Varghese Nelson Roadarikathu Veedu, Vellarada Village, Vellarada Desom v. Rahel Maniyan Meethu Thekke Charivuvila Puthen Veedu, Vellarada Village, Vellarada Desom

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944 RSA NO. 547 OF 2009** **AGAINST THE JUDGMENT AND DECREE DATED 29.08.2008 IN AS 80/2003 OF SUB COURT,NEYYATTINKARA** **OS 1161/1999 OF II ADDITIONAL MUNSIFF COURT, NEYYATTINKARA APPELLANT/RESPONDENT/DEFENDANT:** VARGHESE NELSON ROADARIKATHU VEEDU, VELLARADA VILLAGE,, VELLARADA DESOM. BY ADV SRI.M.BALAGOVINDAN ## **RESPONDENT/APPELLANT/PLAINTIFF:** RAHEL MANIYAN MEETHU THEKKE CHARIVUVILA PUTHEN VEEDU,, VELLARADA VILLAGE, VELLARADA DESOM. BY ADVS. SMT.LIGEY ANTONY SRI.L.MOHANAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2022, THE COURT ON 17.10.2022 DELIVERED THE FOLLOWING: R.S.A.No.547/2009 2 ## **M.R.ANITHA, J** ****************** R.S.A.No.547 of 2009 --------------------------------------------Dated this the 17[th] day of October, 2022 ## **JUDGMENT** This appeal has been directed against the judgment and decree in A.S.No.80/2003 on the file of Subordinate Judge's Court, Neyyattinkara which in turn arise out of the judgment and decree in O.S.No.1161/1999 on the file of Second Additional Munsiff's Court, Neyyattinkara. 2. Suit was one for declaration of title, possession and injunction. (Parties are hereinafter referred as per their status before the trial court). 3. Plaint schedule property was Government land and plaintiff obtained the same as per pattayam No.LA II/8/94. That property has been re-surveyed and thandaper also obtained to the plaintiff. The property lying on the southern and western side of the plaint schedule property belong to the defendant. In R.S.A.No.547/2009 3 between the property of the plaintiff and defendant, on the south and west there is pathway. There are well defined boundaries on all sides of the plaint schedule property. On 04.12.1999 defendant attempted to trespass into the plaint schedule property and demolished southern and western boundaries to annex the same to his property. Though the attempt was defeated due to the intervention of the plaintiff, apprehending future trespass, the suit has been filed. 4. Defendant filed written statement disputing the description of the plaint schedule property. It is contended that the property obtained by the plaintiff as per patta is not lying within the boundaries described in the plaint. The plaintiff has no right over the property comprised in re-survey No.170/2014. Survey No.693/2-2-6-1 does not relates to Re-survey No.170/2014. Plaintiff has no property nearby or adjacent to the property of the defendant. There is no pathway or boundary as alleged. The suit is filed with an intention to take possession of the property of the defendant. Father of defendant obtained 37½ cents of property comprised in re-survey No.693/2 of Vellarada R.S.A.No.547/2009 4 Village as per a sale deed. 17 cents out of it was assigned to Omana and Madhu and remaining property has been transferred to the defendant as per Deed No.1717 of 1994 and his property is lying within the well defined boundaries and plaintiff filed the suit to grab the property of the defendant. Plaintiff has no cause of action against the defendant. 5. PW1 examined and Exts.A1 to A3 marked from the side of the plaintiff. Exts.C1, C1(a), C2, C2(a) were also marked. No evidence was adduced from the side of the defendant. 6. Learned Munsiff, on evaluating the facts and circumstances and evidence adduced, found that the description of plaint schedule property is not based on any document and the boundaries of the plaint schedule property is not stated in Ext.A1 patta. Ext.A3 tax receipts would show that the plaintiff is paying tax only for 4 Ares 40 sq.metres comprised in re-Survey No.170/14. Ext.A1 contains old Survey No.693/2-2-6-1. The plaintiff failed to prove that property comprised in re-survey No.170/14 is the property obtained by him by virtue of Ext.A1. So, ultimately it was found that plaintiff described the property in R.S.A.No.547/2009 5 such a way to include more extent than the property covered by Ext.A1 patta and hence plaintiff failed to prove the title and possession over the plaint schedule property and hence prayer for declaration of title and possession was refused and consequential prayer for injunction was also refused and suit dismissed. 7. Against which plaintiff filed A.S.No.80/2003 before the Subordinate Judge's Court, Neyyattinkara. Learned Sub Judge, on re-appreciating the facts and circumstances and evidence, found that even though plaintiff claimed title and possession as per Ext.A1 with respect to 4.40 Ares of property, the Commissioner reported the possession of the plaintiff over 4.92 Ares. It is further found that plaintiff effected mutation and tax is being paid. Hence trial court ought to have granted a decree in favour of the plaintiff with respect to 4.40 Ares and accordingly the suit is decreed reversing the judgment and decree passed by the trial court. 8. Aggrieved by the judgment and decree passed by the first appellate court, defendant approaches this Court in second R.S.A.No.547/2009 6 appeal. 9. At the time of admission, this Court formulated the substantial question of law as formulated in the R.S.A which reads thus: _(a) Has not the court below gone wrong in declaring the plaintiffs title and possession over plaint schedule when property is not identified?_ _(b) Has not the court below gone wrong in passing an injunction order against defendant when plaintiff miserably failed to identify and prove the description of plaint schedule?_ _(c) Has not the court below gone wrong in shifting the burden of proof?_ _(d) Whether the appellate court is justified in passing a decree when the true sets of facts are misinterpreted._ _(e) Whether finding on mere assumptions are justified while granting injunction?_ 10. Notice was issued to the respondent. Respondent appeared through Adv.L.Mohanan. Lower court records were called for and both sides were heard. 11. According to the learned counsel for the appellant, the plaint schedule property, with respect to which declaration of title R.S.A.No.547/2009 7 and possession has been claimed by the plaintiff, is with respect to 4.40 Ares covered by Ext.A1 patta. But the Commissioner's report and the evidence adduced by the plaintiff would prove that the property now claimed by the plaintiff is having an extent of 4.92 Ares. Finding the excess extent of property in the possession of the plaintiff not covered by patta and further that plaintiff failed to prove the discrepancy of the plaint schedule property and its boundaries, the trial court dismissed the suit. But the first appellate court, without any reason arbitrarily finding that the defendant did not adduce any evidence to prove his title over the plaint schedule property and misconstruing the evidence and rival contentions, decreed the suit and hence the judgment and decree passed by the first appellate court is illegal and unsustainable and he seeks for interference of this Court. 12. Learned counsel for the plaintiff, on the other hand, would fully supports the judgment and decree passed by the first appellate court and according to him, there is no reason whatsoever to interfere with the judgment passed by the first appellate court. R.S.A.No.547/2009 8 13. The averments in the plaint as well as the evidence adduced by the plaintiff would show that the plaintiff is claiming right and title over the plaint schedule property as per Ext.A1. The description of plaint A schedule property in the plaint would go to show that the plaintiff is claiming right and title over 4.40 Ares of property in survey No.693/2-2-6-1, 11 cents in re-survey Block No.36 re-survey No.170/14. During evidence also, plaintiff sticks his right and title over plaint schedule property covered by Ext.A1 patta, Ext.A3 the tax receipt and Ext.A2 re-survey plan. Ext.A3 tax receipts also would show that tax has been paid with respect to 4.40 Ares of property in Re-survey No.170/14. 14. During cross-examination, plaintiff as PW1 admitted that the boundaries were described in the plaint based on the possession and not on the title deed. It is also categorically admitted by him that he has no excess extent of property than covered by Ext.A1. It is in this context that the Commissioner's report and plan assumes significance. As per the Commissioner's report and plan, the property was measured as per re-survey plan and the total extent of property of the plaint schedule R.S.A.No.547/2009 9 property demarcated as per Ext.C1(a) survey sketch is 4.92 Ares. So, obviously there is excess land demarcated in Ext.C1(a) as the plaint schedule property than that has been covered by Ext.A1 patta. 15. Defendant has got a specific contention right from the beginning in the written statement that re-survey No.170/14 does not correspond to survey No.693/2-2-6-1 and plaintiff has no right over the property in survey No.170/2014. The defendant also disputes the boundary as pathway on southern and western side. It is true that the tax receipt produced by the plaintiff would show that he paid tax with respect to the property comprised in re-survey No.170/14 but the extent of property is only 4.40 Ares. So, it is in this context that the evidence of PW1 that he had shown the boundaries as per the possession in the plaint schedule assumes importance. So when the plaintiff has no title or possession as per the tax receipt for an excess land than that covered by Ext.A1 patta, demarcation of 4.92 Ares of property by the Commissioner as the plaint schedule property, as rightly found by the trial court cannot be taken proper identification of R.S.A.No.547/2009 10 the property and since the extent of property in the plaint schedule is 4.40 Ares. Plaintiff sticks to the stand that he has no property excess to the property covered by the patta ie. 4.40 Ares. The declaration of title and possession of the plaint schedule property by the first appellate court without taking note that it include excess land than described in the plaint is illegal, improper and is unsustainable. So, the finding of the first appellate court that defendant did not adduce evidence or proved his title or possession over the plaint schedule property and the Commissioner's report shows that the plaintiff has right and possession over 4.92 Ares and hence the suit has to be decreed is perverse since plaint schedule describes only 4.40 Ares of property. Moreover, the weakness of the defense case is not a ground to grant relief to the plaintiff and in a suit for declaration of title the burden is always on the plaintiff to make out and establish a clear case for granting declaration (See **Union of India & Others v. Vasavi Co-operative Housing Society Ltd & Others : (2014) 2 SCC 269** ). 16. Learned counsel for the defendant would also contend R.S.A.No.547/2009 11 that the excess land found as per the commissioner's report is government puramboke land and the court cannot give any permission to continue to possess the excess land. In this context the learned counsel also drew my attention to **Kaliyaperumal v.** **Marimuthu [2021 (226) AIC 419 (MAD.H.C.)** ]. That was a suit for possession and trial court dismissed the suit and first appeal also dismissed and against which plaintiff approaches the High Court in second appeal and the property in that case was classified as Natham puramboke and it was held that in Natham Puramboke no one can claim total or exclusive right of possession unless Government grants a patta. It is also held that anyone can be in possession of puramboke properties by occupying it but that enjoyment is subject to the risk of eviction by the Government and property being the Government puramboke no one can have a superior right to give permission to enjoy the same. It is also held that whoever occupies and resides in Government puramboke land by putting up hut or house can enjoy the same until he is evicted by the Government or approved by the Government by grant of patta. R.S.A.No.547/2009 12 17. In the present case, the specific contention of the defendant is that plaintiff has no property nearby or adjacent to the property of the defendant. It is also contended that there is no pathway or boundary as alleged by the plaintiff and the suit has been filed with an intention to take possession of the property of the defendant. But the specific case of the plaintiff is that on the southern and western side of the plaint schedule property belongs to the defendant and in between the plaintiff's and defendant's property on south and west there is pathway. Commissioner's report also reveals existence of pathway on southern and western boundary. So apart from filing written statement defendant did not enter the box to substantiate the contentions in the written statement. So also, at the time of argument the specific case of the defendant is that excess land found to be in the possession of the plaintiff is a puramboke land and patta has been obtained to the plaintiff only with respect to 4.40 Ares. So, needless to say that, the defendant has no right over the excess land demarcated by the Commissioner. R.S.A.No.547/2009 13 18. Learned counsel for the appellant would argue that since the suit is one for declaration of title and possession of the plaint schedule property having an extent of 4.40 Ares and title to that extent is proved in evidence, suit has to be decreed. He would contend that the plaintiff has to be permitted to file an amendment application to amend the extent of plaint schedule property as 4.92 Ares instead of 4.40 Ares and for that purpose, he seeks for a remand. But Ext.A1 patta as well as Ext.A3 tax receipt would only prove his title and possession of 4.40 Ares of property. Since the suit is for declaration of title and possession and also for injunction since the plaintiff cannot prove title with respect to 4.92 Ares of property, the Court cannot agree for the request for remand of the case for the purpose of amending the extent of plaint schedule property to 4.92 Ares. In the result, appeal allowed. The impugned judgment and decree passed by the first appellate court is set aside and suit dismissed. In the facts and circumstances, parties shall bear their respective costs. (sd/-) ## **M.R.ANITHA, JUDGE** jsr _P.S to Judge_ _True Copy_