IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 654 of 1995(C)
1. THANKAYYAN ABANIZAR
... Petitioner
Vs
1. M.MADHUSOODHANAN NAIR
... Respondent
For Petitioner :SRI.L.MOHANAN
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :20/01/2011
O R D E R
HARUN-UL-RASHID, J.
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S.A.No.654 Of 1995
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Dated this the 20th day of January, 2011.
J U D G M E N T
Plaintiffs in O.S.No.469/77 on the file of the II Additional
Munsiff Court, Neyyattinkara are the appellants. The appeal is
directed against the judgment and decree in A.S.No.160/82 on
the file of the II Additional Sub Court, Thiruvananthapuram. Suit
was filed for declaration of title and possession of the plaintiffs
over the plaint schedule property and for consequential
injunction. The trial court dismissed the suit. In the appeal
preferred by the plaintiffs, the appellate court confirmed the
decree and judgment. Parties hereinafter are referred to as
plaintiffs and defendants as arrayed in the suit.
2. There are three items scheduled in the plaint. Item
No.1 is 85 cents, item No.2 three cents with building and item
No.3 is 9< cents of land. Originally the suit was filed against the
first defendant for a perpetual injunction restraining him from
trespassing into the plaint schedule property and committing
waste. In the light of the contention raised by the first defendant
in the written statement that other persons are also necessary
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parties to the suit, additional defendants 2 to 15 were impleaded
as per order dated 29.10.1979. Though additional defendants
were impleaded, nobody has chosen to appear before the court
nor contested the case. Originally, suit was filed for injunction
simplicitor. The first defendant denied the title of the plaintiffs.
Subsequently, pleadings were amended and prayer for
declaration of title was also inserted. Plaintiffs claimed title on
the strength of Exts.A2 to A5 and A12 documents. According to
the plaintiffs their predecessor-in-interest by name, Thankayyan
was the title holder of the property, that on his death the
plaintiffs are in possession of the property in continuation of their
predecessor-in-interest and that they are the present title
holders.
3. Though the suit was filed for declaration for title and
injunction, the trial court failed to frame relevant issues for trial.
I have gone through the judgment passed by the trial court.
Issues were framed as if the suit was one for injunction
simplicitor. No issue regarding title was framed by the trial court.
Therefore, there was no occasion to consider the claim of the
plaintiffs regarding the title of the plaint schedule property. The
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trial court considered the only question as to whether the
plaintiffs are in possession of the plaint schedule property and as
to whether they are entitled to injunction as prayed for. The trial
court found that the burden is on the plaintiffs to prove
possession holding that they have not discharged their burden.
Suit was dismissed finding that the plaintiffs have failed to prove
possession and further held that the defendant is in possession of
the plaint schedule property as per Ext.B1 delivery list.
4. In the appeal preferred by the plaintiffs challenging
the dismissal of the suit, in paragraph 7 of the judgment the
lower appellate court observed that the most important aspect to
be made mention is that though the plaint was amended by
inserting a prayer for declaration of title and possession also, no
issue regarding the same was raised by the trial court and no
finding was seen entered into regarding title. The appellate court
also noticed in the same paragraph that though additional
defendants 2 to 15 remained ex-parte, trial court awarded cost to
all respondents. The appellate court examined the contentions of
the parties in the light of the aforesaid observations.
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5. The appellate court on appreciation and evaluation of
the evidence on record held that the plaint schedule property is
not included in Ext.B1 delivery list, that neither the plaintiffs nor
their predecessor are parties to O.S.No.874/1950 and therefore
the decree and judgment and consequent delivery proceedings
are not binding on the plaintiffs. The appellate court in
paragraph 13 observed that the plaintiffs have no case that the
executants of Exts.A1, A5 and A8 had right or possession over
any plot so as to convey the absolute title and possession
thereunder and that the properties were got assigned in the joint
names of 5 persons in respect of survey No.146/1 and in the joint
names of 4 persons in respect of survey No.146/1 is admitted.
The appellate court further observed that the joint title holders
ever affected a partition thereby specific portions were allotted to
the executants of Exts.a1 to A5 and A12. The court further
observed that plaintiffs have no case that the executants of
Exts.A1 to A5 and A12 had right or possession over any plot so
as to convey the absolute title and possession thereunder and the
recitals in the above documents will go to show that they
acquired absolute right over specific plots conveyed thereunder
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as per any specific documents. The court on the basis of the said
observations held that it cannot be found that Thankayyan, the
predecessor-in-interest of plaintiffs acquired absolute title over
the plaint schedule as per Exts.A1 to A5 and A12. The appellate
court held that though the plaintiffs have no absolute title and
possession over the entire plaint schedule properties they can
claim oodukoor right over the entire property in the plaint
schedule survey number basing on documents in their favour of
title basing on adverse possession and limitation if they are in
actual physical possession of the plaint schedule properties or
portions thereof. After entering such finding the appellate court
dismissed the appeal stating that there is no pleading or proof in
that respect and therefore, the only course open to the court is
the direct the plaintiffs to work out their remedy in a properly
instituted suit.
6. The trial court did not understand the scope and ambit
of the suit. The trial court failed to consider the question of title
in a suit for declaration of title and possession. No issues were
framed and there was no adjudication on the point. Finding that
the trial court has committed mistakes, the lower appellate court
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framed the issue regarding the title and proceeded further to
decide the case on merits.
7. Trial court proceeded with the suit as if it is a suit for
injunction and dismissed the suit finding that Ext.B1 delivery list
is binding on the plaintiffs. The lower appellate court took a
reverse stand and held that Ext.B1 delivery list is not binding on
the plaintiffs. At the same time, the lower appellate court held
that the defendants did not got delivery of the entire extent
shown in Ext.B1. Learned counsel for the appellants pointed out
that in the property delivered as per Ext.B1 there are no building
whereas there are 4 plots in the southern portion of survey
No.146/1 and 146/5 including the building described in item No.2
and Exts.A6 to A11 assessment register show that the residential
building of Thankayyan was there even prior to 1954. The
commissioner in Exts.C1 report and C2 plan mentioned about the
existence of building in the property. The lower appellate court
held that as per the documents relied on by the plaintiffs,
namely, Exts.A1 to A5 and A12, specific plots were conveyed.
But the relief claimed in the plaint was refused for the reason
that the joint holders have effected partition and plaintiffs’
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predecessor did not get absolute title as per the documents.
8. The present suit was filed for declaration of title and
possession. Suit was filed in the year 1977. The question to be
adjudicated in the suit is as to whether the plaintiffs have right,
title and possession over the plaint schedule property. If the
plaintiffs failed to prove title and possession, the course open to
the fact findings courts is to dismiss the suit. The court cannot
relegate the plaintiff to file another suit for the very same reliefs.
In this case the trial court did not examined the question of title
at all. The lower appellate court entered the findings mostly in
favour of the plaintiffs and dismissed the appeal mainly for the
reason that there is no partition of the entire property by the co-
owners.
9. The learned counsel for the appellant contended that
by the conduct of executing these documents show that specific
plots were conveyed to the plaintiffs and therefore observation of
the lower appellate court is incorrect. The counsel further
submits that it is solely based on wrong understanding of the
questions involved in the case and a misreading of the said
documents. The learned counsel also submits that the
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observation of the lower appellate court that the plaintiffs have
no case that the joint title holders have effected partition is also
incorrect and such a finding was entered on a misunderstanding
of the facts of the case and the documents. Learned counsel
pointed out that the predecessors-in-interest have obtained
specific plots as per the documents produced. The case put
forward by the plaintiffs that plaint schedule items are separate
plots obtained as per the documents referred above and the
plaintiffs were in possession of the said plots. Learned counsel
also pointed out that in the commissioner’s report there is no
building in the property taken delivery as per Ext.B1 delivery list.
Considering the facts and circumstances and evidence on record,
this Court is of the view that the stand adopted by the lower
appellate court dismissing the appeal and directing the plaintiffs
to institute a fresh suit for the very same reliefs is not a correct
approach to the questions involved. The question as to whether
the plaintiffs have title over the plaint schedule properties shall
be decided by the fact findings courts on the basis of oral and
documentary evidence and materials on record adduced by the
parties. Finding that there is no proper appreciation of facts and
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evidence, this Court is of the view that the matter requires re-
consideration.
In the result, the appeal is allowed. The judgment and
decree passed by the courts below are set aside. The case is
remanded to the trial court for fresh consideration and disposal in
accordance with law. The trial court shall consider the case
afresh untrammeled by any of the observations and findings in
any of the judgments. Parties are at liberty to adduce additional
evidence, if so advised. The trial court shall dispose of the case
within a period of nine months from the date of appearance of
the parties. The parties shall appear before the court below on
18.2.2011. Since there is no appearance for the respondents,
the trial court shall issue notice to the contesting first defendant.
No order as to costs.
HARUN-UL-RASHID,
Judge.
bkn/-