In a second appeal regarding recovery of possession, the court affirmed the lower appellate court's decree. The court held that documents and a commissioner's report sufficiently identified the disputed property, dismissing the appeal on facts.
The second appeal was dismissed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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)
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.
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.
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.
SA No.884/89
4
identified, dismissed the suit.
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.
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 ?
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
SA No.884/89
8
second appeal is only to be dismissed.
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.
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.
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.
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
3 issues framed by the court
Whether the lower appellate court was correct in decreeing a suit for recovery of possession when the property description did not tally with the plaint schedules.
Whether the lower appellate court was justified in receiving additional evidence at the appellate stage to identify the disputed property.
Whether substantial questions of law arose regarding the identification of the property and the burden of proof on the defendants.
THANNU PILLAI BALAN PILLAI LRS
SUBHADRA AMMA INDIRA BAI AMMA
P BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
