Defendants 1 and 2 who suffered a decree at the hands of the lower appellate court though they were successful before the trial court in having the suit dismissed, are the appellants.
2. The suit was initially one for injunction simpliciter, with a subsequent amendment incorporating a prayer that if defendants 1 and 2 were found to be in possession of any portion of the property to which the plaintiff was entitled to, he may be allowed to recover the same.
3. Both plaintiffs and contesting defendants traced the title to their respective properties to Ext.A1 document, a partition deed of the year 1962. Plaintiffs claim item No. 6 in B schedule property to the partition deed. Property was obtained by Kunhambu through whom plaintiffs and the third defendant claim their title. The allegation was that defendants 1 and 2 were trying to trespass into the suit property and therefore the suit was laid.
4. Defendants 1 and 2 resisted the suit. They pointed out that the property scheduled to plaint cannot be identified and unless plaintiffs and the third defendant prove that the properties scheduled to the plaint are the ones obtained by them as per Ext.A1, they cannot succeed. It is pointed out that in fact it was the property set apart to the predecessor-in-interest of defendants 1 and 2 as per Ext.A1 document, which at a subsequent point of time, came to vest with defendants.
5. After the Commissioners report was obtained, the plaint was amended altering the extent of the property from 35 cents to 52 and odd cents by the plaintiffs and that caused the contesting defendants 1 and 2 to file additional written statement.
6. On the above pleadings issues were raised and parties went to trial. The evidence consists of the testimony of PWs 1 and 2 and Exts. A1 to A6 marked from the side of the plaintiff. The defendants had DW1 examined and had Exts. B1 and B2 marked. Exts. C1 and C2 are the Commissioners report and plan. Ext. X1 is the third party exhibit.
7. The trial court, on an appreciation of the evidence came to the conclusion that the property identified by the Commissioner does not tally with the property scheduled to the plaint and the Commissioner had failed to properly identify the property of the defendants also. Finding that the burden is on the plaintiff to establish their title and possession over the property concerned and since they had failed to get the plaint schedule property identified, the suit was dismissed.
8. Plaintiffs carried the matter in appeal. The appellate court on the other hand held that Exts. A5 and A6 are genuine documents and that would support the claim of the plaintiffs and therefore reversed the decree of the trial court and decreed the suit in favour of plaintiffs.
9. Notice was issued on the following substantial questions of law formulated in the memorandum of appeal:
“(i) Is the lower appellate court justified in holding that the plaintiff has established title to the disputed property when there was gross disparity in the survey number, extent and boundaries ?
(ii) As the suit is for recovery of possession on the strength of title and when the burden is entirely on the plaintiff to establish title, is the lower appellate court justified in holding that the plaintiff has established title based on probabilities ?”
10. Sri. Sreekumar G. (Chellur), the learned counsel appearing for the appellant contended that the dispute is essentially one of identity of the property and the Commissioners report and plan do not go together at all. A mere reading of the Commissioners report would show that the plan does not tally with the statement in the report. Further, it is pointed out that the property claimed by plaintiffs which contains side measurements as per Ext.A1 was not identified by the Commissioner with respect to the side measurements and the boundaries now noticed by the Commissioner do not exactly tally with the boundaries shown in Ext.A1. The learned counsel also pointed out that in the light of the contentions taken by the defendants, what the Commissioner ought to have done was to identify the respective properties obtained by the parties as per Ext.A1 and prepare a sketch and plan regarding the same. The learned counsel went on to point out that even though the sub division may be different, the survey number is the same as far as the properties obtained by plaintiffs and the defendants are concerned and the re-survey number is same.
11. It could be discerned going by the boundaries of the properties said to have been obtained by the plaintiffs and the defendants as per Ext.A1 that the two properties are lying near to each other. The Commissioner has now made a sketch of only the property said to belong to the plaintiffs.
Without identifying the property with reference to the side measurements also, it was not proper on the part of the lower appellate court to have adopted the principle that boundaries prevail, if there is conflict between other terms of the document and therefore the plaintiffs are entitled to a decree. Accordingly, it is contended that the lower appellate court was not justified in reversing the decree of the trial court.
12. Mrs. Vidhya A.C., the learned counsel appearing for the contesting respondents on the other hand pointed out that the contesting defendants had no objection to the Commissioners report and they stood by the same and now they cannot turn round and say that the Commissioners report should not have been accepted. According to the learned counsel, the trial court failed to appreciate the significance of Exts.A5 and A6 documents, the boundaries of which would show that the claim made by the plaintiffs as per Ext.A1 document is true and correct and that the property has been properly identified by the Commissioner. The learned counsel placed reliance on various decisions of this Court which go on to say that in case of conflict of various terms of the documents it is the boundaries that are treated more conclusive, so the said principle should be adopted to identify the property. The learned counsel went on to point out that what the lower appellate court has now done is to accept the Commissioners report and plan to which no objection has been filed by the contesting defendants and therefore there is no prejudice caused to the contesting defendants at all. In short, the contention is that no grounds are made out to interfere with the judgment and decree of the lower appellate court.
13. Though, there may be some substance in the contentions raised by the learned counsel for the respondents, on a closer look, it appears difficult to accept the said contentions. The dispute essentially was one of identity of the property. The contention taken in the written statement was that the property scheduled to the plaint is not capable of identification and that is not the property obtained by plaintiff as per Ext.A1 document. It is true that the contesting defendants 1 and 2 did not file objection to the Commissioners report. However, one cannot omit to note that the plaintiffs filed objection to Commissioners report saying that in spite of demand made by them to measure the property with respect to the side measurements and they had raised several other contentions also and prayed that the Commission report may be remitted to prepare a proper report and plan.
14. The trial court has considered the boundaries as available in Ext.A1 document and found that it is difficult to tally the same with the ones now noticed by the Commissioner. Going by the description in Ext.A1, plaint schedule should be a rectangular plot whereas the Commissioner has identified the plot as an irregular plot. Further, the boundaries shown on the western side of the plaint schedule property do not tally with the boundary as spoken to by the plaintiffs and as shown in Ext.A1.
15. It may be true that in Exts. A5 and A6 may be of some help to the plaintiffs. The boundaries shown in those documents may tally with the boundaries claimed by the plaintiffs. Since it would appear that the properties of the contesting defendants and the plaintiff as per Ext.A1 lie near to each other, the exercise that should have been undertaken is to identify respective properties and prepare a sketch regarding the same. In the case on hand, going by the Commissioners report now available, it is not possible to understand the location of defendants property at all. The lower appellate court on a comparative basis came to the conclusion that the plan compares more similar to the description of the property in the plaint and granted a decree to plaintiffs.
16. The lower appellate court omitted to note that it was after the Commissioners report was filed that the plaintiff had amended the plaint to increase the extent of the property over 52 and odd cents. It is interesting to note that even going by the side measurements shown in the plaint as it now stands, the extent cannot be 35 cents.
17. There is nothing in the Commissioners report to show that an attempt was made to identify defendants property. It is true that the property of the plaintiffs was shown in old survey No. 64/2 whereas the claim of the defendants is survey No. 64/1. It is significant to notice that the resurvey number is identical. One fact becomes very clear and that is the extent of the property available in Survey No. 64 is a larger extent. It is necessary therefore to identify the plots received by the plaintiffs as well as contesting defendants as per Ext.A1 separately with reference to the title deed and then to ascertain as to whether the plaintiffs are seeking relief in respect of the property obtained by them as per Ext.A1 document.
18. There appears to have been no effort from the side of the courts below to identify properties claimed by the plaintiffs as well as defendants in the light of the fact that the name of the property is identical and the boundaries would indicate that they lie near to each other. Further, in the absence of identification of the defendants property by the Commissioner, it may not be possible to come to the conclusion that plaintiffs are entitled to has extent the property as claimed by them. It is significant here to notice that the extent of property as per Ext.A1 document to which the defendants were entitled to has an extent of 50 cents whereas the same documecnt shows the extent of property to which the plaintiffs were entitled to as only 35 cents.
For the above reasons, this Court is unable to accept the findings of the lower appellate court that the Commissioner has properly identified the properties. The judgment of the lower appellate court is set aside and the matter is remanded to the trial court for fresh disposal in accordance with law and in the light of what has been stated above. It is made clear that properties of the plaintiffs and contesting defendants shall be identified by deputing a Commissioner and getting a proper plan and sketch prepared and thereafter, the issue may be decided in accordance with law. The parties will be at liberty to adduce further evidence. The parties shall appear before the trial court on 22.07.2014. The trial court may make every endeavour to dispose of the matter as expeditiously as possible at any rate within a period of six months from the date of appearance of the parties.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE