IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 RSA.No. 1380 of 2004() ---------------------- AS.276/1997 of THE ADDL.DISTRICT COURT, KOTTAYAM OS.66/1993 of ADDL.MUNSIFF COURT,,KOTTAYAM .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------- SARAMMA W/O. CHACKO, KANNAMPURATHU HOUSE, PALLOM KARA, NATTAKOM VILLAGE, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S)/RESPONDENTS/RESPONDENTS/DEFENDANTS: ------------------------------------------------- 1. AMMINI W/O. KUNJUKUNJU, KUNNAMPURATHU KOCHUPARAMBIL HOUSE, PALLOM KARA, NATTAKOM VILLAGE, KOTTAYAM. 2. JOSE S/O. AMMINI, DO. DO. 3. SAJAN S/O. DO. DO. ADV. SRI.A.K.HARIDAS FOR R1 TO 3 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/09/2010, THE COURT ON 01/10/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.1380 OF 2004 ----------------------------------- Dated this the 1st day of October, 2010 J U D G M E N T The defeated plaintiff in a suit for declaration of title and injunction is the appellant herein challenging the concurrent decision rendered by the two courts below non-suiting her. 2. The plaintiff claimed title and possession over the plaint property having an extent of 1 acre and 93 cents in R.Sy.No.563/1, 3 and 4 (Old Sy.No.306/4A, 4B & 4C) in Nattakom Village under Ext.A1 sale deed. Her husband purchased 1 acre and 93 cents in the same survey numbers, under a different sale deed (Ext.A2), on the very same day of execution of Ext.A1 deed. The above two properties, together having an extent of 3 acres 86 cents, are lying contiguously within common boundaries, and eversince Exts.A1 and A2 deeds, the vendees thereunder are in absolute possession and enjoyment of such property, is the case of the appellant/plaintiff. RSA.1380/04 2 To the southwest of the entire property, the defendants are having their property comprised in R.Sy.No.563/2, but they had staked some claim over the reclaimed land on the eastern and northern sides of the property of the plaintiff comprised in R.Sy.No.563/1, was the case set up to seek declaration of title of the plaintiff over the plaint property and also perpetual prohibitory injunction against the defendants alleging threat of trespass over the reclaimed portions of her land, which, previously formed part of a paddy field. The defendants resisted the suit contending that the plaintiff never got title and possession over any portion of the property comprised in R.Sy.No.563/1. The properties covered by the sale deeds of the plaintiff and her husband and also the reclaimed land from the paddy field, comprising an extent of twenty five cents, according to the defendants, originally belonged to one Vathakkatu Mani Unnuttan. The predecessor of the 1st defendant's husband was carrying out the agricultural operations in the properties of the above Unnuttan. Twenty five cents of land comprised in R.Sy.No.563/1, which formed the crux of the disputes in the suit, was reclaimed and improved by planting coconut palms by the RSA.1380/04 3 grand father of the 1st defendant's husband, who after such reclamation of land, put up a hut and was an occupant therein enjoying such property, was the case of the defendants. In continuation of his possession, enjoyment with occupation over a hut, the 1st defendant's husband continued to be so and such twenty five cents comprised in R.Sy.Nos.563/1 and 2 lie as a single plot, was the case of the defendants. The dismissal of a prior suit instituted by the husband of the plaintiff in respect of the above property, in which the plaintiff had been examined as one among the witnesses, was also raised to contend that she has no legal right to institute the present suit. Disputing the title and possession of the plaintiff over the twenty five cents of reclaimed land, stated as situate in R.Sy.Nos.563/1 and 2, in the alternative, the defendants resisted the claim for declaration of title and injunction by the plaintiff setting up adverse possession over such land contending that their possession in continuation of that of their predecessor was open, continuous and notorious and with the hostile animus against the plaintiff and her predecessor, and as such, they have prescribed title over the property. RSA.1380/04 4 3. The issues settled by the court over the pleadings of the parties included the entitlement of the plaintiff for declaration of title, possession and injunction over the entire plaint property of 1 acre 93 cents as scheduled in the plaint, and the claim of title by adverse possession over twenty five cents of land comprised in R.Sy.No.563/1, forming part of the plaint schedule property, by the defendants. 4. On the side of the plaintiff, PWs.1 to 4 and Exts.A1 to A7, and for the defendants, DW1 and Exts.B1 and B2 were tendered in evidence. A report prepared by an advocate commissioner on the basis of site inspection over the plaint property was exhibited as Ext.C1. 5. On a meticulous consideration of the pleadings and evidence let in the case, the trial court came to the conclusion that the plaintiff failed to establish absolute and exclusive possession over the entire plaint property. Plaintiff had not taken any step to identify the suit property with reference to her RSA.1380/04 5 title deeds by taking out a commission and Ext.C1 report, which was obtained at the instance of the defendants indicated the existence of a hut under the occupation of the defendants in a portion of the suit property claimed by the plaintiff, and also the enjoyment of a pathway by the defendants through such property, persuaded the trial court to come to the conclusion that the plaintiff is not entitled to the reliefs canvassed in her suit. On the materials tendered in the case, which disclosed that a previous suit filed for injunction by the husband of the plaintiff, wherein she was also examined as a witness, had been dismissed, and the claim of the defendants, confined to twenty five cents alone in R.Sy.No.563/1, where the hut under their occupation is situate, is substantiated by Ext.C1 report, the trial court concluded that over the disputed portion in the plaint schedule property comprised in R.Sy.No.563/1, the plaintiff has failed to prove her title and possession and, therefore, she is not entitled to the declaration and injunction applied for in the suit. The dismissal of her suit on the above reasonings, after re-appreciation of the evidence, was confirmed by the lower appellate court, dismissing the RSA.1380/04 6 appeal preferred by the plaintiff challenging the decree of the trial court. 6. The learned counsel for the appellant impeaching the decision concurrently rendered by the two courts below for non-suiting the plaintiff contended that the lower appellate court after re-appreciation of the evidence had differed from the conclusion drawn by the trial court on material issues involved in the case, but, still, after holding that the plaintiff has title over the suit property and the claim of adverse possession raised by the defendants is meritless, which were diametrically opposite to the views taken by the trial court, confirmed the dismissal of the suit on the reasoning that the plaintiff has not established possession over the disputed portion of the plaint property. Possession follows title was ignored by the lower appellate court in dismissing the suit claim of the plaintiff after entering a finding that the plaintiff has proved her title over the property, according to the counsel. Having regard to Ext.A4 resurvey plan showing the identity of the property covered by the suit, and in the light of the specific prayer for recovery of the property, in RSA.1380/04 7 the alternative, if the defendants are found to be in possession of any portion of the suit property, according to the counsel, recovery of the property comprised in R.Sy.No.563/1 when the title over the plaint property was found in favour of the plaintiff negativing the claim of title by adverse possession canvassed by the defendants, should have been allowed by the lower appellate court. So, in reversal of the dismissal of the suit, it is urged that the appeal be allowed granting a decree for recovery of possession of the property comprised in R.Sy.No.563/1 from the defendants declaring the title of the plaintiff over the suit property with the decree of injunction against the defendants as canvassed in the suit. 7. Going through the judgments rendered by the two courts below with reference to the materials tendered in the case, though conflicting findings are seen entered by such courts on the material issues which arose for adjudication, both the courts have found that the plaintiff, in the given facts of the case, is not entitled to the reliefs canvassed in her suit. Though the plaint property is described as having an extent of 1 acre 93 RSA.1380/04 8 cents, the real matter in issue between the parties was over twenty five cents of land, reclaimed portion of paddy field comprised in R.Sy.No.563/1. Whereas the plaintiff contended that the defendants are having right and possession over only ten cents of land in R.Sy.No.563/2 the defendants contended that they are having title and possession over twenty five cents of land comprised in R.Sy.No.563/1 and 2. Plaintiff claimed title over the plaint property under Ext.A1 sale deed. It is her case that an equal extent of land, 1 acre and 93 cents in the same survey numbers covered by her deed was obtained by her husband on the same day of the transfer of the plaint property in her favour. Ext.A2 is the sale deed taken by her husband. Her husband had filed a suit for injunction in respect of both the properties covered by Exts.A1 and A2, which is admitted even by the plaintiff as lying contiguously, for a decree of injunction against the husband of the 1st defendant. The defendant in that suit having passed away pending suit, his legal heirs, the present defendants were impleaded as additional defendants. That suit for injunction was dismissed and Ext.B1 is the copy of the judgment. Plaintiff was examined as one among the witnesses in RSA.1380/04 9 the above case filed by her husband seeking a decree of prohibitory injunction against the defendants in respect of the properties covered by Exts.A1 and A2. Ext.B1 shows that the previous suit was dismissed since the defendants were found to be having possession over a portion of the suit property. After dismissal of that suit, plaintiff has filed the present suit in respect of the property covered by her sale deed, that is, 1 acre 93 cents of land. 8. The judgment rendered by the trial court shows that the 1st defendant in the suit had been appointed as the receiver of the property comprised in R.Sy.No.563/1. In the nature of the disputes involved in the suit arising for adjudication, which was confined to only over a portion of the plaint property comprised in R.Sy.No.563/1, over which a claim of rival title and possession was set up by the defendants contending that it is enjoyed by them along with a portion of the property comprised in R.Sy.No.563/2, determination of identity of the plaint property with reference to the survey records and Ext.A1 sale deed showing the portions of the plaint property as comprised in RSA.1380/04 10 different survey numbers described in the plaint, undoubtedly, was most crucial for a fair and proper disposal of the suit. Not only that no step was taken by the plaintiff to identify the suit property by having a survey commission with reference to her title deed, she did not have any objection to the Ext.C1 report prepared by an advocate commissioner soon after the institution of the suit at the instance of the defendants. The materials collected by the advocate commissioner, in such inspection, as disclosed by Ext.C1, supported the claim of the defendants of having possession over portions of the property in R.Sy.Nos.563/1 and 2, a total area of nearly twenty five cents. Though the defendants have not produced any documents to substantiate their title over that property as claimed by them, the trees planted in the above property identified by the Commissioner as comprised in R.Sy.No.563/1 and 2 showing that they are of uniform age, location of a hut occupied by the defendants in such property, the cultivation effected therein and also the pathway leading to such property, all prompted the courts below to hold that the defendants are having possession over the disputed property comprised in R.Sy.No.563/1. As RSA.1380/04 11 against Ext.C1 report collected through court, to substantiate her claim for possession, plaintiff relied on Ext.A6 certificate issued by the Village Officer long after the institution of the suit. The trial court has taken note that such a certificate had been obtained by the defendants long after the 1st defendant was appointed as a receiver of the disputed property involved in the suit, comprised in R.Sy.No.563/1, by the District court in a C.M.A. Previous suit filed by the husband of the plaintiff had been dismissed for the reason that the defendants were found to be in possession of the portions of the suit property, is also having much significance and in fact decisive in determining as to who is in possession of the disputed property comprised in R.Sy.No.563/1. 9. In Ext.B1 suit filed by the husband of the plaintiff also, the dispute was over the portion of the property in R.Sy.No.563/1 over which a rival claim of title and possession was set up by the defendants. Ext.A1 sale deed was also produced in the previous suit along with Ext.A2 sale deed of the husband of the plaintiff to claim an injunction over the property RSA.1380/04 12 covered by both the deeds having a total extent of 3 acres 86 cents. Plaintiff was also examined as a witness in that case as PW3. She was fully conscious of the disputes involved in such suit and also the adverse decision rendered thereunder when she filed the present suit for declaration of title and injunction on the basis of Ext.A1 sale deed. Without identifying the suit property, which is admitted as comprised in three survey numbers, none of the reliefs canvassed in her suit could have been granted is a foregone conclusion where the dispute pertained rival claim of possession over a portion of the property comprised in a distinct resurvey number, R.Sy.No.563/1. Other than producing Ext.A4 resurvey plan, in respect of which, serious dispute is raised by the defendants, no attempt was made by the plaintiff to identify the suit property. Ext.A4 survey plan had been pressed into service in the previous suit filed by her husband also to claim exclusive possession over the plaint property described thereunder to have a decree of injunction against the defendants, but of no avail. In that backdrop, it is not possible to place any reliance on Ext.A4 survey plan as a material piece of evidence supporting the claim of the plaintiff over the suit RSA.1380/04 13 property. Further more, that plan would not in any way show that the plaintiff has got exclusive possession over the plaint property. Both the courts in the incomplete data of evidence tendered by the plaintiff to sustain the reliefs canvassed in the suit and especially in the light of Ext.C1 report prepared by the advocate commissioner have found that the claim of the defendants as having possession over the disputed property comprised in R.Sy.563/1 and its enjoyment as a contiguous plot with their property in R.Sy.No.563/2 is more probable and acceptable. When the suit is one for declaration of title and the plaintiff has failed to prove her possession over the entire property scheduled in the plaint and no attempt was made by her to identify the suit property, there is no merit in the submission made by the learned counsel for the appellant/plaintiff that recovery of possession from the defendants has to be granted on the basis of title. What is the property to be recovered from the possession of the defendants even if such recovery is found allowable can be granted only after identification of such property. Recovery of possession over a property with reference to a sub division of a survey number from the property of the RSA.1380/04 14 defendants, by no stretch of imagination, can be granted without proper identification and determination of the properties more particularly, the plaint schedule property. 10. The learned counsel for the plaintiff realising fully well that recovery of possession from the defendants in the suit is not possible without an identification of the suit property and also determination of the portion of the property reduced into possession by the defendants forcefully urged for a remand of the case after setting aside the judgments of the courts below to enable the plaintiff to identify the suit property by a survey commission with reference to the title deeds. Title over the suit property has been found in favour of the plaintiff and the claim of adverse possession canvassed by the defendants was found against by the lower appellate court, was highlighted by the learned counsel to persuade me to accede to the request for a remand. The failure of the defendants to substantiate the title claimed by them over the portion of property comprised in R.Sy.No.563/1, it is seen, persuaded the lower appellate court to rely on Ext.A1 with Ext.A4 to hold that the plaintiff has got title RSA.1380/04 15 over the property in R.Sy.No.563/1. Ext.A4 was only a resurvey plan. That plan had been produced in the previous suit filed by the plaintiff's husband, to substantiate the relief of injunction over the entire property. To determine the claim of title, especially where no identification as under Ext.A4 had been made with reference to title deed, that plan has not much value. In Ext.A1 title deed of the plaintiff transfer of portions of property comprised in R.Sy.No.563/1 is included, by itself, is not sufficient to conclude that the plaintiff obtained possession over that portion of the property. The disputed property is a reclaimed land from a paddy field and the materials gathered under Ext.C1 report would indicate that it is in the possession and enjoyment of the defendants along with their property comprised in R.Sy.No.563/2. Properties comprised in both the sub divisions are lying as a contiguous plot, in which, the defendants are also having occupation over a building situate therein. That being so, the conclusion of the lower appellate court that Ext.A1 coupled with Ext.A4 demonstrate that the plaintiff has title over the property in R.Sy.No.563/1, as seen in paragraph 14 of its judgment, in the given facts of the case and RSA.1380/04 16 the nature of the controversy, which arose for adjudication, cannot be given any value. So far as the request made for remand to have an identification of the suit property, I find it is not only highly belated but also not worthy of any merit. Present suit was instituted in 1993 after a suit for injunction was filed by the husband of the plaintiff earlier. The disputed property over which rival claim of title and possession was set up by the defendants, twenty five cents of land comprised in R.Sy.No.563/1 is covered by the sale deeds taken by both the plaintiff and her husband, was the case of the plaintiff. Property covered by both the sale deeds was the subject matter in the previous suit filed by the husband of the plaintiff when a decree of injunction was sought against the defendants. True, plaintiff can seek declaration of title and possession only in respect of the property covered by her sale deed (Ext.A1) and not that of the property to her husband. But in view of the dispute over the portion of the property, which is covered by the deeds of both of them, plaintiff and her husband, without identification of the entire property covered by the deeds, there was no possibility of a resolution. No step was taken to have such identification of the entire RSA.1380/04 17 property, which, in fact, it is evident was not attempted to since the plaintiff had no possession over the disputed property comprised in R.Sy.No.563/1, as it remained all along under the possession and enjoyment of the defendants. The request for remand of the case to have an identification of the suit property, in the facts and circumstances of the case, cannot at all be granted. The dismissal of the suit by the trial court as confirmed by the first appellate court does not suffer from any infirmity and it deserves only to be upheld, and I do so. Appeal is dismissed directing both sides to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp