The court affirmed that title proof and identification issues can be determined at the execution stage, emphasizing the burden of evidence on the defendants.

J U D G M E N T

This appeal arises out of the concurrent findings rendered by the Munsiff Court, Pattambi in O.S.No.73 of 2009 affirmed in A.S No.99 of 2011 by the Additional District Court, Ottapalam.

2. The brief facts necessary for the disposal of the appeal are as follows:-

The respondent/plaintiff has preferred the suit for an injunction restraining the defendants from trespassing into the plaint schedule property. Subsequently, the Advocate Commissioner who was appointed to identify the property gave a report. Based on report, the plaintiff amended the suit and sought a relief for recovery of possession. The plaintiff purchased the property from the 1st defendant as per document No.679 of 2009 of Kumaranellur Sub Registry. The property was comprised of a larger extent as per document No.120 of 1980 of Kumaranellur Sub Registry. On 18.05.2009, when the plaintiff went to his property, the defendants threatened that they would not permit the plaintiff to enter into the property and enjoy the same and hence the suit. The defendants resisted the suit by contending that the execution of document No.679 of 2009 is only a sham document and was never intended to give effect to. The father of the plaintiff is a moneylender, and the 1st defendant had borrowed a sum of Rs.5,000/- from him and at that time, the 1^st defendant was required to execute a Karar and register the same. Believing the words of the plaintiff, the 1st defendant went to the Sub Registrar Office and executed a document, which is now styled as a sale deed.

3. On behalf of the plaintiff, Exts.A1 to A5 documents were produced and PW1 was examined. On behalf of defendants, no documentary evidence was adduced, but DW1 was examined. Exts.C1 and C2 are the report and sketch of the Advocate Commissioner. The trial Court, on the basis of oral and documentary evidence, found that the Advocate Commissioner, though identified the property, was not able to state the position as to where exactly the plaint schedule property lies. In such circumstances, the relief of perpetual injunction was declined. But as regards the question of title, the trial Court found that the 1^st defendant has no case that he had not executed the Ext.A1 document and therefore found that the plaintiff had right title over the property. As regards the identification, this Court below found that since site measurements are available in Ext.A1, the identification of the property could be done at the execution stage.

Accordingly the suit was decree.

4. The 1^st defendant aggrieved by the judgment and decree, preferred A.S No.99 of 2011 and the 1^st Appellate Court by judgment dated 07.06.2013, dismissed the appeal. Hence, the present second appeal. On 10.10.2013, this Court admitted the appeal on the following substantial questions of law.

“1. When a specific plea regarding the identity of the property was raised by the defendants, are the courts below justified in relegating that issue to be decided at the execution stage since the proof of identity of that land is very crucial question which will have bearing on the issue to be answered regarding the title ?

2. Are the courts below justified in holding that the document is true and valid when execution of the same specifically deny the same ?”

5. Heard. Sri.P.K.Mohanan., the learned counsel appearing for the appellants and Sri.P.B.Subramanyan, the learned counsel appearing for the respondent/plaintiff.

6. The learned counsel appearing for the appellants submitted that, since the identity of the property has not been established, the Court below ought not have granted the decree for recovery of possession. The plaintiff fraudulently got the sale deed executed from the 1^st defendant, which was never intended to take plac