PURAKKARAYIL VARKEY KURIAN Vs. P.J. BABU

JUDGEMENT

(1.) ORIGINAL plaintiff and the 1st appellant are direct brothers and claimed to have acquired certain properties on lease. Later, they obtained purchase certificates with respect to the properties in their respective possession. According to the original plaintiff, the suit property (marked by the Advocate Commissioner in Exts.C4 and C5, plans as plot -P5) forms part of property over which he obtained tenancy right and purchased jenm right as per Ext.A1, purchase certificate in S.M.C. No. 3323 of 1975. It is his case that he had permitted his brother, the 1st appellant to occupy about 11 cents on the southwest of plot -P5 in Exts.C4 and C5, plans. While so, in the year, 1996 1st appellant is said to have trespassed into plot -P5 in Exts.C4 and C5, plans (described in the plaint as B schedule property). Hence original plaintiff wanted recovery of possession of plaint B schedule. Plaint A schedule is 11.38 Acres which according to the original plaintiff is in his possession and enjoyment. It is his further case that plaint B schedule forms part of plaint A schedule. Defendants denied that they trespassed into plaint B schedule (plot -P5 in Exts.C4 and C5, plans). They claimed that plaint B schedule is part of the property over which 1st appellant got purchase certificate (the document is not produced in court). Trial court on the evidence found in favour RSA No. 227/2012 2 of plea raised by the original plaintiff and granted a decree. Appellants challenged that judgment and decree in the Sub Court, Vadakara in A.S. No. 3 of 2008. Pending that appeal, original plaintiff died and his legal representatives were impleaded as additional respondents in that appeal. Learned Sub Judge confirmed judgment and decree of the trial court. Hence, this Second Appeal urging the substantial questions of law raised in the memorandum of appeal.

(2.) NOTICE before admission was issued to the respondents/additional plaintiffs who appeared through counsel.

(3.) IN response, learned counsel for respondents contends that though the burden of proof when recovery of possession is sought on title is on the original plaintiff, it is not as if evidence let in by the appellants cannot be looked into. It is also contended by the learned counsel that it is by virtue of the purchase certificate in favour of 1st appellant that a claim of title and possession is made as regards the disputed property, plot -P5 in Exts.C4 and C5 but that RSA No. 227/2012 4 purchase certificate is not produced in court. Learned counsel has placed reliance on the decision in Narayanan v. Kumaran and Others (( : 2004) 4 SCC 26) and in particular, the observations in paragraph 26. It is also contended by the learned counsel that Ext.C3, report submitted by the Advocate Commissioner would show that though the purchase certificate in favour of 1st appellant was not produced in court, it was produced before the Advocate Commissioner for measurement and on measurement it was found that property covered by the said purchase certificate is towards north of plot -P in Exts.C4 and C5, plans marked in pencil shade (shown as 5.85 Acres). It is pointed out by the learned counsel that when confronted with the above, 1st appellant has varied his stand that the property covered by the purchase certificate in his favour is situated on the south and north, obviously to cover up the defect in title claimed by him as regards plot -P5 in Exts.C4 and C5.