Yahu vs Rajasekharan Nair

Sathish Ninan, J.

The suit for declaration of title and prohibitory injunction against trespass was dismissed by the trial court. The plaintiffs are in appeal.

The plaint schedule property is described as an extent of 45.241 cents out of 79 cents. Ext.X1=Ext.B1 Partition Deed No.1320 of 1917 was executed between one Kunjimoidu and his children. Parties Nos.10 and 11 therein were one Mammu and Rayinkutty. In the partition, they were allotted item Nos.21 and 22 therein. According to the plaintiff, Rayinkutty died as a bachelor. His property devolved on his father Kunjimoidu and his brother Mammu. Subsequently, as per Ext.A4 document No.1372 of 1936, Kunjimoidu and Mammu sold the properties of Mammu and Rayinkutty as obtained under the partition, in favour of one Athankutty. Subsequently, as per Ext.A3 Sale Deed, Athankutty conveyed the property to one Saidalavi and his brother Muhammed. Thereafter, as per Ext.A2 Release Deed No.752 of 1951, Muhammed released his rights in favour of Saidalavi. Later, on the death of Saidalavi, his legal heirs conveyed 45.241 cents (the plaint schedule) out of the total extent of 79 cents in favour of the plaintiffs as per Ext.A1 Sale Deed No.338 of 2008. On the very same date, the remaining extent of property was released by the legal heirs in favour of one among them, namely Moideen, as per document No.339 of 2008. The suit is filed on the allegation that, the defendants are claiming right over the property on the strength of sale deeds allegedly executed by the legal heirs of Mammu.

The defendants denied the title of the plaintiff. It was contended that, Ext.A4 Sale Deed claimed to have been executed by Kunjimoidu and Mammu is a fabricated one. It was claimed that the property allotted to Mammu under Ext.X1=Ext.B1 Partition Deed was conveyed to the 1st defendant by the legal heirs of Mammu.

The trial court held that the plaintiffs have failed to prove the identity of the plaint schedule property and the suit was dismissed.

Heard both sides.

The following points arise for consideration;

1) Is the finding of the trial court that the plaintiffs have failed to prove the identity of the plaint schedule property, sustainable on the materials?

2) When even as admitted by the plaintiffs, there is mistake in the survey number of the plaint schedule property, is a mere suit for declaration of title maintainable without seeking for rectification of the document under Section 26 of the Specific Relief Act, 1963?

3) Does the decree and judgment of the trial court warrant any interference?

The trial court has dismissed the suit finding failure on the part of the plaintiffs to identify the plaint schedule property. In a suit on title, the plaintiffs have to succeed on the strength of his title and not on the weakness of the defence. So also, without proper identification of the property, there could not be a decree. Whether the plaintiffs have established identity and title over the property is a question of fact.

In the case at hand it is very important to note that, the property over which both the plaintiffs and the defendants stake claim is not in dispute. The claim is over the property allotted to Mammu in Ext.X1=Ext.B1 Partition Deed. The parties are in unison over the same. Between them, there is rival claim of title. Plaintiffs claim is traced to Ext.A4 Sale Deed by Mammu and his father Kunjimodidu whereas, the defendants trace title to Ext.B6 Sale Deed by the legal heirs of Mammu. It is not in dispute that Ext.X1=Ext.B1 Partition Deed is the basic document of title relating to the property.

According to the plaintiffs, party Nos.10 and 11, namely, Mammu and Rayinkutty were allotted item Nos.21 and 22 in the partition. Since Rayinkutty died as a bachelor, his property vested with his brother Mammu and their father Kunjimodidu. The rights of Mammu as obtained under the partition and also as devolved on him from his brother Rayinkutty and also the rights obtained by the father Kunjimoidu as a legal heir of Rayinkutty, were conveyed by them to Athankutty under Ext.A4 Sale Deed. It is on successive conveyances therefrom that the plaintiffs obtained title over the property under Ext.A1. However, the case of the defendants is that the disputed property was allotted to Mammu as item No.21 in Exts.X1=B1 Partition Deed, that he was unheard of for several years, and his legal heirs executed Ext.B6 conveyance in favour of the 1st defendant.

The last page of Ext.X1 = Ext.B1 partition deed which contain the descriptions of items 20 and 21 is missing in the copies produced and also in the sub-registry. However, on the facts of the case, the same is not of significance.

The learned counsel for the respondents would point out discrepancies and also mistakes in the description of the survey number as mentioned in the plaint, its schedule and the Commissioner's report. Even according to the plaintiffs, there are mistakes in the survey numbers. However, when both the rival claimants stake claim over a specific item of property under different conveyances founded under the very same title, there could not be any dispute with regard to the identity of the property. It is a case of rival claim of title over a particular property. It is not the identity but, the title that is in dispute. The trial court has failed to take note of the above facts.

The Commissioner deputed in the suit filed reports and plans. Though in Ext.C1 report the Commissioner stated that the plaint schedule property was identified as shown by the plaintiffs, in the next report he has stated that the property is identified in the plan after having verified it with Exts.A1 to A4 documents. It is also stated that the plaint schedule property was identified based on the plaint schedule description and the description in the title deeds. The Commissioner has reported that the survey number of the property is different from that mentioned in the document. It is of relevance that, according to the plaintiffs, on the very date of execution of Ext.A1 Sale Deed in his favour by the legal heirs of Saidalavi, the remaining extent was conveyed by them in favour of one Moideen. The Commissioner reported that the property on the northern side of the plaint schedule property is in the possession of one Moideen. This also supports the identity of the property. It is also to be noted that, in Exts.A1 to A4 Sale Deeds, the plaint schedule description and also in Ext.B6 Sale Deed, the property in  question  is  described  as  “മത   ര  ള പട ഞ റപ മ ",  which  also  further  fortifies  the  identity  of the  property.  It  is  important  to  note  that  in  Ext.A1 Sale Deed in favour of the plaintiff, the portion conveyed is "മത   ര     ള പട ഞ റ ഭ ഗപ മ  ". The commissioner has identified the remaining extent on the north. It is over the southern portion so identified by the commissioner, that both parties claim title. The plaint schedule is identified as plot “ABCD” in Ext.C2 plan.

The learned Senior Counsel appearing for the respondents would argue that the title claimed by the parties is not same for the reason that, it is the plaintiffs' case that item Nos.21 and 22 were allotted jointly to Mammu and Rayinkutty, whereas going by the Partition Deed Ext.X1, they were allotted separate items, as item Nos.21 and 22. I am unable to agree with the argument for the reason that, the entire rights obtained by Mammu under Ext.X1=Ext.B1 partition was conveyed by him under Ext.A4. If there has been a conveyance as Ext.A4 by Mammu, there would be no interest remaining to be succeeded to by his legal heirs.

To sum up both parties raise rival claim title over the plot identified by the Commissioner in Ext.C2 plan; the plaintiffs under Ext.A4 executed by Mammu and the defendants under Ext.B6 Sale Deed executed by the legal heirs of Mammu. If Mammu had already executed Ext.A4 conveying the property, then no rights remained to be conveyed by the legal heirs of Mammu under Ext.B6.

The defendants have a contention that Ext.A4 is a fabricated document. However, but for a bald allegation, there is absolutely no evidence in the said regard. Ext.A4 is a registered sale deed. If the defendants chose to challenge the same, it was for them to prove their allegation. With regard to the rival title claimed by them under Ext.B6, it is their case that Mammu left to Wayanad and was unheard of for several years and on the presumption of death, his legal heirs executed Ext.B6. There is no evidence on the factual foundation enabling the legal heirs to execute Ext.B6. That apart, as noticed earlier, Mammu having executed Ext.A4 Sale Deed, no rights survived to his legal heirs for conveyance under Ext.B6.

On the discussions as above, it could only be held that the plaintiffs have established the title over the plaint schedule property.

The learned counsel for the defendants would raise a contention that the frame of the suit is bad since a prayer for rectification of the mistaken descriptions in Exts.A1 to A4 Sale Deeds with regard to survey number has not been sought for. I am unable to agree with the contention. Section 26 of the Specific Relief Act is only an enabling provision. Even in the suit on title the party could prove a description to be erroneous. In the present case, as held above, there is no scope for any dispute on the identity of the property. It is not that in every case of misdescription of a property the aggrieved has to seek for rectification of the instrument. On the facts of the present case, the suit for declaration of title is perfectly maintainable. It is also to be noticed that, there was no contention urged before the trial court objecting to the frame of the suit. Section 26 of the Specific Relief Act enables the parties to seek for amendment of the pleading to incorporate a prayer for rectification at any stage of the proceeding. At any rate, having not objected to the same, the defendants are not entitled to raise the contention now.

The plaint contains a relief of prohibitory injunction against the trespass. The plaintiff as PW1 has asserted possession over the property. None of the defendants did even mount the witness box. There is no material suggesting that defendants are in possession. In the circumstances, having found title with the plaintiffs, there is no reason why a decree should not be granted restraining trespass into the property.

Resultantly, the appeal is allowed. The decree and judgment of the trial court are set aside. The title of the plaintiffs over the plaint schedule property as identified in Ext.C2 plan as plot “ABCD” is declared. The defendants are restrained by a decree of prohibitory injunction from trespassing into the plaint scheduled property. No costs. Ext.C2 plan will form part of the decree.