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2024 DIGILAW 88 (KER)

Laxkshmi B. v. Suku

2024-01-22

A.BADHARUDEEN

body2024
JUDGMENT : This appeal is at the instance of the plaintiffs in O.S.No.293/2012 on the files of the Munsiff Court, Aluva. The appellants assail decree and judgment in A.S.No.51/2017 on the files of the Additional District Court - 11, North Paravur, whereby, the appellate court reversed the finding of the Munsiff, granting the reliefs sought for in the suit. Consequently, the appellate court dismissed the suit and allowed the appeal. The respondents herein are the defendants in the original suit. 2. Heard the learned counsel for the appellants/plaintiffs as well as the learned counsel for the respondents/defendants. 3. Perused the Lower Court Records, in particular with reference to the title deed of the plaintiffs and survey plan. 4. I shall refer the parties as 'plaintiffs' and 'defendants. hereinafter, relegating their status before the trial court, for easy reference. 5. At the time of admission of this appeal, as per order dated 28.10.2021, my learned predecessor raised the following substantial questions of law. "1) Is not the interpretation of the lower appellate court on Exts.Al to A6 in relation to the rights of the appellants as claimed in the suit incorrect and illegal? 2) Is not the lower appellate court justified in discarding Exts.Cl and C1(a), when the same are not assailed by the respondents by filing any objection? 3) Is not the finding of the lower appellate court that the plaint D schedule property is imaginary and there is no trespass upon the plaint C schedule, contrary to sections 54 and 55 of the Transfer of Property Act, 1882, especially when the commission report and plan show otherwise?" 6. Originally plaintiffs filed the suit seeking the relief of recovery possession of the plaint D schedule property on the strength of title. That apart, the relief of permanent prohibitory injunction also was sought for. According to the plaintiffs, plaint D schedule is the property covered by assignment deed No.4066/1978 executed by the predecessors-in-interest of the defendants and the defendants encroached upon the same and a portion of the same now possessed by them. 7. The defendants resisted the suit claiming absolute title and possession over their property on the strength of their title deed, after denying the reliefs sought for in the plaint. Further they also denied encroachment as alleged by the plaintiffs. 8. 7. The defendants resisted the suit claiming absolute title and possession over their property on the strength of their title deed, after denying the reliefs sought for in the plaint. Further they also denied encroachment as alleged by the plaintiffs. 8. The trial court ventured the matter, after raising necessary issues for determination, Exts.Al to A10 were marked on the side of the plaintiffs. Exts.Cl and C1(a) were marked and Cwl and CW2 were examined. No evidence let in by the defendants. 9. On an appreciation of evidence, the trial court found that the commissioner located the property covered by Ext.A2 title deed No.4066/1978 as plots C, Cl and D shown in yellow colour in Ext.C1(a). Accordingly, finding D plot in Ext.C1(a) as the property covered by Ext.A2 in possession of the defendants, vacant possession of plaint D schedule and prohibitory injunction were granted by the trial court as under: "1) Defendants are directed to surrender vacant possession of plaint D schedule property within one month, failing which the plaintiffs can recover it through the process of court. They are permanently restrained from effecting any constructions or obstructing the plaintiff's enjoyment of the said property. 2) Ext.C1(a) plan shall form part of the decree. 3) Parties are directed to suffer their respective costs.” 10. When the matter taken up in the appeal, the first appellate court reversed the verdict of the trial court after scanning the descriptions of the properties mainly relying on resurvey numbers. Accordingly, the appellate court found that D schedule property where suITender was ordered by the trial court is the property in Re.Sy.No.44/14 belonged to the defendants. Consequently, upsetting the verdict of the trial court, the suit was dismissed by allowing the appeal. 11. The leaned counsel for the plaintiffs read out the extent of land covered by Ext.A2, having an extent of 2.0161 cents and identification of the same by the Commissioner as yellow shaded portion covering C, Cl and D plots in Ext.C1(a). He also pointed out that as per Ext.C1(a), the prope]rty of the defendants scheduled as 8 in the plaint also was identified and located as the yellow shaded portion, having an extent of 13.96 Ares equivalent to 34.484 cents. 12. He also pointed out that as per Ext.C1(a), the prope]rty of the defendants scheduled as 8 in the plaint also was identified and located as the yellow shaded portion, having an extent of 13.96 Ares equivalent to 34.484 cents. 12. Accordingly, it is argued by the learned counsel for the plaintiffs that since the property of the defendants is confined to the red shaded portion, the property found to be in possession of the defendants located as D plot in Ext.C1(a), the yellow shaded portion is the property covered by Ext.A2 and therefore, the trial court rightly granted decree and the appellate court wrongly set aside the same without properly appreciating the evidence. Therefore, the learned counsel for the plaintiffs pressed for reversing the verdict of the appellate court in substitution of the trial court verdict granting decree. 13. Opposing the contentions at the instance of the plaintiffs, the learned counsel for the defendants argued that the defendants are ready to surrender any portion of property, excluding 34.484 cents. According to the leaned counsel, D plot as per Ext.C1(a) now identified by the Commissioner which is in possession of the defendants is part and parcel of the property scheduled as 8 in the plaint and the defendants did not possess any property in excess of 34.484 cents. Therefore, the appellate court rightly reversed the trial court verdict. 14. In view of the rival submissions, I have perused Ext.A2 title deed. As per Ext.A2, the extent of property is 2.016 cents. The learned counsel for the defendants submitted that the right of the defendants as per their title deed is confined to 34.484 cents and not beyond that. 15. On perusal of the footnote appended to Ext.C1(a), item No.2 is the plaint .D. schedule property seen described as C, Cl and D plots in yellow shaded colour and out of the same, 15 sq.meters shown as D plot is reported to be in possession of the defendants comprised in Re.Sy.No.44/14. At the same time, as per the descriptions in footnote number 3 appended to Ext.C1(a) plan, the Commissioner reported that property having an extent of 13.96 Ares equivalent to 34.484 cents in Re.Sy.No.44/14 is the property of the defendants shown as red shaded portion. 16. At the same time, as per the descriptions in footnote number 3 appended to Ext.C1(a) plan, the Commissioner reported that property having an extent of 13.96 Ares equivalent to 34.484 cents in Re.Sy.No.44/14 is the property of the defendants shown as red shaded portion. 16. In the instant case, the trial court given emphasis to the title deed of the plaintiffs and the defendants while holding that D plot in Ext.C1(a) is also property covered by Ext.Al title deed of the plaintiffs. When the evidence was reappreciated by the first appellate court, the first appellate court approached the case with reference to the location of the property on the basis of resuIvey numbers ignoring title deed. When a suit for recovery of possession has been filed on the strength of title or in a suit for title declaration, title would prevail over revenue records and resurvey numbers. To put it differently, tax receipts, survey plan, resurvey plan or revenue records do not confer title to anybody, when there is title deed in relation to the said property in favour of the title holder. Therefore, in suits involving title dispute, title would prevail over revenue records, if it is found on measurement that the property covered by the title deed is identified properly justifying the declaration of title and recovery of possession on the strength of title. The said reliefs never be denied merely on the ground that in the revenue records/resurvey records, the said portion of the property is not shown as the property of the plaintiffs. 17. Here, now the dispute is confined to D item in Ext.C1(a) plan, located as having an extent of 15 sq.meters. As per the evidence given by the Commissioner and Surveyor, who were examined as Cwl and CW2 and as per Exts.Cl and C1(a), it could be gathered that 15 sq.meters property in Re.Sy.No.44/14 located as Plot D, yellow shaded portion is the property form part of the title deed of the plaintiffs marked as Ext.A2. Whereas, the property of the defendants is specifically located as 34.484 cents shown as red shaded portion in Ext.C1(a). (In fact, this plot is shown in red shaded boundaries). 18. Whereas, the property of the defendants is specifically located as 34.484 cents shown as red shaded portion in Ext.C1(a). (In fact, this plot is shown in red shaded boundaries). 18. Therefore, it is held that D plot identified and located in Ext.C1(a) yellow shaded portion, having an extent of 15 sq.meters is the property covered by Ext.A2 and thus, the plaintiffs are entitled to get its vacant possession. 19. In view of the above discussion, it is held that the first appellate court not correctly interpreted Exts.Al to A6 documents in relation to the rights of the plaintiffs as claimed by them. Further, the first appellate court not justified in discarding Exts.Cl an C1(a), which were not opposed by the defendants to decide the matter in issue. That apart, the finding of the first appellate court that the plaint D schedule property is imaginary and there is no trespass upon the plaint C schedule contrary to Sections 54 and 55 of the Transfer of Property Act, 1882, ignoring the Commission report and plan is incorrect. To sum up, it is held that the trial court rightly found that D plot in Ext.C1(a) is the property of the plaintiffs on the strength of Ext.A2 though while granting decree surrender was ordered in respect of plaint D schedule as a whole. Therefore, the said finding requires modification and the verdict of the first appellate court required to be set aside. 20. Therefore, this appeal stands allowed, setting aside the verdict of the first appellate court and restoring the verdict of the trial court by modifying the same as under: 1) The defendants are directed to surrender vacant possession of D plot in Ext.C1(a) plan, the yellow shaded portion, having an extent of 15 Sq.meters to the plaintiffs within one month and on failure to do so as directed, the plaintiffs are at liberty to execute the decree through process of court. 2) The defendants are permanently restrained from effecting any constructions in any way obstructing the use and enjoyment of plaint D schedule property located as C, Cl and D plots in Ext.C1(a) plan. 3) Ext.C1(a) plan do form part of the second appellate decree. Considering the nature of contentions, both parties are directed to suffer their respective costs.