Parties in possession must substantiate property claims based on clear evidence of title and identity regardless of defense weaknesses.

J U D G M E N T

The 1st plaintiff concurrently non-suited in a suit for declaration of title and recovery of possession, is before this Court. It is a travesty of justice that the suit filed in the year 1989, is yet to attain a finality, because of various technical issues as well as want of proper evidence. With this backdrop this Court proceeds to analyse the respective claims of the parties.

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

2.1 The plaintiff claimed that going by a partition deed of 1937, an extent of 9 Acres of plot was alloted under item No.6 of the said partition deed. It is an admitted case that out of the said items, various items were assigned by the predecessor of the plaintiff to various third parties. The plaintiff was minor at the time when the partition deed was executed. Till filing of the suit, he is not aware under what are all documents these assignments were made. But then, the plaintiff proceeded to institute the suit on the pretext that the defendants 1 and 2 are attempting to trespass into the plaint schedule property, having an extent of 1 Acre 98 cents, which was subsequently amended and corrected to 1 Acre 23 cents and are is occupation of the same.

2.2 The defendants resisted the suit by contending that the plaintiff has not proved the identity of the plaint schedule property inasmuch as he is not in a position to even state under what all documents the assignments were made. Therefore, it was pointed out that unless and until the plaintiff is able to successfully prove the extent of property sold, he cannot maintain a suit for declaration of title and recovery of possession. It was further pointed out that from 1956 onwards, the defendants were in possession of the property based on a Kanam Assignment deed executed in their favour, which was translated into the issuance of the purchase certificate. It was also contended that they were also paying requisite tax for the property in possession. The plaintiff attempted to prove identity of the property through an Advocate Commissioner, who had filed a report as early as in the year 1990. However, the said report was remitted and a fresh report was solicited. Ext.C3 plan and Ext.C4 report were thus filed. But then, there were infirmities in the said report, but still the plaintiff did not object to the report. However, I.A No.2149/1998 was filed seeking to set aside the report of the Advocate Commissioner and also depute a Surveyor for identification of the plaint schedule property. This application was rejected on 12.11.1998, which was carried forward before this Court in CRP No.2357/1998, wherein this Court observed that, if the Advocate Commissioner’s report is otherwise valid and correct, the court should not refuse to accept the same on the basis of the statement made by the Advocate Commissioner. With these material facts and evidence, the trial court concluded that there was no earnest effort on the part of both the Advocate Commissioner and the Surveyor, who identified the property. But then, it shifted the entire burden to the shoulders of the plaintiff and concluded that the plaintiff was not successful in proving the correct identity of the property. The trial court in doing so observed that the weakness in the defence of the defendants cannot be a ground to grant a relief to the plaintiff. Aggrieved, the plaintiff preferred A.S No.14/2005 before the Sub Court, Manjeri. Before the First Appellate Court also a