Kerala High Court
T.K.Sathyababu vs K.V.Sarada Also Known As Sarada Wilson on 26 May, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY,THE 26TH DAY OF MAY 2014/5TH JYAISHTA, 1936
RSA.No. 654 of 2012 ()
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AS 49/2011 of I ADDL.DISTRICT COURT, THIRUVANANTHAPURAM
IN OS 305/2005 of I ADDL.SUB COURT, THIRUVANANTHAPURAM
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APPELLANT/APPELLANT/PLAINTIFF:
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T.K.SATHYABABU
S/O.KRISHNAN, RESIDING AT T.C.14/313, ARUVEES VEEDU,
AVANAVANCHERRY VILLAGE, ATTINGAL, THIRUVANANTHAPURAM.
BY ADVS.SRI.G.S.REGHUNATH
SRI.K.RAJESH KANNAN
SRI.A.S.SHAMMY RAJ
SRI.P.SHANES
RESPONDENT/RESPONDENT/DEFENDANT:
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K.V.SARADA ALSO KNOWN AS SARADA WILSON,
W/O.LATE DAVIS WILSON, T.C. 2/3240, KULANGARA LANE,
PATTOM P.O., THIRUVANANTHAPURAM - 695 013.
R1 BY SMT. SUMATHY DANDAPANI SENIOR ADVOCATE
BY ADVS. SRI.MILLU DANDAPANI
SRI.PAUL MATHEW (PERUMPILLIL)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 27/3/2014, ALONG WITH RSA. 769/2012, RSA. 770/2012, RSA. 774/2012,
THE COURT ON 26-05-2014 DELIVERED THE FOLLOWING:
BP
P. BHAVADASAN, J.
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R.S.A. Nos. 654, 769, 770 &
774 of 2012
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Dated this the 26th day of May, 2014
JUDGMENT
Three suits, namely, O.S. Nos. 941 of 1995, 305 of 2005 and 229 of 2007 were tried together and disposed of by a common judgment. All the suits were dismissed by the trial court. There was a counter claim in O.S. No. 941 of 1995. Against the dismissal of the suits, respective parties filed appeals before the lower appellate court. The appeal from O.S.941 of 1995 was allowed and decree was granted in favour of the plaintiff and other appeals were dismissed.
2. Among the three suits, O.S.941 of 1995 was treated as the leading case. The parties and facts are hereinafter referred to as they are available in the said suit. In O.S.941 of 1995 the sole defendant apart from contesting the suit preferred counter claim also.
R.S.A. 654/2012 & con.cases.
2
3. O.S. 941 of 1995 was a suit for injunction against trespass in respect of 14 = cents comprised in Sy. No. 1704. O.S.229 of 2007 was by the defendant in O.S.941 of 1995 seeking declaration of title, recovery of possession and injunction in respect of 4.132 cents in the same survey number. O.S. 305 of 2005 was also a suit by the defendant in O.S.941 of 1995. That suit was for injunction alone in respect of 4.644 cents in the same survey number.
4. Bereft of unnecessary details, the plaintiff in O.S. 941 of 1995 laid claim to 14.55 cents as per Exts. A2 and A3 dated 21.11.1992 ad 2.12.1995 respectively. The total area covered by the two sale deeds is 25 cents. The plaintiffs, being a suit for injunction, claimed exclusive possession over the suit property and on the allegation that the defendant is trying to trespass into the suit property, laid the suit. The defendant apart from resisting the suit also filed a counter claim disputing the right and title of the plaintiffs and asserting right over the suit property in himself. He asserted R.S.A. 654/2012 & con.cases.
3that he was in possession of the plaint schedule property by virtue of Exts. B1 and B2 deeds dated 6.1.1994. The defendant also pointed out that on an earlier occasion when the plaintiff tried to trespass into his property, he had filed O.S. 1456 of 1994. While the said suit was pending, the first plaintiff herein, in execution of the decree in O.S.59 of 1950, took delivery of the property. Therefore the defendant herein had withdrawn O.S. 1456 of 1994 with liberty to file a fresh suit. Several other contentions were also raised by the defendant in O.S.941 of 1995 disputing the claim put forward by the plaintiffs which are not relevant for the present purpose.
5. The plaint was subsequently amended and additional written statement was filed. In the additional written statement, the definite stand taken by the defendant was that execution proceedings in O.S.59 of 1950 was not binding on the defendant and it does not affect his rights to the suit property.
R.S.A. 654/2012 & con.cases.
4
6. O.S.305 of 2005 was a suit for injunction in respect of 4.644 cents of land belonging to the plaintiff who is actually the defendant in O.S.941 of 1995, who obtained it under Ext.B1 dated 6.1.1994. The definite allegation in O.S. 305 of 2005 was that the plaintiff and defendant had properties on the eastern side and the plaintiff in O.S.941 of 1995 is trying to trespass into the property of the defendant in O.S. 941 of 1995 and therefore the suit was laid.
7. O.S. 229 of 2007 was in respect of 4.132 cents acquired by the plaintiff as per Ext.B1. He sought for declaration of title and recovery of possession of the property. In both the suits, namely, O.S. 305 of 2005 and O.S.229 of 2007 the defendants in those suits resisted the respective claims made in the suits.
8. Issues were raised in the respective suits and the parties went to trial. The evidence consists of the testimony of P.W.1 and documents marked as Exts, A1 to A25 from the side of the plaintiff in O.S. 941 1995. The defendant examined R.S.A. 654/2012 & con.cases.
5D.Ws.1 to 5 and Exts.B1 to B5 marked. Exts.C1 to C3 are the commission reports. The trial court on an appreciation of the evidence came to the following findings:
(i) As far as O.S. 941 of 1995 was concerned, the trial court found title with the plaintiff in the suit, but relying on a sentence in the plaint that delivery proceedings are pending, declined to grant injunction on the ground that the plaintiff was not in exclusive possession of the property as on the date of suit.
(ii) As regards the contention in the suit that since the defendant admitted that he was dispossessed in delivery proceedings, he was not in possession of the property and his claim was also dismissed.
(iii) In O.S. 305 of 2005 the plaintiff did not prove his title and possession to the suit property and the court dismissed the suit.
(iv) The trial court noticed that the plaintiff in O.S. 229 of 2007 claimed right over the plaint schedule property as per Exts.B1 and B2. The court also noticed that since the R.S.A. 654/2012 & con.cases.6
claim of the plaintiff is that he was wrongly dispossessed, the proper remedy was to approach the execution court under Section 47 of the Code of Civil Procedure or under Order XXI Rule 101 of C.P.C. Holding so, O.S. 229 of 2007 was also dismissed.
9. The aggrieved parties went up in appeal. A.S. 288 of 2009 was filed by the plaintiff in O.S. 941 of 1995. A.S. 283 of 2009 was filed by the defendant in the said suit. The plaintiff in O.S. 229 of 2007 and O.S. 305 of 2005 filed A.S. Nos. 370 of 2010 and 49 of 2011 respectively against the corresponding decrees. The appellate court on an independent evaluation of the evidence came to the following conclusions:
(i) The plaintiff had title to the suit property consisting of 14 and odd cents and also that the defendant in the said suit had filed an affidavit before the High Court in a Civil Revision Petition wherein he had admitted that the plaintiff in O.S. 941 of 1995 had taken delivery of the property and therefore possession was with the plaintiff R.S.A. 654/2012 & con.cases.7
in the said suit. Holding so, A.S. 288 of 2009 was allowed and O.S. 941 of 1995 stood decreed.
(ii) The appellate court found that the claim of both the parties is based on Ext.A6 document. The appellate court then found that the plaintiff in O.S.941 of 1995 obtained 25 cents of property by virtue of sale deeds Exts. A2 and A3 which are parts of plot shown as No.1 in Ext.A6. The appellate court also traced title of the defendant in both the cases and came to the conclusion that the property covered by Exts. B1 and B2 must be from plot 3 in Ext.A6 and also from plots10, 11 etc. The appellate court came to the definite conclusion that the plaintiff in O.S. 305 of 2005 and 229 of 2007 could not lay any claim to any portion of the property in plot No.1 in Ext.A6 and therefore dismissed the appeals filed against the judgment and decrees in O.S. 229 of 2007 and O.S.305 of 2005.
10. It is against the above findings that these appeals are filed. R.S.A. 774 of 2012 is treated as the leading case for the purpose of reference to parties and facts. The substantial questions of law formulated in R.S.A.774 of 2012 R.S.A. 654/2012 & con.cases.
8read as follows:
"(A) When the title of the appellant over the counter claim schedule property is found by lower court on the strength of his documents produced in the case, can the prayers in the counter claim be dismissed for the reason that the counter claim schedule property is not a portion of the property included in the documents of respondents?
(B) Has not the appellate court abdicated its power and jurisdiction in not considering the claim of the appellant on the basis of documents produced in the case?
) Has not the lower court perversely appreciated the facts and evidence involved in the case?"
11. Shri. G.S. Reghunath, learned counsel appearing for the appellant complained that the courts below have not understood the case of the plaintiff in O.S. 305 of 2005. The plaintiff in O.S. 305 of 2005 and in O.S. 299 of 2007 had no case that the two items of property covered by Exts. B1 and R.S.A. 654/2012 & con.cases.
9B2, namely, the extent of 4.132 cents and 4.664 cents comprised in Sy. No.1704 ever formed part of the property covered by plot No.1 in Ext.A6. Learned counsel went on to point out that under the guise of taking delivery in execution of O.S. 59 of 1950, the plaintiff in O.S. 941 of 1995 was attempting to encroach and annex a portion of the property acquired by the defendant in O.S. 941 of 1995. Learned counsel placed reliance on the commission report. It was contended that with respect to 4.664 cents covered by Ext.B2 sale deed, the plaintiff in O.S. 941 of 1995 while taking delivery of the property demolished the compound wall of the property covered by Ext.B2. Learned counsel made it abundantly clear that his client did not have a case that the two properties covered by Exts.B1 and B2 ever formed part of plot No.1 in Ext.A6. However, learned counsel for the appellant pointed out that the appellant was under the bonafide impression that the property covered by Ext.B1 was on the western side of the property taken in by Ext.B2. It was on that R.S.A. 654/2012 & con.cases.
10basis that O.S. 1456 of 1994 was laid. When the error was realized, the plaintiff therein, who is the appellant herein, had understood that there was no point in proceeding with O.S.1456 of 1994. That is the reason for withdrawing O.S. 1456 of 1994.
12. Learned counsel for the appellant contended that the courts below have erred both on facts and in law in dismissing the suits without issuing a commission to identify the property. Had a commissioner been deputed and had he identified the properties, and submitted a report, according to the learned counsel, the present situation would not have arisen and the non-issuance of a commission even though prayed for had caused considerable prejudice to the appellant.
13. It cannot be disputed, according to the learned counsel, that the properties covered by Exts.A2, A3, B1 and B2 had to be identified and the boundaries had to be fixed for a proper resolution of the disputes between the parties. Learned counsel also referred to the evidence of P.W.1 the R.S.A. 654/2012 & con.cases.
11power of attorney holder of the plaintiff and contended that he was completely ignorant of the real facts of the case. However, it was pointed out that his evidence show that the plaintiff is laying claim to a narrow strip of land lying on the eastern side of the property covered by Exts.A2 and A3. Since there was rival claim in respect of the property, the court below ought to have issued a commission. It is prayed that the appeals may be allowed and the matter may be remanded to the trial court to enable the appellants to take out a commission and thereafter the trial court be directed to determine the matter afresh in the light of the commission report.
14. Smt. Sumathi Dandapani, learned Senior Counsel appearing for the respondents in these appeals pointed out that the learned counsel was shocked and surprised by the approach now made by the learned counsel for the appellant. Learned counsel for the appellant now sets up a case which was never pleaded and regarding which no R.S.A. 654/2012 & con.cases.
12evidence was also adduced. The definite case of the appellant was that the respondents while taking delivery of the property in O.S.59 of 1950 managed to obtain portions of property covered by Exts.B1 and B2 documents. This would be clear from the trial court judgment where the court dismissed O.S.299 of 2007 on the ground that it is hit by Section 47 and Order XXI Rule 101 of C.P.C. The plaintiff in O.S. 941 of 1995, according to the learned Senior Counsel had a bona fide case from the very beginning that the plaintiffs had title and are in possession of 25 cents by virtue of Exts.A2 and A3 documents which is shown as plot No.1 in Ext.A6. Learned Senior Counsel pointed out before this Court that now the appellant lays no claim to any portion of the property covered by plot No.1 in Ext.A6. Learned counsel also drew the attention of this Court to the fact that the first appellate court found title of the plaintiff in O.S. 941 of 1995 and had found that going by the description of the property in Exts. B1 and B2 it is quite evident that no portion of the property R.S.A. 654/2012 & con.cases.
13covered by the said documents was taken in any portion of plot No.1 in Ext.A6. It is contended that the plaintiff in O.S.941 of 1995 has confined his claim to plot No.1 in Ext.A6 and does not lay claim to any portions of the property covered by Exts.B1 and B2. As far as the other two suits are concerned, according to the learned counsel, the plaintiff has nothing to do with them and there is no cause of action against the plaintiff in O.S. 941 of 1995 in those two suits. Accordingly, it is contended that the non-issuance of a commission may not be fatal in this case. Learned Senior Counsel also pointed out that there were opportunities available to the appellant to take out commission in the suits. For reasons best known to him, he refrained from doing so. It was long after the suits were filed, when it reached the trial stage that the plaintiff in O.S. 229 of 2007 came forward with a petition to issue a commission. On more than one occasion the Commission reports were challenged and on none of the occasions the commission reports were found to be wrong R.S.A. 654/2012 & con.cases.
14and unacceptable as is now put forward. Now the appellant has no case that any extent of property covered by Exts. A2 and A3 documents formed part of plot No.1 in Ext.A6. If that be so, nothing more remains to be considered in the various suits. Further, the appellant herein has admitted that the plaintiffs in O.S. 941 of 1995 had taken delivery of the property in execution. Under these circumstances, the courts below were justified in disposing of the suits as they did. Learned counsel also made it explicitly clear that except plot No.1 in one of the plans appended to Ext.A6, the plaintiffs in O.S.941 of 1995 do not lay claim to any portion of the property shown in the plan appended to Ext.A6 and Exts.B1 and B2 deeds.
15. After having heard learned counsel for both sides, and having perused the records, there seems to be considerable force in the submission made by the learned Senior Counsel for the respondent, namely, Smt.Sumathi Dandapani. From the records it could be seen that all R.S.A. 654/2012 & con.cases.
15throughout, the case of the defendant in O.S.941 of 1995 was that the plaint schedule property therein actually belonged to him as per Exts.B1 and B2. The further allegation was that in execution of the final decree in O.S.59 of 1950 the plaintiffs in O.S. 941 of 1995 who are the successors in interest of one of the sharers in O.S.59 of 1950, had taken delivery of the property covered by Ext. B1. If that is found against, then certainly the plaintiffs in O.S. 941 of 1995 have to succeed and in the light of the stand taken by the learned counsel for the appellant in these appeals, the question of deciding title to properties covered by Exts.B1 and B2 does not arise for consideration, for, the appellant herein has no cause of action against the plaintiffs in the said suit. Before entering into further discussion of the issues involved in these appeals, certain facts should be noticed. Both parties traced their title to Ext.A6 document which is the final decree in O.S. 59 of 1950.
R.S.A. 654/2012 & con.cases.
16
16. It cannot be disputed that the properties involved in these suits are portions of a larger extent of 2.10 acres comprised in Sy. No. 1704 which originally belonged to Lazzer D'Cruz. He died intestate. His heirs inherited the estate, with Uzane D'Cruz retaining a life interest over the property. She leased out the property to one David D'Cruz in 1103 and while the lease was subsisting she executed a mortgage in favour of the wife of David D'cruz. Consequent on the death of Lazzer D'Cruz one of his daughters Elizabeth Gomez laid O.S. 59 of 1950.
17. The plaintiffs in O.S.941 of 1995 traced title to 25 cents through Exts. A2 and A3 documents. Ext.A2 dated 21.11.1992 related to 10.500 cents of land which formed the southern portion of plot No.1 in Ext.A6. Ext.A2 is executed by Oscar Lewis who is the first plaintiff in O.S.941 of 1995 in favour of the second plaintiff and after that assignment the second plaintiff came on record. The vendor of Ext.A2 traces title to the plots in one of the sketches which R.S.A. 654/2012 & con.cases.
17forms part of decree in O.S. 59 of 1950 which is Ext.A6 in the present case. The specific case set up is that 10.500 cents out of the 25 cents is comprised in plot No.1 in one of the sketches appended to Ext.A6 decree allotted to Polly Lewis who was the second defendant in O.S. 59 of 1950. Polly Lewis by way of sale deed No. 414/80 assigned the property thus received as plot No.1 in the plan referred to earlier to his son Oscar Lewis and grand daughter Anitha Lewis. Polly Lewis prior to the above assignment had entered into an agreement for sale with the plaintiff in O.S. 941 of 1995 for sale of 25 cents. Polly Lewis, the second plaintiff in O.S. 941 of 1995 instituted O.S. 309 of 1980 for specific performance. During the pendency of the said suit, Polly Lewis passed away. His legal heirs were brought on the party array. The suit was compromised and by two sale deeds, Ext. A2 dated 21.11.1992 and Ext. A3 dated 2.12.1995, the entire 25 cents were conveyed to the second plaintiff in O.S. 941 of 1995. This is how the second plaintiff in O.S.941 of 1985 R.S.A. 654/2012 & con.cases.
18traces her title to the suit property.
18. The defendant in O.S. 941 of 1995 claimed that he acquired 4.644 cents of land by virtue of Ext.B2 dated 6.1.1994. Ext.B2 was executed by the power of attorney of one M.M.Thomas. M.M.Thomas traces his title to Ext. A22. Ext.A22 is a deed of sale executed by Vimala for herself and on behalf of her minor daughter in favour of M.M.Thomas. The vendors under Ext.A22 trace their title to a gift deed dated 26.10.1973 executed by the husband of Vimala which is Ext.A21 document. The husband of Vimala is Sam D. Alex. The said Sam D Alex got the property by way of a gift deed dated 14.8.1973 which is produced as Ext.A20. By Ext. A20 10 cents is gifted by David who had 40 cents. It may be noted here that David was the 40th defendant in O.S.59 of 1950 and his wife was the 41st defendant. By the time E.P.149 of 1981 was filed, David was no more and his legal heirs were impleaded as judgment debtors 1 to 17. Sam David Alex who gifted his property to his wife Vimala and children was the R.S.A. 654/2012 & con.cases.
19112th judgment debtor in E.P. 149 of 1981.
19. The defendant in O.S. 941 of 1995 got 4.132 cents of property as per Ext.B1 dated 6.1.1994 executed by the power of attorney of Thomas. Thomas traced his title to document No. 190 of 1984 which is Ext.A19 dated 21.1.1984. Ext.A19 was executed by Sam Edwin and daughter of Sundraraj Ersala Christy. The vendors of Ext.A19 traces their title to settlement deed No. 3500/1983 executed by Sundraraj, father of Ersala Christy which is Ext.A18. By Ext.A18 Sundraraj assigned his rights in the property which he got under Ext.A17. Ext.A17 was executed by Magline Gomez through her power of attorney holder. The said document refers to O.S.59 of 1950 and out of 1/9th share got by her mother 1/6th share devolved on her and her siblings.
20. A perusal of the documents would clearly show that as far as Ext.B2 is concerned, the defendant in O.S. 941 of 1995 got the property from the plot allotted to David, i.e., plot No. 3 in Ext.A6. A careful perusal of Exts. A17, A18 and A19 R.S.A. 654/2012 & con.cases.
20would clearly show that the property dealt with under these documents were portions of the property covered by plots 10 and 11 of Ext.C2(e) in O.S.59 of 1950 which is produced as Ext.A6. In fact those plots were allotted to Elizabeth Gomez the first defendant in O.S. 59 of 1950. As Elizabeth Gomez died during the pendency of the suit, her legal heirs are defendants 94 to 99. As per Ext.A6 plot Nos. 10 and 11 in Ext. C2(h) and plot No.8 in Ext.C2(g) are allotted to defendants 94 to 99. The vendor under Ext.A17 is one of the legal heirs of Elizabeth Gomez.
21. Therefore, on a consideration of the respective documents, it can be seen that the second plaintiff in O.S.941 of 1995 got property allotted to the share as plot No.1 in one of the plans appended to Ext.A6 and the defendant in the said suit obtained portions of plot No.3 in one of the plans appended to Ext.A6 and plot Nos. 10, 11 and 8 in Ext.C2(h) and C2(g) plan.
R.S.A. 654/2012 & con.cases.
21
22. It is therefore abundantly clear that Exts.B1 and B2 by which the defendant in O.S. 941 of 1995 claims to have obtained 4.665 + 4.167 cents cannot form part of 25 cents in plot No.1 in one of the plans appended to Ext.A6. Even going by the boundaries of the respective properties, it can be seen that Exts.B1 and B2 cannot take in any portion of plot No.1 in one of the plans appended to Ext.A6.
23. In fact at the time of hearing, Shri.G.S. Raghunath, learned counsel appearing for the appellant in all these cases made it sufficiently clear that the appellant cannot lay any claim over any portion of plot No.1 in one of the plans appended to Ext.A6 as it exclusively belongs to the second plaintiff in O.S. 941 of 1995.
24. The complaint of the learned counsel for the appellant is that while the suit was pending before the trial court he had filed I.A. 5661 of 2009 for issuance of a commission to identify the property. According to the learned counsel, for a proper appreciation of the evidence in the case R.S.A. 654/2012 & con.cases.
22and in order to resolve the real issue between the parties, a commission report and plan were absolutely necessary. The trial court was not justified in dismissing the petition.
25. The records indicate that the entire 2.10 acres of land was outstanding on lease with David as already mentioned. The said David was allotted plot No.3 in Ext.A6 from which by Ext.B2 defendant in O.S. 941 of 1995 obtained 4.662 cents of property. Both the courts below declined relief to the defendant on the ground that there is nothing to show that plot No.3 in Ext.A6 was taken possession of in execution of the decree in O.S. 59 of 1950.
26. As rightly contended by the learned counsel for the appellant, both the courts below may not be justified in coming to the above conclusion and the approach made by the courts below do not seem to be correct. The entire 2.10 acres of land was admittedly outstanding on lease with David and consequent on his death, the lease was inherited by his legal heirs. That means that they were in actual physical R.S.A. 654/2012 & con.cases.
23possession of plot 3 and it was not necessary to take delivery of the property in execution of the decree in O.S.59 of 1950. Here one needs to notice a crucial aspect. Whenever the other sharers in O.S. 59 of 1950 tried to take possession of the property allotted to them in the final decree in the said suit, either David or his legal heirs raised claim of tenancy. Most of the claims were negatived.
27. The question that arises for consideration is whether the grievance of the appellant that no identification of the property was made and the dismissal of I.A. 5661 of 2009 was unjustified calls for interference or consideration. According to the learned counsel for the appellant, the dismissal of the commission application has considerably prejudiced him and has deprived him the opportunity of proving his case. The question is whether the act of dismissal of I.A.5661 of 2009 is fatal to the case. Before going further, one aspect needs to be mentioned here. While the hearing was going on, this Court repeatedly asked Shri. G.S. R.S.A. 654/2012 & con.cases.
24Raghunath, learned counsel appearing for the appellant whether the appellant had a case that he got assignment of any portion of plot No.1 in one of the plans appended to Ext.A6 and also whether in execution of the decree in O.S.59 of 1950 the decree holder in respect of plot No.1 in Ext.A6 took delivery of excess area which actually belonged to the appellant.
28. The reply was in the negative. The learned counsel conceded that the appellant cannot have such a case as would be clear from the document relied on by him.
29. Learned counsel appearing for the appellant then drew the attention of this Court to I.A. 2009 of 2013 in R.F.A. 654 of 2012. The appellant sought to produce registered document No.2007/1996 dated 6.6.1996 by which the appellant purchased 2.964 cents in Sy. No. 1704. It is pointed out by the learned counsel that L.A.R. No. 262 of 2003 a portion of the suit property was acquired. According to the appellant, he had entrusted the said document to his counsel R.S.A. 654/2012 & con.cases.
25for producing it in court and he bonafide believed that the document had been produced. Later on when he enquired, the learned counsel appearing for him in the trial court told him that the said document had no relevance to the issues involved in this case. Fresh certified copy was obtained and produced. According to the learned counsel, a perusal of this document will show that the property covered by Ext.B1 document is on the southern side of the property covered by Ext. B2 document and the same is necessary for a proper and just decision in the case. In these circumstances, learned counsel relied on the decisions reported in Billa Jagan Mohan Reddy v. Billa Sanjeeva Reddy ((1994) 4 SCC 659) and in Shyam Gopal Bindal v. Land Acquisition Officer (AIR 2010 SC
690) and contended that this Court may receive additional document under Order 41 Rule 27 of C.P.C.
30. Learned counsel appearing for the respondents very vehemently opposed the receipt of the documents. According to the learned counsel the litigation started in 1995 R.S.A. 654/2012 & con.cases.
26and under the guise of producing new documents, there cannot be another round of litigation. It is contended that nothing prevented the appellant from producing the documents before the trial court or at the appellate stage. According to the learned counsel, no purpose will be served by receiving the said document in evidence. All throughout including in O.S.1456 of 1994 the specific stand of the appellant herein was that Exts.B1 and B2 documents in these cases take in property in plot No.1 in one of the plans appended to Ext.A6 and that the plaintiff in O.S. 941 of 1995 was trying to trespass into his property. The said stand taken at the time of trial and before the lower appellate court continued before this Court. That is the case pleaded in the written statement in O.S.941 of 1995, in the plaint in O.S. 229 of 2007 and O.S. 305 of 2005 and when examined as D.W.1 the defendant in O.S.941 maintained the same stand. Indeed to the utter surprise of the plaintiff in O.S.941 of 1995 a totally different case is sought to be projected at this stage. It R.S.A. 654/2012 & con.cases.
27is too late in the day for the appellant to set up a new case which has no foundation in the pleadings and not covered by his own evidence.
31. As rightly pointed out by the learned counsel for the respondents, it does not appear that the document produced can be of any help to the appellant. All throughout, including in O.S. 1456 of 1994, the case of the appellant seems to be that Ext.B1 property lies on the western side of Ext.B2 property and the respondents herein are trying to trespass into his property. This is quite evident from the pleadings in Ext.A9 which is the copy of the plaint in O.S.1456 of 1994.
32. The reason given for withdrawing that suit was that the respondent herein in execution had taken delivery of Ext.B1 property and there was no purpose in continuing the said suit. That was accepted and the prayer for withdrawal was allowed with liberty to file a fresh suit. It would clearly show that the plaintiff reserved his right to proceed against R.S.A. 654/2012 & con.cases.
28the present respondents in a fresh action. The case now set up is totally different. Even in the suits from which these appeals arise, the definite stand of the appellant was that the respondents herein are trying to trespass into his property in execution of the decree in O.S.59 of 1950 and under the guise of taking delivery of property plot No.1 in one of the plans appended to Ext.A6, a portion of the property which belonged to the appellant herein was taken possession of by the respondents.
33. Now coming to the appeals, R.S.A. 769 of 2012 arises from the decree in O.S.941 of 1995 and R.S.A.774 of 2012 arises from the judgment and decree in O.S.941 of 1995. It has been found that as per the various documents, the plaintiffs in O.S. 941 of 1995 obtained pot No.1 in one of the plans appended to Ext.A6 and the claim petition by the defendants in the suit obviously cannot relate to any portion of the said plot.
R.S.A. 654/2012 & con.cases.
29
34. The appellant herein, both in O.S. 1456 of 1994 and in these suits, raised the specific complaint that under the guise of execution of the decree in O.S.59 of 1950 the second plaintiff in O.S.941 of 1995 had taken possession of his property. It is now conceded that the said claim made by the appellant is not true and it was made on a false notion. Learned counsel appearing for the appellant pointed out that the appellant cannot have such a case in the light of the documents produced by the appellant which speaks for themselves.
35. Learned counsel for the appellant went on to point out that on the basis of the documents the appellant is entitled to relief and that cannot be denied to him whatever may the pleadings in the case. Therefore, it is prayed that the appeals may be allowed and the matter may be remanded to the trial court for enabling the appellant to take out a commission to identify the property covered by Exts.A1 and A2 and B1 and B2 and decide the cases afresh on that basis. R.S.A. 654/2012 & con.cases.
30
36. This prayer made by the appellant was strongly opposed by the learned Senior Counsel for the respondents who pointed out that the litigations have been pending for the last 19 years. All throughout, the appellant had taken belligerent attitude and had taken the specific contention that the respondents are claiming property obtained by appellant as per Exts.B1 and B2 documents.
37. When it is conceded that those documents did not take in the property obtained by the respondents herein, the question of identifying the property does not arise.
38. There seems to be considerable force in the above submission. Once the appellant conceded that he has no case that the property covered by Exts.B1 and B2 take in any portion of the property in one of the plans which forms part of the decree in O.S. 59 of 1950, it is clear that he would have no grievance against the respondents in these appeals. At the risk of repetition one may notice that the appellant cannot lay claim to any portion of plot No.1 in one of the plans R.S.A. 654/2012 & con.cases.
31appended to Ext.A6 . The claim now made was also that under the guise of execution of decree in O.S.59 of 1950 the second plaintiff in O.S.941 of 1995 had taken portion of property does not appear to be correct and as already noticed, the appellant has no such case before this Court. If that be so, the appellant can have no cause of action as against the respondents. In the light of the fact that it is now conceded before this Court that no portion of Exts.B1 and B2 are taken in by plot No.1 in one of the plans appended to Ext.A6 the relief sought for as against the respondents is unfounded. If that be so, as rightly pointed out by the learned counsel for the respondents, the question of identification does not arise.
39. It has to be noticed that even in the written statement as well as in the additional written statement raising counter claim in O.S. 941 of 1995 he continued to contend that the property covered by Exts.B1 and B2 was in his possession. The definite stand of the respondent was that 4.162 cents of land was acquired by him. Property covered by R.S.A. 654/2012 & con.cases.
32Ext.B1 is situated on the southern side of the property acquired by him under Ext.B2.
40. It is also significant to notice that when examined as D.W.1, the appellant herein maintained his above stand. He did not contend that the respondents herein had taken delivery of the property other than the property they obtained under Exts.A2 and A3 which is plot No.1 in one of the sketches which forms part of Ext.A6.
41. Probably in O.S.305 of 2005 which relates to Ext.B2 property title has to be found in favour of the appellant. Even though identification would have been sought for, it has lost its relevance in view of the stand taken by the appellant herein. The appellant had no case that any portion of the property covered by Exts B1 and B2 has been sought to be taken possession of by the plaintiffs and no portion of the property covered by the documents are in the possession of the defendant in O.S.941 of 41 of 1995. There ends the matter.
R.S.A. 654/2012 & con.cases.
33
42. It is trite that the plaintiff has to succeed on his own case and he cannot succeed on the weakness of the defence case. Merely because the appellant had not sought for issuance of a commission and got the properties identified, it cannot be said that a decree in favour of the plaintiffs in O.S. 941 of 1995 need not follow.
43. Probably as far as the appellant is concerned, identification of the property covered by Exts.B1 and B2 may be necessary. But that has nothing to do with the plaintiff sin O.S. 941 of 1995 so long as the claim of the plaintiffs in the said suit as now conceded by the appellant, is that the plaintiffs in O.S.941 of 1995 are in possession of only 25 cents of property shown as plot No.1 in one of the plans appended to Ext.A6 and going by the documents, the appellant herein had no manner of right and obviously the appellant can get only that his purchaser-in-interest had.
44. Learned counsel appearing for the appellant then pointed out that the power of attorney holder of the R.S.A. 654/2012 & con.cases.
34plaintiff who was examined as P.W.1 lays claim to a narrow strip of land on the eastern side of plot No.1 in one of the plans appended to Ext.A6 and thereby threatening the right of the appellant with respect to the property covered by Ext.B2 document. It is true that in the commission report read before this Court, it is seen that the boundaries of the properties covered by Ext.B2 were seen demolished. However, in order to grant a relief to the plaintiffs in O.S. 305 of 2005 it was absolutely necessary for the parties to get the properties identified. So is the case with O.S. 229 of 2007 also. But there is nothing to show that the plaintiffs in O.S. 941 of 1995 had anything to do with the demolition of the boundaries of property covered by Ext.B2. The identification of the property covered by Exts.B1 and B2 should be an absolute necessity for the appellant herein. But that has nothing to do with the claim put forward by the respondents in these appeals since as of now there is no claim made by the appellant that any portion of his property covered by Exts.B1 R.S.A. 654/2012 & con.cases.
35and B2 has been reduced to possession by the plaintiffs in O.S.941 of 1995.
45. In the light of the above finding, it becomes unnecessary to consider I.A. 2009 of 2013 in R.S.A.654 of 2012 seeking to have additional document produced. It is also not necessary as of now and in the light of the stand taken by the appellant that for a proper adjudication of the issues involved in these suits, identification of the property covered by Exts.A1 and A2 and Exts.B1 and B2 are absolutely necessary. As long as the appellant has no case that he had obtained any portion of plot No.1 in one of the plans appended to Ext.A6 and as long as he has no case that the plaintiffs in O.S.941 of 1995 had occupied any portion of the property covered by Exts.B1 and B2 or in execution of the decree in O.S.59 of 1990 they had taken possession of any extent of property covered by Exts.B1 and B2, no claim survives for consideration.
R.S.A. 654/2012 & con.cases.
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46. However, the right of the appellant to get relief in respect of properties covered by Exts.B1 and B2 is to be left open for consideration in appropriate proceedings. But it is very evident that the claim made in O.S. 305 of 2005 and 229 of 2007 as against the respondents herein is baseless and without foundation. So also his claim that the respondents herein are attempting to trespass upon the properties covered by Exts.B1 and B2 under the guise of Exts.A1 and A2 and in execution of the decree in O.S. 59 of 1950 is patently false.
Thus, while leaving open the right of the appellant to have the properties covered by Exts.B1 and B2 identified in appropriate proceedings, these appeals are dismissed confirming the judgment and decree of the lower appellate court. It is made clear that the plaintiffs in O.S. 941 of 1995 have not taken any portion of the property covered by Exts. B1 and B2 alleged to have been obtained by the defendant in execution of the decree in O.S.59 of 1950 and also that the plaintiffs in O.S.941 of 1995 are in possession of the property R.S.A. 654/2012 & con.cases.
37obtained by them under Exts.A1 and A2 which relates to plot No.1 in one of the plans appended to Ext.A6. There will be no order as to costs in these appeals.
In the light of the decision arrived at on the questions of law mentioned in this judgment, it is unnecessary to independently consider the questions of law raised in other appeals.
P. BHAVADASAN, JUDGE sb.