The defendants in O.S. Nos. 647/1993 and 649/1993 are the appellants. The plaintiff in O.S. No. 647/1993 is the husband of the plaintiff in O.S.No. 649/1993. Both the suits are for recovery of possession of the plaint schedule properties on the strength of title. The case of the plaintiff in O.S. No. 647/1993 is that his father had obtained 5 acres of land in R.S. No.80/2 of Kuttikole Village from Kodoth Saradamma and others as per Ext. A1 sale deed. Kodoth Nair family had vast extents of properties. There was a partition suit. In the final decree several plans were prepared allotting different plots to different sharers. Ext.A4 is the plan pertaining to the properties comprised in R.S. No. 80/2.
S.A. No: 443 & 488/1999 -2-
2. According to the plaintiffs the plaintiffs' predecessor obtained the plot having the notation 80/2D7. The property lying to its east was given the notation 80/2D8. According to the plaintiffs the plaint schedule properties, small bits of lands which are sought to be recovered, are portions of 5 acres of land, obtained assignment by PW1 (the plaintiff in O.S. No.647/1993) as per Ext.A1. Out of the 5 acres of land, 2 acres of land was subsequently gifted by PW1 to his wife who is the plaintiff in O.S. No.649/1993. It is contended that the defendant trespassed into portions of the two plaint schedule properties and took wrongful possession of the same. Those plots are shown by the Advocate Commissioner in Ext.C2 plan in blue, green and brown colour.
3. The defendants resisted the suit denying the plaintiff's title to the property. It was contended that the identification of the property is not correct. They S.A. No: 443 & 488/1999 -3- contended that Ammalu Amma and her children were allotted portions of RS. No. 80/2, who assigned 27 acres of land in favour of Khalid and others as per a document of 1964. They sold the said property measuring 27 acres of land in favour of the defendant in 1964 itself. It is contended that the disputed property forms part of the property purchased by the defendants from Khalid, mentioned above. It was also contended that the plaintiff and his father had filed O.S. No. 84/1973 on the file of the Munsiff Court against the defendant and others for permanent prohibitory injunction raising a false claim of tenancy in respect of 1 acre of land. That was actually in respect of the property held by the defendant. After obtaining a temporary injunction order they demolished the mud compound wall situated between the property of the defendant. Thereafter, the defendant put up a new compound wall and hence dispute arose. Thus, the S.A. No: 443 & 488/1999 -4- allegation of trespass alleged by the plaintiff was denied. Ultimately, the suit O.S. No. 84/73 was dismissed. It is also contended that though the plaintiff applied for purchase of jenm right in respect of 1 acre of land that was dismissed by the Land Tribunal and as such the defendants contended that the plaintiff's have absolutely no right over the disputed property.
4. Both suits were jointly tried by the court below . The first plaintiff was examined as P.W.1 and Exts. A1 to A13 were examined. No witness was examined on the side of the defendants. Exts. B1 to B3 were marked and the Commissioners report and plan were marked as Exts. C1 and C2.
5. It was found by the trial court that excluding the disputed property the remaining land in the possession of the plaintiff measures more than 5 acres. It was found that even the undisputed extent is measuring 5.16 acres S.A. No: 443 & 488/1999 -5- and so the plaintiff cannot lay claim over the disputed property. It was also found that the Commissioner did not give the extent of the undisputed plot in the possession of the plaintiff. Further, it was found that the plaintiff did not request the Commissioner to measure the entire extent of 5 acres covered by the title deed obtained by him from his father and so it is not possible to hold that the disputed three plots are held and possessed by the plaintiffs. It was also held by the trial court that merely because a portion of the land falls in R.S. No. 80/2, that is not sufficient to hold that those portions of the property belongs to or are in the possession of the plaintiff. The trial Court also took note of the fact that earlier there was a dispute relating to the property in the possession of the first defendant and that the allegation was that the compound wall which then existed was demolished by PW1, who was the plaintiff in the earlier suit, and so, the first defendant re-constructed a new S.A. No: 443 & 488/1999 -6- compound wall and a fence was also put up. The case so advanced by the defendant was accepted by the trial court and thus the suit was dismissed.
6. The lower appellate court had a detailed re- appreciation of the evidence and found that the properties comprised in 80/2D8 and 2D7 can be easily found out from Ext.A4 plan. The fact that the predecessors in interest of the plaintiffs and defendants obtained title to the property by virtue of the partition decree and that the plots allotted to them were the plots shown in Ext.A4 was accepted by the lower appellate court. It was further found that the lower appellate court relied upon the commissioner's report to hold that the three small plots coloured in brown, blue and green are portions of the 5 Acres of land obtained by PW1 from his father as per Ext.A1 sale deed and that the defendants' property is situated to the east of the survey line. It was also found by the lower appellate court that the S.A. No: 443 & 488/1999 -7- property which was the subject matter of O.S.84/73 must have been on the eastern side of the survey line measuring 500 links as shown in Ext.C2 plan. Taking note of the boundaries mentioned in Ext.A1 and other title deeds referred to earlier, the lower appellate court found that the defendants have trespassed into a portion of the plaint schedule property and reduced the three small plots, shown in brown, blue and green mentioned above, to his unlawful possession and so, a decree for recovery of possession was granted.
7. The learned counsel for the defendants/ appellants submits that the learned Sub Judge has gone wrong in granting a decree for recovery of possession of the three plots shown in Ext.C2 plan since there is no evidence to show that the plaintiffs have title to the said property. The fact that there was an earlier suit in respect of the very same property and that suit was dismissed and that was not S.A. No: 443 & 488/1999 -8- appealed against should have been taken serious note of by the court below. Even though that was a suit for injunction, the findings entered therein cannot lose its significance, it is argued. It is further argued that the lower appellate court failed to take note of the fact that the application for purchase of jenm right in respect of that one acre of property which was the subject matter of the earlier suit was also dismissed and as such it cannot be successfully contended by the respondents that they have got right over the three small plots marked by the Advocate Commissioner in Ext. C2 plan.
8. It was contended by the defendants that Ext.A4 plan is not correct and that it cannot be acted upon. The evidence on record, including Ext.C2 plan would make it clear that the defendants also do not deny Ext.A4 plan to be correct. Admittedly, the plot that was allotted to the predecessor-in-interest of the defendants; namely Ammalu S.A. No: 443 & 488/1999 -9- Amma was plot 80/2D8. The plaintiffs claim title from the owner of the property who was allotted plot 80/2D7. The survey line on the north of plot D8 having the measurement 2145 and the western boundary line shown in Ext.A4, having the length 500 links, would show the lie and position of plot D8. It is argued by the learned counsel for the plaintiffs that plot 80/2D7 is seen lying to the north-west of plot 2D8. The learned counsel also points out the measurements shown in Ext.C2 plan. The evidence would show that the said plan was also prepared by the Taluk Surveyor with reference to the Survey Plan and Ext.A4 plan. It is pointed out by the learned counsel for the plaintiffs that plot 80/2D 8 has been specifically demarcated by the Advocate Commissioner in Ext.C2 plan. Small plots coloured in blue, brown and green are situated outside the plot 80/2D8. The brown coloured portion lies almost at the north western corner. The blue coloured portion is also S.A. No: 443 & 488/1999 -10- lying to the west of the survey line. The green coloured small triangular plot is lying immediate to the south of the blue coloured plot and to the west of the Survey line, having the measurement 500 links. It is vehemently argued on behalf of the plaintiff that the small plots form part of the property having the notation 80/2D7. But the defendants would contend that there was no proper identification of plots 2D8 and 2D7. Admittedly, the entire 5 acres of property was not measured. Similarly the entire property which was originally purchased by Khalid from Ammalu Amma and which was later purchased by the defendant as per Ext. A5 sale deed was also not measured in full. But the learned counsel for the plaintiff would submit that since the dispute was pertaining to the property adjacent to the western survey line measuring 500 links and since other side measurements are also shown, there can be no difficulty to identify the property.
S.A. No: 443 & 488/1999 -11-
9. The learned counsel for the plaintiff would submit that over much importance cannot be given to the statement given by PW1 which according to the appellant is an admission of the fact that tenancy claimed as per Ext.B3 is in respect of the property lying immediate to the south- east of the compound wall mentioned earlier. The other statement made by PW1 that the suit property in O.S. No.84/1973 is situated to the eastern and southern side of the 5 acre of land covered by Exts. A1 and A3 also cannot be accepted, it is argued. But Exts B1 to B3 stare at the plaintiffs and so long as Exts. B1 to B3 are there, the admission made by PW1 cannot be eschewed as an inadvertent or innocuous statement. Therefore, it has become necessary to find whether the property measuring 1 acre made mention of in Ext.B1 suit is situated immediate to the east of the 5 acre land covered by Exts. A1 and A2. If the property measuring 1 acre is situated at some other S.A. No: 443 & 488/1999 -12- place and if the plaint schedule property is actually lying immediate to the west of plot 80/2D8 shown in Ext.A4 plan and C2 plan, then the plaintiffs may be in a better footing.
10. One more aspect assumes importance. The eastern boundary of the 5 acre land covered by Ext.A2 was shown as the property of Narayanan S/o. Kanisan Krishnan and also the property of the defendant herein. It is contended that the property of Kanisan Krishnan has not been shown in the Commissioner's plan and therefore according to the defendant, the property was not properly identified by the Advocate Commissioner.
11. It is submitted by the learned counsel for the defendants/appellants that the lower appellate court has not considered the fact that O.S.84/1973 was filed by PW1 and his father. Ext.B1 copy of the decree in that suit. There it is shown that the dispute was pertaining to 1 Acre of land comprised in R.S.No.80/2 portion; the boundaries of which S.A. No: 443 & 488/1999 -13- were east and south same sub division and purchased by the first defendant; the western boundary was the property comprised in the same sub division in the possession of the second plaintiff as per the sale deed and the northern boundary was shown as the property in the same sub division. The plan produced in that case was not produced or marked in this case. The judgment of the trial court in that case is also not seen produced. Admittedly, that suit filed by PW1 and his father was dismissed by the trial court. The appeal filed by them was dismissed as per Ext.B2 judgment. Since the plan referred to in that case is not before court it could not be ascertained as to what exactly was the property mentioned in Ext.B1 suit. Ext.B3 is the certified copy of the order of the Land Tribunal which shows that the claim made by PW1 against the first defendant herein (Mullachery Malathi Amma) was dismissed. It is seen that Ext.B3 produced therein was the plan prepared by the S.A. No: 443 & 488/1999 -14- Advocate Commissioner in O.S.84/1973. Admittedly, Ext.B3 order has become final, as the appeal filed against the same was dismissed. PW1 claimed tenancy in respect of 1 Acre of land which was shown to be part of Survey No.80/2. There is no clear mention of the boundaries. Clear identifiable boundaries are not shown in the schedule to the petition. It is contended that since PW1 is bound by the boundaries shown in Exts.B1 to B3, it would be a futile exercise on his part to contend that the disputed three small plots are portions of the property held by him under Ext.A1. On the other hand, the learned counsel for the respondents/plaintiffs would submit that the trial court happened to dismiss the suit on an erroneous impression that the present suit is in respect of 1 Acre of land or portion of 1 Acre of land covered by Exts.B1 to B3. The boundaries described in Ext.A5 which is the title deed of the defendants would make it clear that the properties held by the plaintiffs S.A. No: 443 & 488/1999 -15- and defendants are touching each other and that there is no 1 Acre of land situated in between. True that if Exts.B1 to B3 were not there it could have been easily found that the property held by the plaintiffs and defendants were properly demarcated. I say so because the boundaries of plot 80/2D8 as shown in Ext.C2 plan is exactly similar to the plot demarcated in Ext.A4 plan. The contention that the appellants are not bound by what is stated in Ext.A4 plan cannot be accepted at all since the predecessors in interest of the defendants as well as the plaintiffs traced their title to the properties in question from the partition allotment in Ext.A4 final decree. Plot 80/2D7 is situated immediate to the west of the plot 80/2D8. Plot 80/2D8 has a line measuring 500 links, which joins the other survey line measuring 2145 links, as shown in Ext.C2(a). That would leave no doubt that it is exactly the plot allotted to the defendants' predecessor as per Ext.A4 final decree. S.A. No: 443 & 488/1999 -16-
12. It is pointed out that from the original allottee (Ammalu Amma) one Khalid had obtained 27 Acres of land, but as per Ext.A5, the total extent of property sold by Khalid to Malathi Amma was only 25 Acres. With regard to the land measuring 25 Acres, it was described in the body of the document (Ext.A5) that out of the said 25 Acres, 8 Acres of land was in the possession of Kelu Nair, the father of the defendant Malathi Amma and another 5 Acres of land was in the possession of Mundathu Madhavan Nair and his brother Kunhambu Nair and the remaining 12 Acres which was in the possession of Khalid was given possession to the defendant Malathi Amma. Therefore, the total extent would be only 25 Acres and not 27 Acres. The total extent of property allotted to the defendant's predecessor as per Ext.A4 was 27 Acres. But the body of the document (Ext.A5) and the boundaries shown in the schedule to that property would make it clear that the 25 Acres assigned under Ext.A5 S.A. No: 443 & 488/1999 -17- is shown in the plan annexed to Ext.A5 as 2D8A. Admittedly, the eastern boundary of that property is the property in another village by name Banthaduka. The southern boundary is the property comprised in 2D9. The western boundary shown as the property comprised in Survey No.75 and the property that was assigned to Karichery Kunhambu Nair on the day of Ext.A5 itself and the property retained by the assignor (Khalid) and which is shown in the plan as 80/2D8B. The measurement of that property is shown as 1 Acre and 65 cents. There is a small triangular plot just to the north of the plot 80/2D8B and that plot is separately marked as 80/2D8C, the extent of which is shown as 35 cents. That 35 cents was the property stated to have been sold by Khalid to Karichery Kunhambu Nair. Ext.A6 is that document which shows that on the same day 35 cents of land was sold to Karichery Kunhambu Nair. That property was also part of Survey No.80/2 mentioned above. S.A. No: 443 & 488/1999 -18- The eastern boundary therein is the property sold to defendant (Malathi Amma) as per Ext.A5. Therefore, it is argued by the learned counsel for the plaintiffs that there can be no doubt regarding the identity of the plot obtained by the defendants as per Ext.A5 that it was only 80/2D8A. The other plot shown as 80/2D8B was the property retained by Khalid himself and that 35 cents, the small plot lying immediate to the north of plot 80/2D8A is the property covered by Ext.A6. If that be so, according to the plaintiffs, the contention that the defendants had obtained 27 Acres of land in R.S.80/2D8 is absolutely incorrect. It is further submitted by the learned counsel for the plaintiffs that a perusal of Ext.A4 plan would also fortify the contention as aforementioned since the western boundary of 2D8 is comprised in Survey No.75, (being the southern portion of the western boundary) and the northern portion of the western boundary is the one comprised in 80/2D7. The S.A. No: 443 & 488/1999 -19- measurement of that survey line as 502 would also support Ext.C2 plan produced by the Advocate Commissioner.
13. As stated earlier, the whole confusion was created because of the earlier suit (Ext.B1) and the dismissal of O.A. as per Ext.B3 which was in respect of 1 Acre of land claimed under the defendant. The learned counsel for the defendant/appellant would submit that since PW1 claimed tenancy in respect of 1 Acre of land under the defendant, then the plaintiff cannot deny the plaintiff's title especially because the application for purchase of jenmam right was dismissed by the Land Tribunal as evidenced by Ext.B3. Where exactly was the property covered by Ext.B3 is not shown in Ext.C2(a) plan. As stated earlier, it was in respect of the very same property covered by Ext.B1 suit, the application for purchase of jenmam right as per Ext.B3 was filed. It is also pointed out by the learned counsel for the defendant/appellant that as stated by the trial court, 5 Acres S.A. No: 443 & 488/1999 -20- of land covered by Ext.A1 was not measured. Whether the defendant is in possession of excess land or not is not the question since the suit is for recovery of possession on the strength of the plaintiff's title and so, it is for the plaintiff to prove that he has got title to the disputed land.
14. It is also argued that the plaintiff has no case that the total extent of property obtained under Ext.A1 is more than 5 Acres. The trial court has found that the extent of land admittedly in the possession of the plaintiff excluding the disputed land is more than 5 Acres. There is no material to show whether that statement is correct or not. If the plaintiffs wanted to contend that the disputed property, in respect of which recovery is sought, is not covered by Exts.B1 to B3 and that the disputed three plots are portions of the 5 Acres of land covered by Ext.A1, then the position would be different. No doubt, the plaintiffs now contend that the disputed three plots are portions of 5 Acres of land S.A. No: 443 & 488/1999 -21- covered by Ext.A1. But, in this connection, the admission made by PW1 has been very much projected by the learned counsel for the appellant which is to the effect that the suit property in O.S.84/73 is situated to the east and south of the 5 Acres of land mentioned in the suit. Admittedly, PW1 did not request the Commissioner to measure the 5 Acres of land covered by Exts.A1 and A2. Of course, if the eastern and southern boundaries are so definite and certain, the fact that the entire property extending to 5 Acres was not measured may not be of much consequence. But, it becomes relevant in view of the fact that PW1 had claimed tenancy right in respect of 1 Acre of land, which was the subject matter of Ext.B1 suit, showing the first defendant as the landlord/jenmi and that O.A. was dismissed. The appeal filed against Ext.B3 was also dismissed. That the entire 5 Acres of land was not measured assumes significance in that background, the learned counsel for the defendant submits. S.A. No: 443 & 488/1999 -22- It was admitted by PW1 that the tenancy right claimed by himself and his father was relating to the property lying immediate to the south-east of the compound wall seen and noted by the commissioner in Ext.C2 plan. It was further stated by PW1 that their case is that besides 5 Acres covered by Ext.A1 and A2, the plaintiffs were in possession of 1 Acre and that 1 Acre of land is situated in between the property possessed by the defendant and the 5 Acres of land covered by Exts.A1 and A2. If this statement was not there and if Exts.B1 to B3 were also not there it would have been easy to find that the plaint schedule property is the 5 Acres of land situated in R.S.No.80/2D7 and that the defendant's property is part of 80/2D8 and that the boundary line between plots 2D8 and 2D7 is the boundary line shown by the commissioner in Ext.C2 plan which is similar to Ext.A4 plan. But, in view of the finding in Exts.B1 to B3 and in the light of the admission made by PW1, it is all S.A. No: 443 & 488/1999 -23- the more necessary that the entire 5 Acres of land claimed by the plaintiffs is measured and the 1 Acre of land which was found to be beyond 5 Acres of land and which is stated to be lying to the west of the property held by the defendants is identified and marked. If as a matter of fact, the three small plots marked in brown, blue and green in Ext.C2(a) plan are exactly portions of the 5 Acres of land obtained by the plaintiffs as per Exts.A1 and A2 then certainly it could have been held that the plaintiffs have title to the said property.
15 In the light of what is stated above, the decree and judgments passed by the courts below are set aside and both suits are remanded to the trial court in accordance with law. But, it is held that Ext.A4 plan is binding on the parties and the different plots marked therein are correct. Though it may appear that the plot 2D8 and a portion of 2D8C marked in Ext.C2 plan are almost the same as shown Ext.A4 S.A. No: 443 & 488/1999 -24- plan, in view of the fact that the entire 5 Acres of land covered by Exts.A1 and A2 were not measured and demarcated, those plots are to be demarcated. Needless to say, the Commissioner's plan in Ext.B1 suit also may help the court to resolve the suit. It is better that the Advocate Commissioner prepares and files an enlarged plan in respect of the disputed property alone besides the plan showing the lie and position of the properties shown as 80/2D7 and the 1 Acre of land covered by Exts.B1 to B3. Parties are directed to appear before the trial court on 14.3.2013. The plaintiff will take steps to get a commissioner issued in the matter for the purposes as aforesaid. The report and plan so obtained shall be treated as further report and plan, and for that purpose the very same Commissioner can also be appointed, provided the Advocate Commissioner is available. The court below will see that the report and plan are obtained at the earliest and that the suit itself is S.A. No: 443 & 488/1999 -25- disposed of as expeditiously as possible taking note of the fact that the suit was filed in the year 1993. Parties are directed to suffer their respective costs.
Sd/-
N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge ani/jjj