Church of South India Trust Association & The Association Represented by the Treasurer, North Kerala Diocese of Church of South India v Mariamma Abraham and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944** ## **RSA NO. 430 OF 2015** **AGAINST THE ORDER/JUDGMENT IN OS 129/2002 OF MUNSIFF COURT,ALUVA** **AS 176/2011 OF ADDITIONAL DISTRICT COURT II, NORTH PARAVUR** ## **APPELLANTS/APPELLANTS/ADDITIONAL DEFENDANTS NO.3 AND 4:** - **1 THE CHURCH OF SOUTH INDIA TRUST ASSOCIATION, REPRESENTED BY RT. REV.B.N.FEN ITS ATTORNEY AND THE BISHOP OF NORTH KERALA DIOCESE OF CHURCH OF SOUTH INDIA** - **2 THE ASSOCIATION REPRESENTED BY THE TREASURER NORTH KERALA DIOCESE OF CHURCH OF SOUTH INDIA BY ADVS. SRI.PAUL K.VARGHESE SMT.A.A.GEETHA** ## **RESPONDENTS/RESPONDENTS/PLANTIFFS/DEFENDANTS 1 & 2:** - **1 MARIAMMA ABRAHAM W/O.ABRAHAM , RESIDING AT VADAKOTTU HOUSE, C S I COMPOUND, ALUVA KARA, ALUVA WEST VILLAGE OF ALUVA TALUK 683 101(DIED) [LRS RECORDED]** - **2 C I MATHEW TRANSFERRED VICAR ALUVA ST JOHN THE BAPTIST CSI CHURCH PUMP JUNCTION, ALUVA, NOW VICAR AT HOLLY CLINIC CHURCH UC COLLEGE, ALUVA, PIN CODE 683101** - **3 JOHN AGED 54 YEARS S/O.GEORGE , THALIKULAM HOUSE, ALUVA KARA, ALUVA WEST VILLAGE, ALUVA TALUK, PIN CODE 683101** - **4 MARIAMMA @ GRACY AGED 80 YEARS D/O.MARIAMMA ABRAHAM, R/A.VADAKKOOT HOUSE, CSI COMPOUND, ALUVA KARA OF ALUVA WEST VILLAGE, PIN CODE 683101** - **5 JACOB @ BABY AGED 76 YEARS S/O.MARIAMMA ABRAHAM, R/A.VADAKKOOT HOUSE, CSI COMPOUND , ALUVA KARA OF ALUVA WEST VILLAGE 683 101** R.S.A.No.430/2015 2 - **6 SAMUEL @ ANIYANKUNJU AGED 76 YEARS** **S/O.MARIAMMA AMBRAHAM, R/A.VADAKKOOT HOUSE, CSI COMPOUND , ALUVA KARA OF ALUVA WEST VILLAGE 683 101** - **7 DAVID @ KUNJUMON AGED 76 YEARS S/O.MARIAMMA ABRAHAM, R/A.VADAKKOOT HOUSE, CSI COMPOUND , ALUVA KARA OF ALUVA WEST VILLAGE 683 101** - **8 JOY @ BABU AGED 76 YEARS** **S/O.MARIAMMA ABRAHAM, R/A.VADAKKOOT HOUSE, CSI COMPOUND , ALUVA KARA OF ALUVA WEST VILLAGE 683 101** **[IT IS RECORDED THAT LEGAL HEIRS OF DECEASED FIRST RESPONDENT ARE ALREADY IN THE PARTY ARRAY AS RESPONDENTS 4 TO 8 AND THERE IS NO NECESSITY TO IMPLEAD THE LEGAL HEIRS OF FIRST RESPONDENT AS PER ORDER DATED 15.11.2022 VIDE MEMO DATED 10.10.2018] BY ADVS. SMT.DAISY A.PHILIPOSE SRI.JAI GEORGE** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2022, THE** **COURT ON 16.01.2023 DELIVERED THE FOLLOWING:** R.S.A.No.430/2015 3 ## **JUDGMENT** This Regular Second Appeal has been directed against the judgment and decree in A.S.No.176/2011 on the file of Additional District Court-II, North Paravoor, which in turn arise out of the judgment and decree in O.S.No.129/2002 on the file of Munsiff's Court, Aluva. 2. Additional defendant Nos.3 and 4 are the appellants. (Parties would hereinafter be referred as per their status before the trial court). The suit is one for fixation of boundary and permanent prohibitory injunction. Plaintiff is the owner of plaint 'A' and 'B' schedule properties. Plaint A schedule property was acquired by her as per registered sale deed No.589/1966 executed by the Vicar of C.S.I.Church, Aluva. Plaint 'B' schedule property was obtained by her as per Purchase Certificate No.71/1979. She has been in possession and enjoyment of plaint A & B schedule properties and they are lying contiguous on the southern side of Aluva – Perumbavoor public road at a level of 15 feet lower to the public road. She has been residing in the R.S.A.No.430/2015 4 property with her family. The building situated on the northern side which is in occupation of the tenant who is conducting an electric shop therein along with a telephone booth. On the west of it a jewellery shop is being run by the son of the plaintiff. Defendants' property are on the west and north of plaint schedule properties. There are well defined boundary marks on all sides. The barbed fencing on the north and west have been damaged due to passage of time. There are also survey stones on the north and west boundaries. On the south-west portion of the plaint schedule properties plaintiff's son erected a platform on wooden planks up to the level of public road which is described as 'C' schedule. He intended to construct a temporary shop in connection with the festival of the temple. On 26.02.2002 the defendants trespassed into the plaint schedule property and caused damage to 'C' schedule and manhandled the son of the plaintiff. A criminal complaint was also filed in connection with that. Again on 12.03.2002 defendants and their men trespassed into the plaint schedule property and caused damage to the tune of Rs.4,000/-. Against which, plaintiff's son complained to the R.S.A.No.430/2015 5 administration of the C.S.I.Trust properties. So they were not in good terms. Hence the suit has been filed for fixation of northern and western boundaries of plaintiff's properties demarcating from the defendants' property and to restrain the defendants and their men from trespassing and committing waste in the plaint schedule properties. 3. First and second defendants jointly filed written statement and defendants 3 and 4 separately filed written statement on behalf of other defendants contending that the suit is not maintainable, pending the suit, plaintiff influencing the revenue authorities caused to alter the revenue records and thereafter plaintiff wanted to fix the boundaries in accordance with that. Matter in issue has already been decided in O.S.No.492/1986. The plaintiff did not obtain any right or title on the basis of Sale Deed No.589/1966 or on the basis of purchase certificate No.71/1979. So the claim of ownership and possession of the plaintiff over plaint A and B schedule properties is denied. It is not lying contiguously. Re-survey has become final in 1994. She has no property other than the place where the residential R.S.A.No.430/2015 6 building is situated. The platform erected in the property described as 'C' schedule actually belonged to the C.S.I.Trust. Plaintiff's son has no manner of right over the property. Defendants never committed any trespass as alleged. Plaintiff has property only in survey No.44/68 whereas the defendants' properties are comprised in survey No.44/69. Plaintiff influencing the revenue authorities caused to insert survey subdivision No.44/89. Plaintiff has no property in survey No.44/89. 4. PWs 1 to 3 examined and Exts.A1 to A13 marked from the side of the plaintiff. Ext.B1 to B9 marked from the side of the defendants. Ext.C1 to C5(a) were also marked. 5. The learned Munsiff on appreciating the facts, circumstances and evidence found that plaintiff is entitled for fixation of boundaries as shown in Ext.C5(a) sketch and thereby decreed the suit. It is also found that plaint A schedule property is only 6.07 Ares instead of 6.70 Ares mistakenly shown in Ext.C5 (a) plan. Against which, defendants filed appeal and the first appellate court found that plaint A and B schedule properties R.S.A.No.430/2015 7 belong to the plaintiff and thereby confirmed the judgment and decree passed by the trial court. Against which defendant Nos.3 and 4 approach this Court in Second Appeal. During the pendency of first appeal, plaintiff died and her legal heirs were impleaded as additional respondents 4 to 8. 6. On admission this Court formulated the following substantial questions of law: - (i) Whether the courts below grossly misread and wrongly appreciated the pleadings of the parties and the evidence adduced in the case? - (ii) Is the court below justified in decreeing the suit based on resurvey records especially when old survey number in Ext.A1 document is corrected as 206/2 in the place of Sy.No.160/1, when no measurement was conducted based on old Sy. Records and title deeds? 7. Lower court records were called for and both sides were heard. This R.S.A was heard along with R.S.A.No.433/2015 since admittedly A.S.No.176/2011 was heard along with A.S.No.64/2014 which arouse out of judgment and decree in O.S.No.533/2011 as per an order of this Court. R.S.A.No.430/2015 8 8. According to the learned counsel for the appellants/defendants the plaint A and B schedule properties have not been properly identified. The directions in the remand order of the District Court in A.S.No.169/2008 has not been complied with, wherein there was a specific direction to measure plaint A and B schedule properties and property owned by the defendants with the aid of title deeds and approved survey plan and thereafter to pass a revised judgment. But the measurement as per Exts.C5 and C5(a) is again based on resurvey. Hence, it cannot be accepted. It is also his contention that appellants accept the right of the plaintiff over plaint B schedule property which was obtained as per Ext.A5 purchase certificate. But the title claimed by the plaintiff based on Ext.A1 is denied and according to them the plaintiff has got right and title only over the property in which their house is situated. It is also contended that in O.S.No.492/1986 filed by the defendant church against the plaintiff and her two sons, all these matters have been settled and the very same contentions have been raised in the present suit and hence the principle of estoppel also applies. It is further R.S.A.No.430/2015 9 contended that Exts.C5 and C5(a) plan have not been prepared in compliance with the directions in Sabu v. Sasi [ 2022 (2) KHC 435] and hence he seeks for remand of the matter for proper measurement of the property based on title deeds. 9. The learned counsel for the plaintiff on the other hand would contend that an earlier suit filed by the appellants/defendants as O.S.No.469/1999 has been dismissed and the very same contentions have been again raised by the defendants. It is also his contention that the defendants have not produced their title deeds inspite of the specific directions by the first appellate court to measure the property with the aid of title deeds and hence the defendants cannot challenge Exts.C5 and C5(a) report and plan. It is also his contention that in Ext.B1 in O.S.No.533/2011 (judgment in A.S.90/2005 filed against the judgment in O.S.129/2002), the first remand order, the first appellate court has found that plaintiff has right and title over plaint A and B schedule properties as per Ext.A1 and Ext.A5 documents and hence the defendants are estopped from disputing the right and title of the plaintiff as per Ext.A1 and R.S.A.No.430/2015 10 Ext.A5 documents since the remand order in Ext.B1 has not been challenged by the plaintiff and it has become final and hence the defendants cannot dispute the right and title of the plaintiff over plaint A and B schedule properties. It is also contended that two times the case was remanded by the first appellate court and thereafter the impugned judgment was passed and a further remand of the matter would cause great prejudice to the plaintiff. Hence, according to plaintiff, there is no reason whatsoever to interfere with the judgment and decree passed by the first appellate court in the impugned judgment. 10. The records would go to show that O.S.No.129/2002 was decided twice on previous occasions as per the remand orders, Exts.B1 and B2 (in O.S.No.533/2011). Ext.B1 is the certified copy of the judgment in A.S.No.90/2005 which was filed by the plaintiff against the dismissal of the suit (O.S.129/2002) by the learned Munsiff and while setting aside the judgment on 20.11.2006 the First Additional District Court, North Paravur found that the plaintiff established that she has got title, right and interest over the property covered by Exts.A1 and A5 R.S.A.No.430/2015 11 documents. But it is found that as far as the western boundary is concerned except the existence of a stone, there are no other boundary marks and hence the matter was remanded for the limited purpose of fixing the western boundary of the plaintiff's property. Thereafter, the learned Munsiff again found that the commissioner has not properly identified the properties owned by the plaintiff and also found that plaintiff do not have exclusive right and possession over plaint A and B schedule properties and accordingly dismissed the suit. Against which, the plaintiff filed A.S.No.169/2008 (certified copy of the judgment is marked as Ext.B2) and while disposing that matter the first appellate court found that as per Ext.B1 judgment the plaintiff's right and title over plaint A and B schedule properties has been found conclusively as per Ext.B1 (in O.S.No.533/2011) and hence the trial court went wrong in negativing the plaintiff's right and title over plaint A and B schedule properties and accordingly it was set aside. It is again found that the properties were not clearly identified as per Exts.A1 and A5 documents and set aside the judgment and decree passed by the trial court as well as R.S.A.No.430/2015 12 Ext.C2(a) and C3(a) also set aside and the case was remitted to prepare a report and plan and directed the commissioner to measure out plaint A and B schedule properties and property of the defendants with the aid of title deeds and approved survey plan and thereafter to give a revised judgment. In pursuance of the same, a survey commission was appointed and boundary was fixed as per Exts.C5 and C5(a) plan and suit was decreed as prayed for. Against which, first appeal was filed, in which the judgment and decree passed by the trial court has been confirmed. 11. So the question is whether the appellants/defendants are precluded from contending against the remand order in which the first appellate court has found that plaintiff has got right and title over plaint A and B schedule properties. It is relevant in this context to quote Section 105(2) of CPC, which reads thus: **105. Other orders** .- (1) Save as otherwise expressly provided, no appeal shall lie from any Order made by a Court in the exercise of its original or appellate jurisdiction; but. where a decree is appealed from, R.S.A.No.430/2015 13 any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in subsection (1), where any party aggrieved by an order of remand [* * *] from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. As per sub clause (2) of Section 105 CPC any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, thereafter will be precluded from disputing its correctness. But that bar will not apply in cases where the matter reaches a superior forum. 12. Decision reported in Satyadhyan Ghosal & Ors. v. Deorajin Debi and Ors. [AIR 1960 SC 941]. Paragraph No.15 is relevant in this context to be quoted, which reads thus: “15. It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. R.S.A.No.430/2015 14 A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders. The second subsection did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand.” 13. In Krishna Pillai v. Padmanabha Pillai [2004 KHC 544] legal validity of order of remand under Section 105(2) of CPC was dealt with. In paragraph No.24 of the decision this matter has been dealt with, which reads thus: 24. Sub-s.(2) of S.105 of the Civil Procedure Code, 1908 provides that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. The provision is not without exceptions and limitation. First is, when the order of remand is illegal, and more so, if it is without jurisdiction (See Kshitish Chandra Bose v. Commissioner of Ranchi ((1981) 2 SCC 103)). The High Court had in exercise of second appellate jurisdiction R.S.A.No.430/2015 15 illegally reversed the concurrent findings of fact and ordered remand. It was held that in an appeal to Supreme Court from the final order of the High Court after remand, challenge even to the first order of the High Court making remand, and, all the proceedings taken thereafter as a result of the illegal order of remand, was available to be laid. When the matter reaches a forum, superior to one which had made the order of remand earlier, it can go into the question of legality or validity of the order of remand. The bar enacted by S. 105(2) applies up to the level of that forum which had remanded the matter earlier. Secondly, S. 105(2) has no applicability to the jurisdiction exercisable by this Court by reference to Art 136 of the Constitution. This is for the reason that no appeal lies to this Court against an order of remand, an appeal under Art 136 of the Constitution is only by special leave granted by this Court. It is settled law that S. 105(2) has no applicability to the Privy Council and to the Supreme Court (Satyadhvan Ghosal & Ors. v. Smt. Deorajin Debi & Anr. ((1960) 3 SCR 590)). In the present appeal preferred against the judgment and decree passed by the High Court in the proceedings held pursuant to the earlier order of remand dated 10 2 1981 the correctness of the order of remand can be examined and gone into by this Court. So, from the above, it could be discerned that when a matter reaches a forum superior to one which had made the order of remand the superior forum can go into the question of legality or R.S.A.No.430/2015 16 validity of order of remand. The bar enacted by Section 105(2) applies upto the level of that forum which had remanded the matter earlier. 14. In the present case the finding of the first appellate court as per Ext.B2 judgment and the remand order and the directions made therein will not be a bar for this Court to go into the legality or the correctness of the order of remand. So I want to make it specific that the findings in Ext.B2 judgment by the first appellate court to the effect that plaintiff has right and title over the property covered by Exts.A1 and A5 documents will not bind this Court and the contention of the defendants that property covered by Exts.A1 and A5 documents pertain to the same property is subject to the scrutiny of this Court. 15. One of the contentions raised by the plaintiff is that apart from producing Exts.B1 to B8 documents, the defendants did not mount the box and no evidence was adduced to substantiate their contentions. In this context previous case i.e O.S.No.492/1986 filed by the defendants against the plaintiff, which was decreed in their favour and ended in finality assumes R.S.A.No.430/2015 17 importance. 16. Ext.B3 is the certified copy of the plaint in O.S.No.492/1986 which was filed by the Church of South India Trust Association, Shornur represented by the office bearers of the Church. That suit was filed against the plaintiff herein and her two sons. Suit was filed seeking for permanent injunction for restraining them from destroying the compound wall, separating the property of church and that of the defendants and to restore the demolished portion of the compound wall to its original position and also to remove the water connection and pipe line which was erected by the defendants adjacent to the eastern compound wall of the plaintiffs in that case. Ext.B4 is the certified copy of the written statement filed by the defendants in that case and Ext.B6 is the certified copy of judgment in that case. On going through that judgment it is very clear that the defendants in that case (the plaintiff herein and her sons) have contended about their right and title with respect to the properties covered by Exts.A1 and A5 separately and while deciding that issue in paragraph No.10 the court has R.S.A.No.430/2015 18 categorically found that the version given by DW1 (the plaintiff herein) that the properties under Ext.B6 (Ext.A5) and Ext.B3 (Ext.A1) are adjacent properties cannot be true. It is also found that the contention of the defendants in that case that the compound wall has been put up by them in their property cannot be believed and ultimately the court found that it has to be inferred that the defendants demolished the compound wall on their western side and the restoration of the compound wall was denied for the reason that plaintiffs have acquiesced to the acts of the defendants. But plaintiffs were allowed to realise Rs.500/towards the demolition of the part of compound wall. The court also found that the plaintiffs have put up compound wall on the boundaries of their property and the defendants shifted their pipeline to the western side of the compound wall and the said act of the defendants is unauthorized and the defendants are directed to remove that pipeline and the suit was decreed allowing the plaintiffs to restore the western compound wall to its original position to a length of 17 feet and to get the water connection and pipeline laid out by the defendants R.S.A.No.430/2015 19 unauthorizedly near the compound wall situated on the eastern side of the scheduled property and the defendants were directed to remove the pipeline and the defendants were also permanently restrained from trespassing into the plaint scheduled property of the plaintiffs and committing waste therein. Ext.B6 judgment has become final. Ext.B6 judgment would go to show that when there was attempt on the part of the defendants i.e. the plaintiff herein to destroy western compound wall and trespass into the property of the church they have approached the court and a decree was obtained in their favour. In that case also the plaintiff herein contended about the properties obtained by them separately as per Ext.A1 and Ext.A5 and the court categorically found that the properties covered by Exts.A1 and A5 are not lying adjacently. 17. Ext.A9 certified copy of judgment in O.S.No.469/1999 filed by the defendant Church against the plaintiff Mariamma for fixation of boundary of the property of Church and the plaintiff herein which ended in dismissal was relied on by the counsel for the plaintiff. But on going through Exts.A9 judgment it could be R.S.A.No.430/2015 20 seen that one of the reason for dismissal of the suit is that the second and the third plaintiffs have no authority to sue on behalf of first plaintiff church. The other reason is that the commissioner measured the property based on resurvey plan and no document of title and possession of plaint A schedule (the property of the church) has been produced. It is also found that the description of plaint A and B schedule (defendant’s property) is not correct. Though a contention has been raised by the defendant in that case to the effect that 16 cents of property obtained by them as per Patta No.71/79 (Ext.A5) is not included, the court has not gone into that question and no specific finding in that regard has also been entered into. Moreover that was a case filed by the defendant church for fixation of boundary and the present case is filed by the defendant in that case for fixation of boundary. So the burden is upon the plaintiff herself to establish her right, title and possession over plaint A schedule property since there is no dispute with respect to the plaint B schedule property to the defendant. Hence Ext.A9 judgment is of no help to the plaintiff to prove their right and title over plaint A R.S.A.No.430/2015 21 schedule property especially because in Ext.A9 case there is no specific pleading with regard to the devolution of the right over B schedule property to the defendant in that case. But there is specific reference with respect to O.S.No.492/86 in that case where the description of the defendant’s property is only with respect to the property obtained as per Ext.A5. So Ext.A9 is of no use to settle the fact in issue in the present case. 18. Bearing the above factors in mind while appreciating the contentions raised by the appellants that Ext.C5(a) is not acceptable and it is without properly identifying the properties covered by Exts.A1 and A5 has to be given due weightage. The boundaries of properties in Exts.A1 and A5 also will throw some light in this aspect. As per Ext.A1 which is the document by which plaintiff alleged to have purchased plaint A schedule property, the eastern boundary is shown as the property belonging to Moolayil Simon on pattom. 19. The learned counsel for the plaintiff vehemently contend that in Ext.A5 patta issued with respect to 16 cents of land (B schedule property) shows the western boundary as the R.S.A.No.430/2015 22 property of Mariyamma, the plaintiff herein. That, according to the learned counsel, is an indication to show that on the western side of the property covered by Ext.A5 patta is the property belonging to the plaintiff covered by Ext.A1. Even though such an inference can be taken by looking at Ext.A5, when eastern boundary of the property covered by Ext.A1 is shown as the property of Moolayil Simon on pattom the boundaries of Exts.A1 and A5 are seems to be conflicting and contradictory. If at all the eastern boundary of the property covered by Ext.A1 is the property covered by Ext.A5 patta definitely that would have find a place in Ext.A1 sale deed. That is more so because Ext.A5 is the purchase of kudikidappu as per Section 72 of the Kerala Land Reforms Act. The defendants admit the right and title of the plaintiff over the property covered by Ext.A5 purchase certificate, the B schedule and their dispute is with respect to property covered by Ext.A1 i.e. plaint A schedule. In Ext.B6 judgment there is already a finding that property covered by Ext.A1 and A5 are not lying contiguous. But in Ext.C5 (a)plan property covered by Ext.A1 and A5 are drawn contiguous. R.S.A.No.430/2015 23 Though the learned counsel for the plaintiff would contend that the property has been measured as per the title deed, on verifying Ext.C5(a) and the footnotes it is clear that B schedule property has been described as 5.98 Ares as per purchase certificate No.71 of 06.75 and the property as per resurvey and plaint A schedule property has been described as 6.70 Ares of property described in document No.589/1966 of Aluva S.R.O as per resurvey. So it would indicate that though the title deed has been referred in the footnotes the property has been actually measured as per resurvey. That is why re-survey numbers alone have been shown in the plan. 20. The specific case of the appellants/defendants is that there are some concoctions made in the resurvey which has already become final in the year 1994, pending the suit and by adding a new subdivision as 44/89 and they have filed a separate suit also in that regard and the impact of the same would be discussed in R.S.A.No.433/2015. So one thing to be noted in this context is that in Ext.B1 judgment (in O.S.No.533/2011) while the first appellate court found about the right and title of the R.S.A.No.430/2015 24 plaintiffs over plaint A and B schedule properties as per Ext.A1 and A5 documents, the learned district Judge has not appreciated Ext.B6 judgment wherein there is a categoric finding that the property of the defendants (plaintiff herein) is only upto their western compound wall and though there is a specific contention raised by the defendants in Ext.B3 (in O.S. No.533/2011) that the compound wall is within their property and they have property beyond that on the west based on Ext.A1, the court has categorically found that property covered by Exts.A1 and A5 are not lying adjacent to each other and the case of the church that they have put up compound wall on their eastern and northern boundary has been upheld and a direction to restore the compound wall as well as to remove the pipeline and other structures beyond the western compound wall of the defendants property in that case was also allowed. So that is a clear indication that the property now claimed as A schedule is the property which was found to be in the possession of the plaintiff Church in O.S.No.492/1986 and the court also has found that the property covered by Exts.A1 and A5 are not lying R.S.A.No.430/2015 25 contiguous. That may be reason why pending the suit in the year 2004 a new subdivision was added and the property covered by Ext.A1 is shown as in survey No.44/89. 21. Counsel for the defendants also contend about the correction of survey number of the property as 206/2 instead of survey number 160/2 in Ext.B7 (Ext.A1). On looking at the schedule of Ext.B7 there is description of survey number in the beginning as 160/2 of total extent 1409 Ares 16 sq.mtr (34 Acres 82 cents) and east-west 5 dendu (ÆÃíÁ **í** ) and north -south 15 dendu (ÆÃíÁ **í** ) in the lease deed and further described as 558 Ares 88 sq.mtrs (13 Acres 81 cents) in survey 206/2 and 6 Ares 7 sq.mtr (15 cents) within the boundaries. So there seems to have ambiguity in the description of the property in Ext.B7 since in the beginning, survey number shown is 160/2 and total extent shown is 34 Acres 82 cents and with dendu (ÆÃíÁ **í** ) measurements 5 x15 in the lease deed and then describing 13 Acres 81 cents in survey number 206/2. Whether these 13 Acres 81 cents is part of the property described in survey 160/2 in the beginning in which the property described in lease deed is comprised or not is not R.S.A.No.430/2015 26 clear. The body of Ext.B7 reveals that it is the property taken on lease by the mother-in-law of the plaintiff from the Church. In the certified photocopy of Ext.A1 i.e. Ext.B7 in the schedule, survey number is seen corrected from 160/2 to 206/2 also. The above fact also points towards necessity of proper identification of the property covered by Ext.A1. Inference as to genuineness of Ext.A1 by the court below that it is a document of more than 30 years old is also wrong since Ext.A1 (Ext.B7) is not the original. It is well settled that presumption regarding execution under Section 90 of Evidence Act is available only for original documents [ See: Harihar Prasad Singh v. Deonarain Prasad [AIR 1956 SC 305] . 22. It is also to be noted that in Exts.C1 and C1(a) which is the commission report filed by the commissioner at the time of filing the suit the house building, cowshed and two sheds are found by the commissioner in plaint B schedule property, which is the property covered by Ext.A5 purchase certificate, whereas, in plaint A schedule property the commissioner noted a platform with a length of 4.10 metres and width of 3.30 metres on the R.S.A.No.430/2015 27 south-western corner made of wood without any roof and that has been described as C schedule in the plaint. No other structures are found in plaint A schedule property and the old age of wooden platform is also described as not more than one month. So that would indicate that the obstruction came from the side of the defendant church when C schedule wooden platform was put up by the plaintiff in plaint A schedule property which is the disputed property. On going through Ext.A1 sale deed what could be gathered is that though it has been described as a sale deed there is specific description in the body of the document that the property belongs to the church and has been taken on lease by the plaintiff's husband's mother as per lease deed No.1314/1094 and she has been residing therein by constructing a house and making improvements and after her death it was obtained by P.V.Abraham, the husband of the plaintiff and after his death the plaintiff obtained the same and is enjoying the property. (But in Ext.C1 and C1(a) commissioner could not find any house or other structures in plot A schedule property). There is also specific description that she has to obtain purchase R.S.A.No.430/2015 28 certificate and pay tax and enjoy the property as her own. It is in this context that the tax receipts produced from the side of plaintiff assumes importance. Ext.A1 document is of the year 1966, Ext.A2 tax receipt produced by the plaintiff pertaining to Ext.A1 is dated 27.05.2004 in which the survey subdivision is shown as 44/89 and number 69 has been stricken off. Ext.A3 possession certificate pertaining to Ext.A1 is also of the date 03.07.2004 with respect to the property comprised in Block No.44, resurvey No.89 and Ext.A4 encumbrance certificate pertaining to 44/89 (old survey No.206/2) with respect to 6 Ares 7 sq.mtrs of property is also dated 03.07.2004 only though Ext.A1 is of the year 1966. 23. Ext.A5 purchase certificate and Ext.A6 tax receipt pertaining to Ext.A5 with respect to property comprised in 44/68 is also dated 21.01.2004. So that also would go to show that the plaintiff could produce tax receipt of the year 2004 only though Ext.A5 purchase certificate is of the year 1979. So the contention of the defendants that there are some manipulations in assigning resurvey subdivision No.44/89 to the property covered by Ext.A1 R.S.A.No.430/2015 29 cannot be said as baseless. Hence the contention of the learned counsel for the appellants/defendants that the property covered by Exts.A1 and A5 is not properly identified has got much force and Ext.C5(a) prepared on the basis of resurvey measurements cannot be accepted especially in view of Ext.B6 judgment wherein there is a clear finding that property covered by Exts.A1 and A5 are not lying adjacent. 24. The learned counsel for the appellants also would contend that resurvey measurements will not confer any title and Exts.C5 and C5(a) plan based on resurvey measurements cannot be accepted. In this context learned counsel placed reliance on Gurunath Manohar Pavaskar & Ors v. Nagesh Siddappa Navalgund & Ors [AIR 2008 SC 901 : (2007) 13 SCC 565 : 2008 KHC 5198; Navalshankar Ishwarlal Dave & Anr. v. State Of Gujarat & Ors [ 1993 KHC 806] wherein while dealing with Sections 3 and 114 of the Indian Evidence Act it has been held that mutation of the names in the revenue record are not evidence of title. 25. Hence though plaintiff wanted to establish title over 30 R.S.A.No.430/2015 plaint A schedule property based on Ext.C5(a) plan since it is seen to have been prepared based on resurvey measurements it cannot be accepted since resurvey will not confer title. There is already a finding in Ext.A6 judgment that the property covered by Exts.A5 and A1 are not lying adjacent. So at any rate Ext.C5(a) plan prepared by the commissioner with the aid of Taluk surveyor cannot be accepted. 26. Learned counsel for the appellants also placed reliance on Sabu v. Sasi [2022 (2) KHC 435] and would contend that Ext.C5(a) plan is not in consonance with the dictum laid down in the said decision. Ext.C5(a) plan does not contain any ladder and the measurement also is not carried out in consonance with the directions in Sabu v. Sasi. Though the counsel for the respondent/plaintiff would contend that Ext.C2 (a)plan is similar to Ext.C5(a) measurements and hence it can be looked into, as rightly pointed out by the learned counsel for the appellants Exts.C2(a) and C3(a) have already been set aside as per Ext.B2 judgment produced in O.S.No.533/2011. So Ext.C2(a) plan cannot be looked into for finding out the ladder of Ext.C5(a) plan. R.S.A.No.430/2015 31 27. It is contended by the learned counsel for the plaintiff that the defendants did not produce their title deed for measurement inspite of the specific direction in Ext.B2 judgment (in O.S.No.533/2011) and hence they cannot challenge Ext.C5(a) plan which is prepared based on the records produced by the plaintiff. 28. Union Of India & Ors v. Vasavi Co-Op. Housing Society Ltd. & Ors [(2014) 2 SCC 269 : AIR 2014 SC 937 : 2014 KHC 4011] was relied on by the learned counsel for the defendants to contend that in a suit for declaration of title and possession the burden of proof is on the plaintiff and plaintiff could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. It is also held that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited. 29. In this case even though the defendants has not produced their title deeds for measurements that is not a ground R.S.A.No.430/2015 32 to decree the suit filed by the plaintiff without properly identifying the property covered by Exts.A1 and A5 documents claimed by them. 30. From the above discussion, it can safely be concluded that Exts.C5 and C5(a) plan prepared by the commissioner with the assistance of the surveyor is not in accordance with the title deeds and survey plan and hence is not acceptable and is hereby set aside. 31. In the result appeal allowed, judgment and decree passed in O.S.No.129/2002 as confirmed in A.S.No.176/2011 is set aside and the case is remanded to the Munsiff's Court, Aluva. Munsiff is directed to appoint a fresh commissioner with the aid of Taluk Surveyor to measure out and identify the properties covered by Exts.A1 and A5 documents based on the title deeds and survey plan and dispose the case based on the discussions made above and in accordance with law. Parties shall appear before the Munsiff's Court, Aluva on 01.02.2023. Since the case is of the year 2002, the learned Munsiff is directed to dispose the case as early as possible. Parties are directed to bear their R.S.A.No.430/2015 33 respective costs. Pending Interlocutory Applications, if any, are closed. Sd/- **M.R.ANITHA** SHG **JUDGE**