Jose Lalichan and Cindralla v. Augustin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932** **SA.No. 748 of 2002(E)** **--------------------------------** **AS.NO.153/2000 OF PRL.SUB COURT, ALAPPUZHA OS.NO.1176/98 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA. ......** ## **APPELLANT(S): RESPONSDENTS:DEFENDANTS:** **-------------------------------------------------------------------------** **1. JOSE LALICHAN S/O. ANTONY, ATHIPUZHA (MENANKADU) KATTOOR, KALAVOOR NOW RESIDING AT ARRESSERIL HOUSE, POLLATHAI P.O., ALAPPUZHA.** **2. CINDRALLA D/O. MICHAEL OF DO.DO.** **BY ADVS. SRI.ROY CHACKO, SRI.TOMY P.T.** ## **RESPONDENT(S): APPELLANT:PLAINTIFF:** **---------------------------------------------------------------** **AUGUSTIN S/O. MICHAEL, PUTHENPURACKAL, POLLATHAI P.O., KATTOOR MURI,MARARIKULAM SOUTH VILLAGE, ALAPPUZHA.** **BY ADV. SRI.S.SANAL KUMAR** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2010,THE COURT ON 3/09/2010 DELIVERED THE FOLLOWING:** **Kss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - ## S.A. No. 748 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of September, 2010. ## **JUDGMENT** The defendants in O.S. 1176 of 1998 before the Munsiff's Court, Alappuzha are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claimed to be the absolute owner in possession of the suit properties, which consists of two items as per Ext.A1 dated 4.1.1989 and Ext.A2 dated 27.7.1998. Plaint item No.2 lies on the east, south and west of item No.1 property. According to the plaintiff, both the properties lie within well defined boundaries and demarcated from the rest of the properties. The second defendant is said to be residing in a hut in the property situate on the southern side of plaint items 1 and 2. The first defendant is the relative of second defendant and he resides with her. According S.A. 748/2002. 2 to the plaintiff, the defendants are attempting to trespass into the suit property and reduce it into their possession. Therefore the suit. 3. The defendants resisted the suit. It is pointed out that the suit was a counter blast to O.S. 1021 of 1998 before the Munsiff's Court, Alappuzha, which has been filed by the defendants against the plaintiff. They disputed the title and possession of the plaintiff over the suit property. They claimed to be the absolute owners and in possession of the same. They denied that they had trespassed into the property owned and possessed by the plaintiff. The allegation that the suit properties were lying well separated and bounded on all sides from the other properties was also denied. On the basis of these contentions, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 and 2 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendants had D.W.1 S.A. 748/2002. 3 examined. On an evaluation of the evidence in the case, the trial court came to the conclusion that the plaintiff had not got the properties properly identified and therefore dismissed the suit. 5. The plaintiff carried the matter in appeal as A.S. 153 of 2000 before the Sub Court, Alappuzha. The appellate court reversed the finding of the trial court and decreed the suit. Hence the appeal. 6. The following questions of law are seen formulated in the memorandum of second appeal: _“(i) Whether the lower appellate court was justified in upsetting the decree of the trial court on the premise that the defendants were not able to produce cogent evidence with regard to the ownership and possession of the plaint schedule property._ _(ii) Whether the lower appellate court was legally justified in granting a decree of injunction in favour of the appellant in the face of contradictory statement of plaintiff while deposing and without any proof of identity of the plaint schedule property as P.W.1._ S.A. 748/2002. 4 _(iii) Whether the court below is justified in granting a decree in favour of the plaintiff without proof of actual physical possession of the plaint schedule property.”_ 7. Learned counsel appearing for the appellant filed a verified petition raising few other questions of law which read as follows: _“(iv) Whether the lower appellate court was legally justified in framing point No.1 and entering a finding thereon ignoring the fact that it was not at all raised as an issue by the trial court?”_ _(v) Was not the lower appellate court bound to frame an additional issue, viz. whether the plaint schedule properties are identifiable and referred the same for trial and finding thereon to the trial court under Order XLI Rule 25 read with Section 107(c) of CPC.”_ 8. The main contention raised by the learned counsel for the appellant is that the lower appellate court was not justified in decreeing the suit in the light of the findings arrived at by the trial court. Attention was drawn to the fact that the defendants had specifically disputed that S.A. 748/2002. 5 the properties were lying well demarcated from the rest of the properties and that they could be easily identified. Inspite of the definite stand taken by the defendants that plaint schedule properties do not lie separately from the rest of the properties and also that the identity was disputed, it was incumbent on the part of the plaintiff to have got the property identified. No commission was taken out to identify the property. Referring to the evidence furnished by P.W.1, it is pointed out that it is very clear that he had no idea about the property at all. Learned counsel pointed out that there was no issue raised before the trial court regarding the identity of the property. The lower appellate court raised an issue in that regard and instead of remanding the matter to the trial court went on to decide the matter. This, according to learned counsel, is not in accordance with the decision reported in **Viswanatha Achari v. Kanakasabapathy** (A.I.R. 2005 SC 3109). It is therefore contended that the decree of the lower appellate court is clearly unsustainable both on facts and in law. S.A. 748/2002. 6 9. Learned counsel appearing for the respondents on the other hand pointed out that there is no merit in any of the contentions raised by the appellant. True, there is some confusion created by the evidence of P.W.1. But he, being a rustic witness, unable to understand properly some of the questions put in cross examination, he made some minor mistakes. Learned counsel went on to point out that they are not vital and they can be easily explained. It is also pointed out that the defendants have no consistent case. The suit made mention of by them in the written statement has been dismissed. They claimed that they are owners in possession of plaint items also. At the time of evidence D.W.1 gives up that case and says that they have no manner of right over plaint item No.1. On a careful reading of the evidence, it can be seen that plaint items 1 and 2 lie within well defined boundaries and can be easily identifiable. Therefore, there are no grounds made out to interfere with the judgment and decree of the lower appellate court. S.A. 748/2002. 7 10. While there is some substance in what is contended by learned counsel for the respondents, there is some merit in the contentions raised by the appellant also. The plaint made mention of two items of properties. Item No.1 consists of 10 cents covered by Ext.A1 and 10 cents covered by Ext.A2. Going by the evidence on record, it would appear that plaint item No.2 lies on the east, south and west of plaint item No.1. It is true that in the written statement, the defendants had disputed the title and possession of the plaintiff over the suit property. But at the time of evidence, D.W.1 conceded that plaint item No.1 belongs to the plaintiff and lies within well defined boundaries. But she asserted that plaint item No.2 is in their possession and the plaintiff had not acquired any manner of right over the same and it has no well defined boundaries. 11. On going through the judgment of the trial court, it is seen that there was no specific issue regarding the identify of the properties. One cannot omit to note that, that was the most crucial issue to be considered by the trial S.A. 748/2002. 8 court. However, it is seen that the lower appellate court specifically raised that issue and went on to decide the same. The complaint of the defendants is that the defendants were taken by surprise by the raising of the issue by the lower appellate court and they had no opportunity to meet the case put forward by the plaintiff. 12. There is some substance in the above contention. Going by the principle laid down by the decisions cited above, in such case, the course to be adopted by the court is to remand the case to the trial court with an opportunity to the parties to adduce further evidence on the issue so raised. 13. It is contended by the learned counsel for the respondent that though one cannot take objection to the principle laid down in the above decisions, that does not apply to the facts of this case. The stand so taken is on the basis of inconsistent cases set up by the defendant at various stages. That, according to learned counsel, is sufficient to show that the claim of the defendant is hollow. S.A. 748/2002. 9 14. Being the defendants, it is possible for them to take inconsistent and even contrary pleas. In the case on hand, it is true that the defendant had disputed the title and possession of the plaintiff over both the items of plaint schedule properties in their written statement. At the time of evidence, D.W.1 gave up the claim regarding plaint item No.1 and conceded that it was lying within well defined boundaries. However, she claimed that plaint item No.2 belongs to her and it is in her possession. 15. On going through the judgment of the lower appellate court and records in the case, it is seen that only plaint schedule item No.1 is having well defined boundaries. There is no discussion in the lower appellate court judgment regarding plaint item No.2. It has already been noticed that plaint item No.2 lies on the east, south and west of plaint item No.1. Even the lower appellate court does not find that plaint item No.2 lies well separated from the rest of the properties. The finding is confined to item No.I, which S.A. 748/2002. 10 according to the lower appellate court lie within well defined boundaries enclosed by a compound wall. 16. When the identity of the property was put in issue, and it was also pointed out by the defendants that there are no demarcating boundaries between the properties, it was necessary for the plaintiffs to take out a commission to identify the property. One fails to understand as to why no commission was taken out to get a report and sketch prepared. That would have been the proper course to be adopted. 17. It may be recollected that the trial court non-suited the plaintiff on the ground that there was no proper identification of the property. It has also referred to the indifferent attitude of P.W.1, who made a mess of his case as a result of the cross examination. 18. Under these circumstances, as rightly pointed out by the learned counsel for the appellant, when the lower appellate court raised an issue regarding the identity of the property, it would have been only proper to remand the S.A. 748/2002. 11 matter to the trial court to try that issue. It cannot be disputed that the main issue in this case is regarding the identity of the property. In the result, this court is unable to sustain the judgment and decree of the lower appellate court. They are accordingly set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the court below on 29.9.2010. The trial court may make every endeavour to dispose of the suit as expeditiously as possible at any rate within six months from the date of appearance of the parties. Parties will be free to adduce further evidence, if they so choose. Office shall send back the records forthwith. Since there is a remand order, the court fee paid by the appellants before this court in respect of this appeal shall be refunded to them. ## **P. BHAVADASAN, JUDGE** sb.