IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 865 of 1994()
1. AUGUSTY JOSEPH
... Petitioner
Vs
1. KERALA STATE
... Respondent
For Petitioner :SRI.K.SURENDRA MOHAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :04/12/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO. 865 OF 1994
===========================
Dated this the 4th day of December, 2007
JUDGMENT
Plaintiff in O.S.146/1984 on the file of
Munsiff Court, Vaikom is the appellant. Defendants
are the respondents. Second respondent is the
contractor and first respondent the State , third
respondent Junior Engineer of P.W.D and fourth
respondent the Panchayat Executive Officer.
Appellant instituted the suit claiming a decree for
recovery of possession of the plaint schedule
property and for a mandatory injunction for
restoration of the compound wall allegedly
destroyed by respondents and permanent prohibitory
injunction from encroaching further into the
property of the appellant. Case of appellant is
that plaint schedule property is the portion of the
property belonging to appellant under Ext.A1
purchase certificate and property having an extent
of 6 acres and 10 cents in survey No.371/2 belong
S.A.865/1994 2
to him on tenancy right and its jenm right was
purchased as per order in O.A.654/1977 from Land
Tribunal, Vaikom. It was contended that along the
middle portion of entire property from south to
north, appellant surrendered a portion of the
property for Peruva-Monippally road and the road
on reaching the northern end of the property of the
appellant turns towards the west and proceeds
further and there was a double phased kayyala on
the north having a width of 5 to 8 feet and the
northern kayyala was having a length of 510 feet
and on 14.2.1978 while appellant was out of station
V.K.Bhaskaran, contractor under third respondent
without consent and knowledge of appellant
forcibly dismantled the kayyala and the materials
used for the kayyala were destroyed and appellant
sustained a damage of Rs.9,540/-. It was contended
that to avoid multiplicity of suit, he is not
claiming damages for the same. It was contended
that respondents have no right to encroach upon the
remaining propety of appellant than the portion
S.A.865/1994 3
surrendered for the purpose of the road and as
portion of the property, which is shown as the
plaint schedule property, was trespassed upon and
added to the road after demolishing the compound
wall, appellant is entitled to a decree for
recovery possession of the same after restoring
the kayyala to its original position. Second
respondent contractor filed a written statement
contending that he did not demolish any compound
wall and he is an unnecessary party to the suit.
Third respondent filed a written statement
contending that the existing way was widened into a
road by utilising the land surrendered by
adjoining owners and the respective property owners
surrendered land to enable widening of road to a
width of 8 meters and in 1972 August itself stones
were planted showing the surrendered portion of the
property and appellant did not raise any objection
with regard to the alignment and no portion of the
remaining property of appellant was encroached
upon and no compound wall was demolished and
S.A.865/1994 4
therefore appellant is not entitled to the decree
sought for.
2. Learned Munsiff on the evidence of Pws. 1
to 4, DW1 and Exts.A1 to A7, Exts.B1, B2 and
Ext.C1 dismissed the suit holding that appellant
failed to establish that plaint schedule property
was encroached upon by respondents to form the
road or that respondents demolished the double
faced kayyala as claimed. The suit was dismissed.
Appellant challenged the judgment before District
Court,Kottayam in A.S.350/1986. Learned Additional
District Judge on reappreciation of evidence found
tht there is no evidence to prove that for
widening the road or formation of the road, any
portion of the property of appellant other than
the surrendered area was trespassed upon by
respondents or they demolished the kayyala and
appellant is not entitled to the decree sought for.
Appeal was dismissed. It is challenged in the
second appeal.
3. Second appeal was admitted formulating the
S.A.865/1994 5
following substantial questions of law.
1. Whether it is the duty of the
appellant to produce negative
evidence to prove encroachment of
the plaint schedule property, as
it does not form part of the
surrendered property.
2. In a case where possession
and ownership of the property is
not disputed, whether appellant is
to prove the title of the
property again.
3. Whether courts below on the
evidence were justified in holding
that appellant did not establish
title to the plaint schedule
property.
4. Learned counsel appearing for appellant and
second respondent were heard.
5. The argument of the learned counsel is that
respondents have no case that there is any
S.A.865/1994 6
puramboke land adjoining the property of appellant
and their case is also that the road was formed by
making use of the surrendered land by appellant
and as Title of the appellant is not disputed and
is proved by Ext.A1 and Ext.C1 report establish
that existing kayyala on the south and west of the
road was demolished for widening the road burden
is on the respondents to prove that compound wall
was existing in the surrendered portion of the
property and on evidence it should have been
found that as appellant has title to the plaint
schedule property, he is entitled to the decree for
recovery of possession. Learned counsel also
argued that under Ext.A4 appellant requested the
Panchayat for a copy of the surrender form and
under Ext.A5 it was replied that records are not
available with the Panchayat and in such
circumstance, appellant has established that he did
not surrender the plaint schedule property and as
he has title, courts below should have granted the
decree. Learned counsel finally argued that before
S.A.865/1994 7
the first appellate court, appellant sought an
opportunity to prove the extent of property
trespassed upon over and above the surrendered
land and that opportunity should have been granted
and in the light of the evidence of DW1 and the
contentions in the written statement that the
surrendered land is only having a width of 8 meters
, opportunity is to be granted to the appellant to
prove that the existing road is having more width
than 8 metres and the additional extent is the
trespassed area and appellant is entitled to
recover possession of the same on the strength of
title and appeal is to be allowed.
6. Ext.A1 purchase certificate obtained by
appellant pursuant to the order in O.A.654/1977
only establish that jenm right over 6 acres 10
cents in survey No.371/2 of Njeezhoor Village was
assigned to the appellant. Appellant also admitted
that property was surrendered for formation of the
road. In the absence of any documentary evidence
to prove the actual extent and description of the
S.A.865/1994 8
property so surrendered it is not possible to fix
the property surrendered by appellant for the
purpose of the road. As according to appellant, he
had surrendered a portion of his property and
pursuant to the surrender originally existing way
was formed into a road which turns towards the
northern side splitting up his property into two
plots, it is for him to prove that existing road is
annexing more land. The case of appellant is that
on the south and west of that road there existed a
double faced stone compound wall constructed by
appellant and that portion of the property where
the compound wall was standing was not surrendered
and only the property which lies further to the
north and east of the stone wall was surrendered
for forming the road and respondents illegally
demolished the compound wall and encroahced a
portion which was not acquired or surrendered,
appellant is entitled to recovey possession of the
same. Courts below on the evidence found that
there is no material to fix what exactly is the
S.A.865/1994 9
property which was originally surrendered by
appellant. Though appellant filed an application
before the Panchayat to get copy of the surrender
document, Ext.A5 shows that records are not
available with the Panchayat. There is no
material available to find out what exactly is the
description and measurement of the property which
was surrendered by appellant to enable
respondents to form the road.
7. As the suit is one for declaration of title
and recovery of possession, burden is on the
appellant to prove his title. The fact that
respondents did not establish the identity of the
property surrendered will not enable him to get a
decree. Neither the failure of respondents to
prove the identity of the property surrendered or
the failure to prove the title to the disputed
portion of the property will enable him to the
decree. The question is whether on the evidence,
it is possible to hold that plaint schedule
property, which is described as the property
S.A.865/1994 10
encroached upon by respondents to form the road,
was not surrendered by the appellant. Apart from
alleging that plaint schedule property was not
surrendered, appellant did not specifically plead
what exactly was the property surrendered. Learned
counsel argued that in the light of the contentions
raised in the written statement that the road was
formed after the adjoining owners surrendered 8
metres width of land and if the road touching the
plaint schedule property as it now stands is
having a width of more than 8 metres, it could only
be by encroaching upon the remaining portion of the
appellant which was not surrendered. But no
evidence was adduced to prove that existing width
of the road, either on the north or the west, was
more than 8 metres. Ext.C1 report does not give
any indication to find out the width of the road
through which it passes through the property of the
appellant covered under Ext.A1 title deed.
Therefore on the material evidence, it is not
possible to hold that plaint schedule property is
S.A.865/1994 11
part of the property belonging to appellant which
was not surrendered by appellant for the
formation of the road.
8. It is seen from paragraph 2 of the written
statement filed by third respondent that
respondents have a specific case that for the
formation of the road 8 metres width of land was
surrendered by the respective owners and the land
so surrendered was measured and stones were fixed
on either side of the road in 1972. Inspite of
that pleading, appellant did not make any attempt
to get the Commissioner identified the property
with reference to the stones so fixed by the
Government in August, 1972. When no such attempt
was made to identify the property which was
surrendered, first appellate court did not grant an
opportunity, though an order of remand was sought.
In the nature and circumstance of the case, I do
not find that it is in the interest of justice to
remand the suit at this belated stage, especially
when appellant did not make any attempt to get the
S.A.865/1994 12
property identified with reference to the survey
stones fixed by the Government after the land was
surrendered by the owners, for the formation of
road. The burden to prove the identity of
property cannot be shifted to the shoulders of the
respondents. If the appellant failed to establish
that plaint schedule property is not the property
which was surrendered, he is not entitled to the
decree sought for. On the evidence, courts below
rightly found that appellant did not establish that
plaint schedule property is a portion of the
property, which was not surrendered by him for
formation of the road. I find no merit in the
appeal. Appeal is dismissed. No cost.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
———————
JUDGMENT
SEPTEMBER,2006