M. Sreenivasan and others v. Thankamony

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 RFA.No. 120 of 2010() --------------------OS.684/1994 of II ADDL.SUB COURT,TRIVANDRUM .................... ## APPELLANTS/PLAINTIFFS: -------------------------------------- 1. M.SREENIVASAN, S/O.MUTHUSWAMY, HINDU, AGED 70 YEARS, RESIDING AT TC.38/1561, ESAKKI AMMAN COIL STREET, PAZHAVANGADI, THIRUVANANTHAPURAM. (EXPIRED) 2. SMT.SANKARA AVADI AMMAL, - D/O.RENGA SWAMY, HINDU, AGED 65 YEARS, RESIDING AT DO. DO. 3. SMT.P.PICHA AMMA, D/O.KAMALAMMA, HINDU, AGED 76 YEARS, RESIDING AT - DO. DO. (DIED) (1ST APPELLANT IS THE LEGAL HEIR) ADDL.APPELLANTS 4 TO 9 IMPLEADED. 4. S. ANANDARAJAN, S/O. LATE SRINIVASAN, AGED 45, T.C. 38/1561, ESAKI AMMAN KOVIL STREET, PAZHAVANGADI, THIRUVANANTHAPURAM. 5. S. MUTHULAKSHMI, D/O. LATE M. SRINIVASAN, AGED 42, T.C. 38/1561, ESAKI AMMAN KOVIL STREET, PAZHAVANGADI, THIRUVANANTHAPURAM. 6. S. VENKATACHALAPATHY, S/O. LATE M. SRINIVASAN, AGED 40, T.C. 38/1561, ESAKI AMMAN KOVIL STREET, PAZHAVANGADI, THIRUVANANTHAPURAM. 7. S. GANESH KUMAR, S/O. LATE M..SRINIVASAN, AGED 38, T.C. 38/1561, ESAKI AMMAN KOVIL STREET, PAZHAVANGADI, THIRUVANANTHAPURAM. 8. S. BALAJI, S/O. LATE M.SRINIVASAN, AGED 35, T.C. 38/1561, ESAKI AMMAN KOVIL STREET, PAZHAVANGADI, THIRUVANANTHAPURAM. 9. S. SREEDEVI, D/O. LATE M.SRINIVASAN, AGED 28, T.C. 38/1561, ESAKI AMMAN KOVIL STREET, PAZHAVANGADI, THIRUVANANTHAPURAM. ADDL. APPELLANTS 4 TO 9 IMPLEADED AS THE L.RS OF THE DECEASED FIRST APPELLANT AND IT IS ALSO RECORDED THAT THE 2ND APPELLANT WHO IS ALREADY IN THE PARTY ARRAY, AS ONE OF THE LEGAL REPRESENTATIVES OF THE DECEASED FIRST APPELLANT VIDE ORDER DT.14.6.11 IN I.A.1581/11. BY ADV. SRI.M.RAMASWAMY PILLAI SRI.V.BAHULEYAN SRI.P.M.JOSEPH RESPONDENT(S): DEFENDANT: -------------------------------------------- SMT.THANKAMONY, W/O.SREEKUMARAN NAIR, AGED 58 YEARS, RESIDING AT T.C.28/2034 SREEKANTESWARAM, OPPOSITE TO SREEKANTESWARAM PARK, FORT, THIRUVANANTHAPURAM. ADV. SRI.M.BALAGOVINDAN SRI.T.K.ANANDA PADMANABHAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 120 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of November, 2011. ## **JUDGMENT** The plaintiffs in O.S.684 of 1994, who were non-suited by the court below are the appellants. During the pendency of this appeal the first appellant died and his legal heirs have been brought on the party array as additional appellants 4 to 9. 2. The plaintiffs claimed to be the owners of the properties having purchased the same under Exts.A2 to A4. The defendant is alleged to be the tenant occupying the building bearing TC No.37/2030 with a liability to pay rent at the rate of Rs.200/- per month. The rent were kept in arrears. The plaintiffs approached the Rent Control Court for appropriate reliefs. Therein the defendant denied the tenancy arrangement and disputed the title of the plaintiffs over the building. The Rent Control Court found that there is a bona fide denial R.F.A.120/2010. 2 of title of the landlords and therefore the plaintiffs were relegated to a suit. The plaintiffs claimed that plaint A schedule property has an extent of 34 cents of property comprised in Sy. Nos.726 and 727 of Vanchiyoor Village. It originally belonged to Narayani Itti Gouri Itti of Mangode Illam. The tracing of title is narrated in detail in the plaint. There was a previous suit, details of which are not relevant for the present purpose. The first plaintiff claims to have purchased plaint B schedule item No.1 as per Ext.A3 dated 7.12.1990 and the second plaintiff purchased B schedule item No.2 as per Ext.A2 document and the third plaintiff acquired plaint B schedule item No.3 as per Ext.A4. All the three properties lie as a contiguous plot. In fact there were five buildings. The defendant is occupying the premises as tenant in respect of the building. In the case on hand, the defendant is occupying the building in C schedule property. The plaintiffs in fact alleged that it was on a licence that the defendant was occupying the premises. Since the licence R.F.A.120/2010. 3 was terminated, the defendant has no right to continue in possession and therefore the suit was laid. 3. The defendant entered appearance and contested the case. She disputed both title and possession of the plaintiffs over the suit property. She contended that the plaintiffs never had rights over the properties comprised in Sy. Nos.726 and 727 of Vanchiyoor Village at any point of time. She contended that the documents relied on by the plaintiffs are fabricated and concocted documents. The defendant claimed that she is in occupation of the property not as a tenant, but as owner. She contended that she is in continuous and uninterrupted possession of the property and the building from 1960 onwards and exercising the rights as real owner of the property. So, even if the plaintiffs or their predecessors in interest had any manner of right over the property, that was lost by adverse possession and limitation. On the basis of these contentions, they prayed for a dismissal of the suit. 4 R.F.A.120/2010. 4. On the basis of the above pleadings, issues were raised by the court below. After trial along with three other suits, the present suit was dismissed. The plaintiffs preferred appeal before this court and this court by judgment dated 19.1.2005 remanded the case since the plaintiffs had filed an amendment application and also produced large number of documents. While remanding the matter to the trial court, this court observed that the matter be disposed of after taking fresh evidence. It appears that after the remand in three of the suits the defendants did not co-operate. So the court below was constrained to delink this case from other cases. Further evidence was adduced and after hearing both sides the court below found that the plaintiffs have not been able to get the properties identified and also that they were not able to produce the original documents on which they placed reliance. On the basis of these findings, the suit was dismissed. R.F.A.120/2010. 5 5. Learned counsel appearing for the appellants contended that the court below was not justified in dismissing the suit on the ground that the documents were registered at a place in Tamil Nadu while the properties are situated in Trivandrum. The finding of the court below that since original documents were not produced, the plaintiffs cannot succeed also cannot be countenanced. The plaintiffs also complained that the Commissioner has not properly identified the property and that has resulted in miscarriage of justice. In short, the contention is that the judgment and decree are clearly unsustainable on facts and in law. 6. Learned counsel appearing for the respondent on the other hand pointed out that the remand order specifically mentions the parties to adduce further evidence and produce all the necessary documents. The plaintiffs are very casual about the conduct of the case and a reading of the evidence of P.W.1 would show the careless manner in which he conducted the case. The fact that the plaintiffs R.F.A.120/2010. 6 had not produced originals of Exts.A2 to A4 and also the fact that the documents were registered in Tamil Nadu have created suspicion in the mind of the court below. These facts persuaded the court below to dismiss the suit. Finally, it is contended that there are no grounds to interfere with the judgment and decree of the court below. 7. After hearing the arguments in the case and having perused the records, this court finds it difficult to accept the finding of the court below for more reasons than one. Ext.A2 to A4 were copies of sale deeds. It is seen that the originals were produced in another suit. Of course the plaintiffs ought to have stated these facts before the court below instead of producing the copies. The contention that since the original documents were not proved, title is not proved cannot be accepted. 8. A reading of the commissioner's evidence and the commission report shows that no attempt has been made by the Commissioner to identify the property as is 7 R.F.A.120/2010. required for a just and proper decision in the case. It does not appear that the Commissioner has perused the documents produced by the plaintiffs in the case. He was unable to remember anything about the matter. The commission report is also not helpful in the matter. The court below has picked out a stray sentence from the evidence of the commissioner to find against the plaintiffs. 9. Another reason given is that at the time of execution of Exts.A2 to A4 the vendors had handed over a list of the tenants in their property. Since that list has not been produced, there is want of evidence to show that the defendant was the tenant. 10. That obviously cannot be a reason to disbelieve the plaintiffs. The questions remain to be considered is whether there was proper identification of the properties covered by Exts.A2 to A4 and whether the claim put forward by the defendant that she has got independent rights over the suit property is proved or not. For answering R.F.A.120/2010. 8 this, a proper identification of the suit property is absolutely necessary. It would appear that the commissioner has not perused the documents produced by the plaintiffs in the case. Of course, there is some laches on the part of the plaintiffs in not producing the original documents. They were very casual about it. But the fact remains that there has not been a proper identification of the property. 11. The fact that the documents were registered in Tamil Nadu when the properties were in Trivandrum is not a ground to dismiss the suit. Item No.1 is situated in Tamil Nadu and if that be so, it cannot be said that the registration in Tamil Nadu is bad in law. Even assuming that the sale deeds in respect of the properties situate in Trivandrum were registered in Tamil Nadu, it is extremely doubtful whether it can be said that the sale deeds are invalid in the light of the decision reported in **Thrasia v. Varkey Mathai** (AIR (38) 1951 Travancore-Cochin 42). R.F.A.120/2010. 9 12. It is true that the weakness in the defence case is not a ground to grant a decree in favour of the plaintiffs. May be that the defendant was unsuccessful in proving her independent title to the suit property. That, as rightly noticed by the court below, will not result in a decree in favour of the plaintiffs. But in the case on hand, all that the plaintiffs needed is identification as per Exts.A2 to A4 and that has not been done. The non-production of the originals of Exts.A2 to A4 is not a ground to non-suit the plaintiffs. Once it is shown that the plaintiffs have got title over the suit property, then the burden shifts to the defendant to prove better title. 13. On going through the judgment, it is seen that these vital aspects have not been taken note of and also that the properties have not been properly identified. The real issues have not been determined and that has resulted in the impugned judgment and decree. R.F.A.120/2010. 10 In the result, this appeal is allowed, the judgment and decree of the court below are 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. If the parties so choose, they may be permitted to adduce further evidence. The plaintiffs will produce the originals of the documents on which they placed reliance. Parties shall appear before the trial court on 22.12.2011. The court below 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. **P. BHAVADASAN, JUDGE** sb.