In a suit for recovery of possession based on title, the plaintiff must affirmatively prove the identity of the disputed property; the inability of the defendant to prove their own title or claims does not relieve the plaintiff of the burden to establish their case.

J U D G M E N T

The plaintiff in a suit for recovery of possession non-suited concurrently by the courts below has come up with the present appeal.

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

The plaintiff / appellant claimed that plaint B schedule property belong to one Mankada Kovilakam. One Pulloorsangattil Pathummakutty @ Kunjumunni Umma was a tenant of Mankada Kovilakam and she obtained purchase certificate No.2718/1975 from Land Tribunal, Angadippuram. One Ponnangathodi Abdul Muneer purchased the property by virtue of sale deed No.557/1998 of SRO Perinthalmanna and from him the plaintiff was purchased the property by sale deed No.702/1999 of SRO Perinthalmanna. According to the plaintiff, the plaint A schedule is a portion of plaint B schedule property and the plaint A schedule property is lying on the eastern end of the plaint B schedule property, which has been trespassed upon by the defendants and is in occupation. The defendants resisted the suit by contending that the plaint schedule property is not identified and that the defendants had purchased a portion of the plaint schedule property by virtue of an agreement dated 08.09.2004 and that there is a pathway having a width of 11 to 15 feet. It was further contended that the defendants’ property had lying on the eastern and southern boundary of the plaint B schedule property and they have never trespassed into the plaint B schedule property. Other contentions were also raised in the suit. On behalf of the plaintiff, Exts.A1 to A3 documents were produced and the plaintiff was examined as PW1. The 6^th defendant was examined as DW1 and no documentary evidence was adduced on the side of the defendants. An Advocate Commissioner was appointed for identifying the property and filed Exts.C1 and C2 report and plan. The Advocate Commissioner on physical verification of the property found that the plaint schedule property does not tallying with the present lying and therefore filed a report stating that the plaint schedule property is not identifiable. As regards the dispute in the plaint A schedule property, it is reported by the Advocate Commissioner that the same is lying as a trafficable road. Based on the material evidence as above, the trial court concluded that the plaintiff has not proved her case and not established the title of the plaint A schedule property. Though the defendants contended that a portion of the plaint A schedule property is purchased by them under agreement of the year 2004, the weakness of the case of the defendants was not the ground to decree the suit for recovery of possession. Based on the above, the trial court dismissed the suit. On appeal, the First Appellate Court concurred to the findings and hence the present appeal.

3. Heard Shri.Jayesh Mohankumar K., the learned counsel appearing for the appellant.

4. The learned counsel for the appellant submitted that the Advocate Commissioner has clearly identified the property and that the findings of the courts below that the property has not been identified cannot be sustained. He further pointed out that though the defendants raised a contention that the property was purchased by them in the year 2004, no evidence was adduced by them. In such circumstances, the learned counsel for the appellant pointed out that the courts below were not justified in dismissing the suit.

5. On consideration of the submission raised across the Bar, this Court is of the considered view that there is no merit in this appeal, inasmuch as there is no substantial question of law arising for consideration. The findings rendered by the courts below purely hinges on appr