Allowed

Muhammed v. Ibrahim

Kerala HC21 Mar 2016RSA/156/2016

Case brief

AI extract

What is this about?

Regular second appeal in a property suit for recovery of possession. The High Court set aside judgments where the plaintiff was non-suited due to survey mismatches, directed remittal for fresh disposal as the Advocate Commissioner failed to identify property via title deeds, and ordered trial for six months.

What did the court decide?

Impugned judgments set aside; suit remitted to trial court for fresh disposal within six months.

Muhammed Vs Ibrahim — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938

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RSA.No. 156 of 2016 (B)

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----------------------(AGAINST THE JUDGMENT AND DECREE IN AS.NO. 4/2013 OF SUB COURT, MANJERI)

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(AGAINST THE JUDGMENT IN OS.NO. 207/2006 OF MUNSIFF COURT, MANJERI)

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----------------------

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APPELLANT/APPELLANT/PLAINTIFF:

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MUHAMMED, AGED 56 YEARS, S/O.KARIKKADANPOYIL KUNHOYI, AREACODE AMSOM, MUNDAMBRA DESOM, UGRAPURAM P.O., ERNAD TALUK.

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BY ADV. SRI.SAJU.S.A

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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1. IBRAHIM, AGED 53 YEARS, S/O.KAKKIDUMBAN ALI, AREACODE AMSOM, MUNDAMBRA DESOM, UGRAPURAM P.O., ERNAD TALUK. PIN - 676 121.

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2. AMINA, AGED 63 YEARS, D/O.KAKKIDUMBAN ALI, AREACODE AMSOM, MUNDAMBRA DESOM, UGRAPURAM P.O., ERNAD TALUK, PIN - 676 121.

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R1 & R2 BY ADVS. SRI.K.M.SATHYANATHA MENON

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SMT.KAVERY S THAMPI

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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P.B.SURESH KUMAR, J.

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= = = = = = = = = = =

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R.S.A.No.156 of 2016

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= = = = = = = = = = =

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Dated this the 21^st day of March, 2016.

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J U D G M E N T

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The plaintiff in a suit for recovery of possession

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has come up in this second appeal challenging the concurrent decisions against him in the suit.

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2. The suit as instituted was one for injunction. The case set up by the plaintiff in the suit was that he is the owner in possession of the plaint A schedule property as obtained by him by virtue of Ext.A1 kanam assignment deed and that the defendants who own properties on the east of the plaint A schedule property are attempting to trespass into the plaint A schedule property. The defendants disputed the identity of the plaint A schedule property. They also contended that the plaint A schedule property is not the property covered by Ext.A1 kanam assignment deed. They further contended that the first defendant has

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obtained 17¼ cents of property and the second defendant has obtained 6½ cents of property by virtue of partition deed No.1012/88 of Arikkode SRO and the plaint A schedule property is described in the plaint including a portion of the aforesaid properties of the defendants as well.

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3 . In the light of the contentions raised by the defendants, an Advocate Commissioner was deputed by the trial court to identify the plaint A schedule property. Ext.C1 is the interim report and Ext.C3 is the final report of the Advocate Commissioner. Ext.C2 is the plan prepared by the Advocate Commissioner with the aid of the Taluk Surveyor.

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In Ext.C2 plan, the Advocate Commissioner has shown the plaint A schedule property as also the property of the defendants. The plot ABJ in Ext.C2 plan is shown by the Advocate Commissioner as the disputed property. In the light of the report submitted by the Advocate Commissioner, the plaint was amended and a prayer for recovery of possession of the plot ABJ was incorporated stating that the

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defendants are in possession of the said plot. The plot ABJ shown in Ext.C2 plan by the Advocate Commissioner was also scheduled in the plaint as the plaint B schedule property. According to the plaintiff, the plaint B schedule property is part of the plaint A schedule property. In Ext.C3 report, the Advocate Commissioner stated that after the resurvey, the property of the plaintiff comes under new survey No.17/6 and the properties of the defendants come under new survey Nos.17/22 and 17/23. The Advocate Commissioner also reported in Ext.C3 that the plot ABJ sought to be recovered by the plaintiff from the defendants comes under new survey Nos.17/22 and 17/23. Since the disputed plot comes under the survey numbers of the properties owned by the defendants, the trial court took the view that the plaintiff has not established title to the disputed plot and consequently non-suited the plaintiff. Though the plaintiff took up the matter in appeal, the appellate court confirmed the decision of the trial court.

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While confirming the decision of the trial court, the appellate court also noticed that Ext.A3 series tax receipts produced by the plaintiff to establish title to the disputed property also indicates that the plaint A schedule property comes only under new survey No.17/6. The plaintiff is aggrieved by the said decisions of the courts below and hence this second appeal.

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4 . When the second appeal came up for admission, Advocate K.M.Sathyanatha Menon took notice for the respondents. Consequently, the matter was heard on merits.

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5 . The learned counsel for the appellant

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contended that the plaintiff is non-suited solely for the reason that the Advocate Commissioner has reported in Ext.C3 that the disputed property comes under the survey numbers of the properties owned by the defendants. According to the learned counsel, the Advocate Commissioner himself has stated in Ext.C3 report that the

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disputed property is part of the plaint A schedule property under the old survey records. As such, according to the learned counsel, merely for the reason that the disputed property comes under the survey numbers of the properties owned by the defendants, it cannot be contended that the same is not part of the plaint A schedule property. The learned counsel also pointed out that in so far as there has been a change in the survey numbers of the properties, in view of the dispute as to the identity raised by the defendants, the Advocate Commissioner ought to have identified the suit property with reference to the title deed of the plaintiff. She also contended that the defendants have not produced the title deed of their properties and as such, one is unable to ascertain the correctness of the findings rendered by the Advocate Commissioner as to the identity and the survey numbers of the properties owned by the defendants. In the aforesaid circumstances, according to the learned counsel for the appellant, in the light of the

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specific finding rendered by the Advocate Commissioner in Ext.C3 report that the disputed property was part of the plaint A schedule property as per the old survey records, the impugned decisions are to be set aside and the suit has to be decreed as prayed for.

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6 . Per contra, the learned counsel for the defendants vehemently contended that merely for the reason that the defendants have not produced their title deeds, the suit cannot be decreed. According to the learned counsel, in so far as the suit is one for recovery of possession based on title, the plaintiff is obliged to establish his title over the property. It is specifically contended by the learned counsel that Ext.A3 series tax receipts produced by the plaintiff to establish his title over the suit property only refers to the new survey No.17/6 and that the plaintiff has admitted in his evidence that Ext.A3 series tax receipts have been issued correctly in respect of the plaint A schedule property. According to the learned counsel, in so

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far as the plaintiff has not established his title over the disputed plot, the impugned decisions are perfectly in order.

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7 . In the light of the rival submissions made at

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the Bar, the following question s are formulated for decision in the second appeal:

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(i) Were the courts below justified in non-suiting the plaintiff on the ground that the disputed property

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comes under the survey numbers of the properties owned by the defendants?

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(ii) Were the materials placed by the plaintiff sufficient to hold that the plaintiff has established title to the disputed property?

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8 . As noted above, the suit is one for recovery

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of possession of the plot ABJ in Ext.C2 plan based on title. As rightly pointed out by the learned counsel for the defendants, in a suit of this nature, the plaintiff has to establish his title over the disputed property. As noted above, the impugned judgments proceed solely on the basis

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that the disputed property does not come under the survey number shown in Ext.A3 series tax receipts produced by the plaintiff and it comes under the survey numbers of the properties of the defendants. The plaintiff is claiming title to the suit property on the strength of Ext.A1 assignment deed of the year 1979. It is beyond dispute that re-survey was conducted in the locality after Ext.A1 assignment deed. As such, in a case of this nature, the title to the property cannot be decided solely based on the survey records which came into existence after the acquisition of property by the parties concerned. In the said view of the matter, the impugned decisions by which the plaintiff was non-suited solely based on the survey records cannot be accepted as correct. The question No.(i) formulated for decision is thus answered in favour of the plaintiff.

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9 . The question remaining to be considered is as to whether the materials on record are sufficient to hold that the plaintiff has established title to the disputed property.

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R.S.A.No.156/2016.

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Ext.C2 plan appended to Ext.C3 report submitted by the Advocate Commissioner is a plan prepared by the Taluk Surveyor who assisted the Advocate Commissioner. As per Ext.C2 plan, the properties of the defendants are separated from the plaint A schedule property by the straight line JM having a length of 57.4 meters. The disputed plot ABJ is a triangular plot situated on the eastern side of the line JM. In page No.4 of Ext.C3 report, the Advocate Commissioner has stated that as per the old survey records, the plaint A schedule property was separated from the property of the defendants by the line JB. The relevant portion of the report reads thus:

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“ Aj|Lp kŸ]W vñO kup y¡Svÿ NkWLqU At¨OSÒL¥ Aj|Lp kŸ]W vñOv]R£ W]uR¨ Af]¡¾]p]sOç kæLj]¤ J SkLp]£]¤ j]Ð V SkLWOÐ 57.4 o}ã¡ j}toOç Sj¡SqX 'A' SkLp]£]¤ j]Ð V W]u¨O oLr] 'B' SkLp]£]sPRa J SkLp]£]¤ vqOÐfLp] y¡Svÿp]¤ kr´f]¤ j]ÐOU ojô]sL¨L¢ yLi]\ÿO. IÐL¤ CSÕL¥ r}y¡Rvÿp]¤ J SkLp]£]¤ j]ÐOç 574 o}ã¡ j}toOç KqO straight line BeOçRfÐOU ojô]sL¨L¢ Wu]´O. ”

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As per Ext.C2 plan, the point B is situated 4 meters towards

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east from the point A in JM line. In other words, according

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to the Advocate Commissioner, the disputed property as per the old survey records was part of the plaint A schedule property. According to me, it is not safe to decide the title of the plaintiff in this case solely based on the said report of the Advocate Commissioner for various reasons. First of all, Ext.A1 title deed of the plaintiff indicates that the property co vered therein comprises under re-survey No.454/1B. However, in the plaint, the survey number of the property is shown as 371/8. Ext.C3 report of the Advocate Commissioner proceeds on the basis that the old survey number of the properties of the parties is 371/8. The counsel for the appellant is unable to explain as to the basis of the said change. It is necessary to understand the reason for the said change in the matter of deciding the title of the plaintiff over the disputed property since the defendants have a specific contention that the suit property is not a property covered by Ext.A1 assignment deed. Further, in Ext.C3 report, it is recited by the Advocate

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Commissioner that the properties of the defendants come under re-survey No.17/22 and 17/23. There is nothing on record to indicate as to the basis for the said statement in the report of the Advocate Commissioner. As pointed out earlier, the defendants have not produced their title deeds before the courts below. Further, the Advocate Commissioner has also not taken any endeavor to identify the suit property with reference to the title deeds of the parties. In the said circumstances, with the materials on record, I am unable to decide the question as to whether the plaintiff has established title to the disputed property. As such, in so far as the suit is one for recovery of possession based on title, I am of the view that the suit is liable to be remitted for fresh disposal.

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In the result, the appeal is allowed, the impugned judgments are set aside and the suit is remitted to the trial court for fresh disposal. The parties are free to adduce further evidence in the suit. Having regard to the peculiar

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facts and circumstances of this case, I deem it appropriate to direct the trial court to dispose of the suit within six months from the date of receipt of a copy of this judgment. All the interlocutory applications in the appeal are closed.

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Sd/- P.B.SURESH KUMAR,

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Kvs/-

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// true copy //

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PA TO JUDGE.

Muhammed v. Ibrahim

Case brief

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Muhammed v. Ibrahim

Case brief

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