IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 598 of 1997(E)
1. PILACHERY CHANDRAN KUTTY
... Petitioner
Vs
1. POYIL ILLATH RAJAN
... Respondent
For Petitioner :SRI.P.K.SURESH KUMAR
For Respondent :SRI.T.SETHUMADHAVAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :20/08/2010
O R D E R
M.N. KRISHNAN, J.
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A.S.NO.598 OF 1997
&
A.S.No.162 of 1999
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Dated this the 20th day of August, 2010.
J U D G M E N T
A.S.No.598/1997 is preferred against the judgment
and decree in O.S.No.276/1991 and the other appeal is
preferred against the judgment and decree in
O.S.No.284/1993. The suit is one for damages. The plaintiff
in O.S.No.276/1991 is claiming right over one acre and 90
cents of land in R.S.No.245/1 as per the revenue records and
referred to as R.S.No.250/1 in the title deed of the plaintiff.
In O.S.No.284/1993 the plaintiff therein is claiming title over
70 > cents of land in R.S.No.150/1 which is referred in her
document in R.S.No.241/1. The case of the plaintiff in
O.S.No.276/1991 is that the defendants had trespassed into
the property and cut and removed the rubber plants situated
in his property and thereby had incurred a damage of
Rs.27,733.35 and hence a suit for the same. In the other
suit, it is submitted that three rubber plants and cadjen
shades provided to 242 rubber trees were also destroyed.
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A.S.No.162 of 1999
The plaintiff has claimed for damages.
2. In both the suits, the defendants would contend that
the plaintiffs are not having any right over the property and
the property having an extent of 3 acres and 13 cents
belonged to the temple and it is used for the purpose of
conducting ceremonies in the temple.
3. In the trial court, PWs 1 to 4 and DWs 1 to 3 were
examined, Exts.A1 to A32 and B1 to B9 were marked. On a
consideration of the materials, the trial court had dismissed
the suit. It is against that decision, the present appeals are
preferred.
4. Heard the learned counsel appearing for both sides.
The learned counsel appearing for the respondents in these
appeals would submit that with respect to the property
covered by O.S.No.805/1989, a suit for recovery of possession
was filed and ultimately by the order of this Court it is
remanded and pending consideration before the court below.
Against the order of remand, an appeal was preferred and it
was dismissed. In order to entitle the plaintiffs in these
suits to claim damages, they have to establish that the rubber
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A.S.No.162 of 1999
trees alleged to be damaged were situated in their property
and that damage has been caused by the defendants. The
learned counsel for the appellants would submit before me
that as Exts.A1 to A32 were produced would convincingly
establish the title of the plaintiffs in the case. But the
contention of the parties has made it imperative for the
plaintiffs to prove that the trees which are cut and
removed form part and parcel of their immovable property
and unless they are able to establish that plants and trees
were standing in the property covered by their title deed,
the plaintiffs will not be entitled to any damages. It has
come out in evidence before the court that survey numbers
250/1 as well as 245/1 takes in a huge extent of property.
It can also be seen that the plaintiffs’ document shows the
number as R.S.250/1 but in the revenue records the number
is R.S.245/1. Similarly with respect to the wife’s property
the number is shown as 150/1 in the revenue records
whereas in the document it is 250/1.
5. I am conscious of the fact that the property can be
identified with respect to the description, boundaries, survey
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A.S.NO.598 OF 1997
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A.S.No.162 of 1999
number and extent. The courts have also pronounced that
when there is discrepancy between the survey number,
extent etc, it will be the boundaries that will prevail.
Ultimately it has also been laid down in facts and
circumstances of each case, the most infallible method is to
be resorted to identify the property. In these cases the
defendants are claiming 3 acres and 13 cents of property
and would contend that the plaintiffs are claiming right
over that property. According to the defendants, it is part
and parcel of the temple property where there are sub
deities and inhabitants of the locality gathered there to
perform the rituals in the temple. So when both the parties
are claiming property under the very same survey number
and there is dispute with respect to the title of the plaintiff
over the property, the plaintiffs should have identified the
property covered by the document and should have satisfied
the conscience of the court that rubber trees stood in the
property which is covered under their document. Just
because number of documents are thrust upon court showing
that the plaintiffs are having title over some property, it
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A.S.No.162 of 1999
cannot lead to the conclusion that their title deed covers the
disputed property. So as rightly held by the trial court, non
identification of the property with respect to the title deed is
fatal and therefore in such cases damages cannot be granted.
6. The learned Subordinate Judge has also considered
the evidence available. It was contended before the court
below that the first defendant had not visited the property
for 15 years and the second defendant used to visit the
property only once in a year. The court also found that
though there are innumerable number of inhabitants in the
locality, the plaintiffs have not chosen to examine any
independent witness. One of the witnesses examined was
PW2 who was the cousin of the plaintiffs’. The court felt
that his evidence cannot be accepted at all. So also the
court below refused to accept the evidence of PW3 the
alleged labourer. The court also found that persons residing
near the disputed property were Bapputy master, Viswanathan
and Sudhakaran, but none of them were examined before
the court. So the court below felt that the plaintiffs have
not succeeded in proving that defendants had committed
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the act of damages.
7. Therefore, I hold that there is nothing to interfere
with the decision rendered by the trial court in both the suits
and so the appeals are devoid of any merit and are dismissed
but without costs. But I make it clear that the title to the
property has not been decided in these cases and therefore
it will not prevent the plaintiffs to establish their title in a
properly instituted suit or any other pending matter.
Both the appeals are disposed of accordingly.
M.N. KRISHNAN, JUDGE.
cl
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&
A.S.No.162 of 1999
M.N. KRISHNAN, J.
…………………………………….
A.S.NO.598 OF 1997
&
A.S.No.162 of 1999
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20th day of August, 2010.
J U D G M E N T