The court affirmed the plaintiffs' title based on historical documents and tax records, while ruling that the award of mesne profits was unjustified due to lack of income generation from the property.

JUDGMENT :

(Sathish Ninan, J.)

The suit for declaration of title and recovery of possession, with an alternate relief for recovery of market value of the property and mesne profits, was decreed by the trial court granting the alternate relief. The defendants 2 to 4 are in appeal.

2. The plaint schedule property has an extent of 25.203 cents. It is situated in Old Survey 26/7B of Edappally North village. It is a portion of a larger extent of 57 cents. The plaintiffs are brothers. According to the plaintiffs, a larger extent of property including the plaint schedule property belonged to their great grandfather, Meethiyan. From out of the larger extent of property some extent was surrendered by him for the formation of Shornur-Ernakulam Railway. The entire extent surrendered was not utilized by the Railway. The excess land (57 cents) was categorised as “Railway 'B' class property” and was assigned back in favour of Meethiyan. He and his successors were paying tax for the property. In the year 2002, for the purpose of widening National Highway-17, defendants 2 to 4 took over the plaint schedule property without payment of any compensation. Though the plaintiffs approached this Court in writ petition, they were relegated to the civil court. It was accordingly that the present suit was filed.

3. The first defendant Union of India remained ex parte. Defendants 2 to 4, the State, denied the title of the plaintiffs and their predecessors. It was contended that the plaint schedule property is a Railway 'puramboke', and that neither the plaintiffs nor their predecessors have any title over the same.

4. The trial court upheld the plaintiffs title. However, finding that the property has already been utilised for a public purpose, the relief of recovery of possession was declined and the alternate reliefs for recovery of market value and mesne profits were granted.

5. We have heard Sri.C.P.Pradeep, the learned Senior Government Pleader on behalf of the appellants- defendants 2 to 4 and Sri.P.Sathisan on behalf of the respondents-plaintiffs.

6. The points that arise for determination are:-

(i) Is the finding of the trial court that the plaintiffs have proved their title over the property sustainable on the evidence?

(ii) Does the decree and judgment of the trial court warrant any interference ?

7. The plaint schedule property having an extent of 25.203 cents is part of a larger extent of 57 cents. The title and possession of the remaining extent excluding the plaint schedule, is not in dispute. It is the plaintiff's case that, even prior to the year 1900, their great grandfather Meethiyan had surrendered a larger extent of property for the formation of Shornur-Ernakulam Railway line and that since the entire extent of property surrendered was not utilised, the remaining extent of 57 cents was reassigned in his favour and 'patta' issued. It is claimed that the 'patta' is lost. The surrender and the re-conveyance was more than 100 years back. Thus, the document of title under which the plaintiffs claim the property is not before the court. The issue would be whether, even on the failure of the plaintiffs to produce their title deed it could be held that they have title over the plaint schedule property.

8. Ext.A2 is a Partition Deed dated 12.08.1089 ME (corresponding to the year 1914) executed between the legal heirs of Meethiyan, the great grandfather of plaintiffs. Therein the 57 cents of property in Sy. 26/7B, of which the plaint schedule property is a part, is included in the 'B' schedule and was allotted to Abdul Khader, the son of Meethiyan. The surrender in favour of the Railway and the re-assignment is claimed to have been prior to the year 1902. The formation of the relevant railway line was prior to that period is not in dispute. Therefore, Ext.A2 partition is after the re-conveyance as claimed by the plaintiffs. Though Ext.A2 does not recite the manner in which title over the plaint schedule property was obtained by Meethiyan it has been affir