Karthikeyan v. Kairali and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938 RSA.No. 1208 of 2008 (B) ------------------------- AGAINST THE JUDGMENT & DECREE DATED 28-11-2007 IN AS 63/2005 of VI ADDL.DISTRICT COURT, ERNAKULAM AGAINST THE JUDGMENT & DECREE DATED 16-07-2004 IN OS 1293/2002 of I ADDL. MUNSIFF COURT, ERNAKULAM ## APPELLANT/APPELLANT/PLAINTIFF: ---------------------- KARTHIKEYAN, AGED 70 YEARS,S/O. AYYAPPAN, PULLYADATH, NOW RESIDING AT, MANATTIL HOUSE, THEKKUMBHAGOM.P.O., PUTHIYAKAVU, THEKKUMBHAGOM VILLAGE. BY ADVS.SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN ## RESPONDENT(S)/RESPONDENTS/DEFENDANTS: -------------------------- 1. KAIRALI, AGED 48 YEARS, - W/O. LATE RAVEENDRAN, ANJADITHITTAYIL, CHILAVANNOOR, RAVEENDRAN ROAD, CHILAVANNOOR, ELAMKULAM VILLAGE. 2. SINDHU, AGED 24 YEARS, - D/O. LATE RAVEENDRAN, ANJADITHITTAYIL, CHILAVANNOOR, RAVEENDRAN ROAD, CHILAVANNOOR, ELAMKULAM VILLAGE. 3. GIRISH, AGED 22 YEARS, - S/O. LATE RAVEENDRAN, ANJADITHITTAYIL, CHILAVANNOOR, RAVEENDRAN ROAD, CHILAVANNOOR, ELAMKULAM VILLAGE. 4. RATHEESH, AGED 20 YEARS, S/O. LATE RAVEENDRAN, ANJADITHITTAYIL, CHILAVANNOOR, RAVEENDRAN ROAD, CHILAVANNOOR, ELAMKULAM VILLAGE. ....2 RSA.No. 1208 of 2008 (B) 2 R1-R4 BY ADVS. SRI.K.S.BABU SMT.N.SUDHA SRI.K.S.GOPI SRI.BABU SHANKAR SRI.K.V.WINSTON SRI.VIPIN VISWAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OKB ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ R.S.A. No.1208 of 2008 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 15[th] day of December, 2016 ## JUDGMENT ~ ~ ~ ~ ~ The sole question to be considered in this appeal is, whether the lower appellate court is justified in denying the request for remand for proper identification of the property, in view of the facts and circumstances of the case. The facts necessary for answering the above question alone need be narrated in this appeal. 2. The appellant is the plaintiff in O.S. No.1293/2002 on the files of the Additional Munsiff's Court, Ernakulam and the predecessor of the respondents was the defendant in the suit. The suit was one for recovery of possession and consequential injunction. According to the plaintiff, the plaint schedule property having an extent of 6 cents belongs to him by virtue of Ext.A3 partition deed. The total extent of the property was 40 cents. Out of that 40 cents, firstly he sold away 24 cents and thereafter 9 cents and the balance extent of property is 7 cents. The property on the southern side belongs to the defendant as _RSA.1208/08_ **:2:** per document No.2295/1965. Out of that, the defendant had sold away 3½ cents to one Damodhar Shenoy and thereafter the defendant is in possession of only 6.500 cents. The plaintiff further claims that B schedule property having an extent of 1 cent was also a part of remaining 7 cents of property. But, the defendant is in possession of B schedule property. Earlier, the defendant filed O.S.No.1665/92 before the court below seeking declaration and prohibitory injunction with respect to B schedule property, which now forms a part of the property in possession of the defendant. A survey commission had been issued in that suit and the commission measured the property and submitted Ext.A4 report along with plan and as per that plan and report also, the B schedule property, which stands comprised in Sy.No.668/4 forms a part of plaintiff's 7 cents of property. After considering the evidence on record in that case, the trial court dismissed the suit O.S.No.1665/1992 and rejected the claim of the defendant over B schedule property. Therefore, the plaintiff is entitled to get recovery of plaint B schedule property as the same forms a part of 7 cents of property. 3. In the written statement, the defendants denied _RSA.1208/08_ **:3:** the plaintiff's claim over B schedule property. According to the defendants, B schedule property is not part of A schedule property. The defendants further contended that out of the total extent of property, what remains in possession of the plaintiff is only 6 cents of property. Apart from the sale in favour of different purchasers the plaintiff has surrendered 2½ cents for the construction of K.T.Mathew Road. But the said fact has not been disclosed in the plaint. Therefore the plaintiff is not entitled to recover plaint B schedule property, which is in possession of the defendants for the last so many years. 4. On the rival pleadings both parties adduced oral and documentary evidence and the trial court dismissed the suit on a finding that B schedule property is not identifiable and no reliance can be placed on Ext.A1 judgment passed in O.S.No.1665/1992 or Ext.A4 commission report and plan filed therein. In appeal, the appellate court also concurred with the aforesaid finding and dismissed the appeal. Thus, the concurrent findings, whereby the plaintiff's claim over plaint B schedule property stands rejected, are assailed in this appeal. 5. Heard the learned counsel for the appellant and _RSA.1208/08_ **:4:** the learned counsel for the respondents. 6. The sum and substance of the arguments advanced by the learned counsel for the appellant is that where it was found that the property was not identifiable, it was incumbent upon the court to appoint a commission to identify the property and the court below is not justified in rejecting the prayer for a remand for adducing more evidence. In support of the above arguments, the learned counsel for the appellant cited the decision of this Court reported in Metal Industries (Ltd.), Shornur and Another v. Geetha Parangath and Another [2013 KHC 513]. 7. On the other hand, the learned counsel for the respondents submits that even though the earlier suit O.S.No.1665/1992 was dismissed by Ext.A1 judgment, that does not confer title or right to recover B schedule property on the plaintiff. According to the learned counsel for the respondents, the plaintiff has suppressed the acquisition of 2½ cents of property to K.T.Mathew Road and after the sale and surrender the plaintiff has 6 cents of property only. In short, the plaintiff has neither title nor possession over plaint B schedule property and B schedule property does not form a part of plaintiff's 7 _RSA.1208/08_ **:5:** cents of property. 8. Going by the impugned judgment under challenge, as rightly submitted by the learned counsel for the appellant, the courts below have arrived at a concurrent finding that plaint B schedule property is not an identifiable one. It is true that unless the property, which is sought to be recovered, is measured out and identified no relief can be granted in a suit for recovery of possession under the title. But in the instant case, it appears that the plaintiff has fully relied on the findings in Ext.A1 judgment and identity of the property in Ext.A4 commission report and plan. But the courts below have not placed reliance either on Ext.A1 judgment or on Ext.A4 commission report and plan. It is not disputed that in Ext.A4 commission report and plan, the plaintiff's property was not measured or identified. But B schedule property alone was identified. This Court is also of the view that B schedule property cannot be recovered as a part of A schedule property, unless A schedule property also is measured. In that view, I cannot find fault with the court below in not placing reliance on Ext.A4 commission report. But, the courts below stopped the _RSA.1208/08_ **:6:** adjudication process there and dismissed the suit without affording an opportunity to identify the property. 9. In the decision reported in Metal Industries (Ltd.), Shornur and Another v. Geetha Parangath and Another [2013 KHC 513] this Court considered the inherent duty of the court in a situation where the property could not be identified for granting recovery and held as follows: **“** _20. Under Section 9 of the Code Civil Court has jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. 'Jurisdiction' means the legal authority to administer justice according to the means which the law has provided and subject to the limitation imposed by that law upon the judicial authority. Jurisdiction of the Civil Court is plenary. The 'Court' is an adjudicating body which performs judicial function of rendering definite judgments having finality and authoritativeness to bind the parties litigating their rights before it in exercise of the sovereign judicial power transferred to it by the State. The sovereign judicial power of the State to try all suits of a civil nature is transferred to the Civil Court subject to the exception stated in Section 9 of the Code._ _21. Under Rule 2 of Order XIV of the Code the Court, subject to the provisions of sub-rule(2) has to pronounce a 'judgment' on all issues. A 'judgment' is the final and solemn adjudication and determination of the rights of the parties in and to the subject-mater litigated. The Code confers wide powers on the Court to determine_ _RSA.1208/08_ **:7:** _the issues raised before it and pronounce judgment on such issues. For instance, Rule 2(4) of Order 18 of the Code empowers the Court, for reasons to be recorded to direct or permit any party to examine any witness at any stage of the suit. Rule 18 of Order 18 empowers the Court to inspect any property or thing concerning which any question may arise in the suit at any stage of the suit. Rule 9 of Order 26 confers power on the Court to issue a commission for local investigation. Exercise of powers as illustrated above is not dependent on any of the parties making a request to the Court in that behalf. Even without such request the Court can exercise such powers its own or and do what is necessary, direct any of the parties before it to take the necessary steps. If a party refuses to perform an act as directed by the Court without sufficient reason, the Court is vested with the power to strike off his pleadings. The sovereign judicial power is conferred on the Court to determine the disputes before it in discharge of its functions in a fair and just manner, pronounce judgment on the disputes and thereby render justice to the parties before it.”_ 10. The proposition that can be culled out from the above decision is that in a suit for recovery of possession, where the properties are not properly identified, it is incumbent upon the court to either grant an opportunity to the parties to take a commission to prepare a report and plan and to identify the property or to appoint a commission by the court itself at the expenses of the _RSA.1208/08_ **:8:** parties. But, in the instant case, though in the lower appellate court, the plaintiff prayed for remanding the case, for getting an opportunity to take out a commission to identify the property, such a prayer is seen rejected by the court below without sufficient reason. The court below is not justified in dismissing the appeal. It follows that this Court is inclined to set aside the impugned judgments and decrees passed by the courts below, to grant an opportunity to the parties to adduce further evidence and I do so. 11. In the above view of the matter, the parties shall appear before the trial court on 24.1.2017 and the trial court shall pass judgment afresh, after affording an opportunity to adduce further evidence to both parties. This Appeal is allowed. All pending interlocutory applications will stand closed. Sd/K.HARILAL, Judge. Okb/Al