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2023 Supreme(Online)(KER) 1018
HIGH COURT OF KERALA
MARY JOSEPH, J
K.M.A.SHAHUL HAMEED – Appellant
Versus
K.S.RANJITH – Respondent
AS 780/1999
SRI.P.K.IBRAHIM SRI.P.CHANDRASEKHAR SMT.P.M.MAZNA MANSOOR SRI.T.I.ABDUL SALAM SRI.C.K.VIDYASAGAR
The plaintiff must conclusively demonstrate title with proper evidence, and survey records alone do not suffice to establish property claims.
Headnote:
Property - Appeal - Evidence Act Sections [101, 102] - The appellate court emphasized the plaintiff's burden to prove title and the improper reliance on survey records alone, leading to the remand of the case for fresh consideration.
Fact of the Case:
The respondents sought title and possession of property, while the defendants contested the suit on the basis of discrepancies in property boundaries and adverse possession claims.
Finding of the Court:
The court found the trial court erred in decreeing the suit without properly establishing property boundaries and allowing for necessary amendments and additional evidence to determine title.
Issues: Whether the trial court correctly decreed the suit for recovery of possession without sufficient evidence on property boundaries and title.
Ratio Decidendi: The burden of proof rests on the plaintiff to establish title; mere weaknesses in the defense cannot grant a decree without clear evidence.
Final Decision: The appeal is allowed, and the original trial court's judgment is set aside for reconsideration.
JUDGMENT
The appeal on hand is originated from a judgment and decree passed by Subordinate Judge’s Court, Kattappana in O.S. No.203/95 on 13.09.1999.
2. The Suit was filed by the respondents in the appeal seeking for a declaration of title and recovery of possession of ‘A’
Schedule property and for injunction and damages.
3. Subordinate Judges Court, Kattappana allowed the suit and the following reliefs were granted.
“In the result the suit is decreed as follows:- (1) Plaintiffs’ title to 20 acres (A and B schedule) as per the amended plaint and possession of plot Nos. 1 and 2 in Ext.C4(a) plan is hereby declared. (2) Plaintiffs are allowed to recover possession of plot No.4 in Ext.C4(a) plan.
(3) Plaintiffs are allowed to realise an amount of Rs.2,00,000/- as damages for the mischief caused to the suit property together with interest at the rate of 12% per annum from the date of decree till realisation.
(4) Plaintiffs are allowed to realise Rs.10,000/- per annum as mesne profits from the date of suit till possession is surrendered or for 3 years from the date of decree whichever event happens earlier from the defendants and their assets.
(5) Defendants are directed to surrender possession of plot No.4 shown in Ext.C4(a) within 60 days from the date of decree, failing which plaintiffs are allowed to recover possession through court.
(6) Defendants are restrained by decree of permanent prohibitory injunction from interfering with the peaceful possession and enjoyment of plot Nos.1 and 2 in Ext.C4(a) plan.
(7) Ext.C4(a) plan is appended to the decree
8) The cost of the suit is also allowed.”
4. The aggrieved defendants are now before this Court in the appeal on hand. The main contention raised was that none of the Advocate Commissioners deputed from the court identified the suit property with reference to boundaries of those or to the extent shown in Ext.A1 title deed produced by the plaintiffs.
5. The property under Ext.A1 deed was admittedly part of a larger extent of land having an area of 58.10 acres in Survey No.75. According to the defendants, discrepancies have been crept in the descriptions of the boundaries of the disputed property in the schedule to the plaint and those in Ext.A1 title deed produced by the plaintiff and in that context, a survey of the larger extent ought to have been ordered by the trial court. According to him, the trial court has observed that the defendants failed to produce the deeds conferring them right over the property. Therefore, there was no materials available for the trial court to have an idea about the boundaries the property claimed in the written statement to have been possessed by them.
6. The plaintiff ought to have approached the trial court with a prayer for identification of the property in respect of which recovery of possession was sought and that could at best be done by taking a survey commission. It is found that the plaintiff has taken out commissions. Advocate Commissioners have been deputed for identifying the property with reference to it’s boundaries, claimed to have been possessed by the plaintiff. Without setting aside the commission reports originally prepared by Advocate Commissioners, other Advocate Commissioners were deputed to prepare commission reports further. The court while doing so is found to have acted in utter ignorance of the fact that the reliefs sought in the suit were recovery of possession, injunction against peaceful possession and enjoyment of the disputed property and recovery of damages without proving the boundaries of the disputed property, and the exact extent of the property held by the plaintiff in a survey commission, especially when the factum admitted by the rival parties was that the properties held by them form portions of a larger extent owned by one Mr.Rozario. Therefore, the trial court ought not to have decreed the Suit.
7. It is true that the additional defendants who survived the deceased 1st defendant have also filed an additional written statem
