝÏá¢ É¿ßEÞV _ Survey No.1027 ÈßÜ¢ æÄAí _ Survey No.1011ÉáÝ ÈßµJßÏ ØíÅÜ¢ 12. The northern boundary obviously given in Ext.A3 cannot be correct as given by the executant going by C2(a) plan. In fact, the plaintiff did not take steps to have the properties covered by Exts.A2 and A3 identified. The lower appellate court has considered this aspect in considerable detail and has found there are latches on the part of the plaintiff and it is fatal to her case. The court below have noticed that the southern boundary of Ext.A2 is not described as 'Vera nilam' (other paddy land). It has also taken note of the recital in Ext.A2 document that the western boundary is shown as Kandan master's nilam and as correctly noticed by the said court, Kandan Master is S.A.No. 420 of 1999 7 none other than the plaintiff himself. The evidence in the case shows that the property on the western side of the property owned and possessed by the plaintiff admittedly belonged to the defendant. Ext.B3 is the document of title of the defendant. Exts. B1 and B2 are the properties obtained by the defendant covered by Ext.B3 document. The case of the defendant is that the portion shown as A plot in C2(a), was given possession along with the property covered by the assignment deed and he has been in possession of the same. He says paddy cultivation is being done in plot A. 13. It is true that one has to notice that Exts.A2 and B3 were simultaneously executed. It is true that Saradha had not acquired any property in survey No.1011 to the northern boundary. 14. One finds it difficult to rely on Exts.A2 and A3. In Ext.A3 the northern boundary is shown as survey No.1011. Going by the commissioner report C2 plan that can never be correct. Ext.A2 northern boundary is shown as the property sold to Saradha. The northern boundary of Ext.A2 does not indicate properties owned by Saradha or Kandan Master. There is considerable difference between the northern boundary of Exts.A2 and A3. 15. This court repeatedly asked the learned counsel for the appellant whether the appellant had a case that the predecessor-in- S.A.No. 420 of 1999 8 interest of the appellant was the owner of A plot. The answer was in the negative. 16. One may remember that the case put forward by the plaintiff is that she acquired 8 cents by virtue of document of title put forward by her and has reclaimed 16 cents of river puramboke. As already noticed Exts.A2 and A3 cannot be reconciled. If one goes by recital in Ext.A2, the property that is conveyed must have portion of B plot. Under these circumstances, the lower appellate court found that non identification of the property by the plaintiff was deliberate and that Ext.A3 was created only for the purpose of instituting the suit. 17. The learned counsel appearing for the appellant very vehementally contended that the defendant had no right over any portion of the property comprised in Survey No.1011 and none of his document of title takes in any portion in survey No.1011. One has to remember that the suit is based on title. If the plaintiff fails to adduce sufficient evidence to show that she has substituting title, the plaintiff cannot succeed. The burden is entirely on the plaintiff. The lower appellate court has evaluated the entire evidence and found that plaintiff was unable to establish title to A plot shown in Commissioner Report. S.A.No. 420 of 1999 9 18. The learned counsel for the appellant then made a fervent plea for an opportunity to get the properties identified with respect to the document of title. 19. It is too late now to make such a prayer since suit is of the year 1985. More than two and half decades have elapsed. So remand of the matter now for identifying the property will be doing injustice to respondent. The result is that the second appeal is only to be dismissed. I do so. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln