IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 603 of 1999(E)
1. KRISHNAN NADAR
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.M.RAJASEKHARAN NAYAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.BHAVADASAN
Dated :10/01/2011
O R D E R
P. BHAVADASAN, J.
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S.A. No. 603 of 1999
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Dated this the 10th day of January, 2011.
JUDGMENT
Slapped with the concurrent findings against
the plaintiffs, they have come up in appeal.
2. The suit was one for declaration of title and
possession and for setting aside the survey proceedings.
The plaint consists of A and B schedule items, title to
which are traced by the plaintiffs through Exts.A1 and
A4. According to the plaintiffs, resurvey mistakes were
committed by the authorities and that has resulted in
showing a portion of the property which was actually
belonged to the plaintiffs as puramboke land. After
exhausting the statutory remedy, they have come up for
rectification of records and for other reliefs.
3. The State resisted the suit. They justified
the survey and contended that the plaintiffs are not
entitled to any relief.
S.A. 603/1999. 2
4. On the basis of the pleadings, necessary issues
were raised by the trial court. The evidence consists of the
testimony of P.W.1 and documents marked as Exts.A1 to
A11 from the side of the plaintiffs. The defendants
examined D.W.1. Exts.C1 and C1(a) are the report and plan
prepared by the commissioner.
5. The trial court found that except the two
partition deeds, based on which title was traced to the
plaintiffs, no other document is produced by the plaintiffs to
establish title to the suit property. The trial court noticed
that the partition deeds are usually not taken as
documents of title and the plaintiffs for reasons best known
to them chose not to produce any other document to
establish their title to the suit property. It has also to be
noticed that they had taken no steps to have the survey or
resurvey records produced before the court. Based on
these findings the suit was dismissed.
6. The plaintiffs carried the matter in appeal as
A.S.314 of 1994, the appellate court for the very same
S.A. 603/1999. 3
reasons as that found by the trial court, dismissed the
appeal. Hence this second appeal.
7. Notice has been issued on the following
substantial questions of law:
“A. Whether the re-survey plan prepared by
the authorities are final?
B. Are not the courts below bound to
consider the contentions of the parties against the
re-survey on the basis of the documents produced
by the parties?
C. Whether patta alone will prove title and
possession of the parties
D. Are not the findings of the courts below
wrong in view of its failure to consider the scope
of Act 37 of 1961?”
8. Learned counsel appearing for the appellants
pointed out that the courts below have erred both on facts
and in law in dismissing the suit. According to learned
counsel the commission report and the plan are not properly
considered and that has resulted in miscarriage of justice.
The commissioner has identified the properties and the
S.A. 603/1999. 4
finding of the courts below that the plaintiffs have not
produced prior documents of title deeds cannot be
countenanced.
9. Though the argument may look attractive, it
has to be said that it is without basis. As rightly pointed out
by the courts below the partition deed is not usually taken
as document of title. It is well settled that partition is only a
division of status, where one person is given exclusive right
over a portion of the property in lieu of giving up claim over
rest of the property. The person has pre-existing right to the
property. It is surprising to notice that even after the trial
court had noticed that the document of title had not been
produced by the plaintiffs to establish their title, there was
no attempt on the part of the plaintiffs to produce the
document of title at the appellate stage. They remained
satisfied with whatever they had produced before the trial
court. It is not discernible from the commission report or
plan as to on what basis the sketch has been drawn by the
commissioner. It does not refer to any particular document
S.A. 603/1999. 5
of title which could have been handed over to him by the
plaintiffs at the time of preparing the report and plan.
10. The plaintiffs traced title to various
documents, which they have not produced. It is also
surprising to note that they felt it unnecessary to have either
the survey or resurvey sketch produced. There was also no
attempt to have the properties identified with respect to the
survey and resurvey plan. It was under those circumstances
that both the courts below were compelled to hold that there
is nothing to indicate that the resurvey authorities have
erred in any manner in conducting the survey and coming to
the conclusion that a portion of the property in the
possession of the plaintiffs is puramboke land. No
justifiable grounds are made out to interfere with the
judgments and decrees of the courts below.
Further, the findings of the courts below are
based on appreciation of evidence and it is a finding on fact.
No substantial question of law, much less any substantial
question of law arises for consideration in this Second
S.A. 603/1999. 6
Appeal. This Second Appeal is without any merits
whatsoever. It is accordingly dismissed. Accordingly, there
will be no order as to costs.
P. BHAVADASAN,
JUDGE
sb.