SHAJEEDHA BEEVI Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is originated from a judgment passed on 27/6/2005 by Ist Additional Sub Court, Thiruvananthapuram (for short 'the trial court') in O.S. No.41 of 2000. Appellant is the additional 6th plaintiff, who is the daughter of the original plaintiff.

(2.) The trial court had dismissed the suit on the basis of a finding arrived at by it which is incorporated in paragraph 13 of the impugned judgment, extracted hereunder:

(3.) It is contended by Sri.V.Suresh, the learned counsel for the appellant that the finding of the trial court, which formed the basis for dismissal of the suit was the outcome of an incorrect appreciation of the evidence on it's record. According to him, Ext.A1 tax receipt with reference to plaint schedule property was produced before the trial court by the original plaintiff, the father of the appellant. According to him, the issue as to whether the property through which the 1st respondent has constructed a public road belongs to the original plaintiff, though vital in the Suit, was not framed by the trial court and therefore was not adjudicated. According to him, from the specific contention of the 1st respondent in the written statement filed in the suit that the original plaintiff has consented for acquisition of the plaint schedule property for public purpose itself, it can be drawn that he has title over the property and was its owner at the relevant time of acquisition. According to him, the trial court has erroneously drawn adverse inference against the plaintiffs and it ought not to have done so, when the 1st respondent himself failed to controvert the oral evidence tendered by PWs 1 to 4 to establish title of the original plaintiff. According to him, the contention of the original plaintiff that the acquisition was without complying with the procedures as contemplated under the Land Acquisition Act, 1894 (for short 'the Act') is strengthened by the contention taken by the 1st respondent in the written statement that the original plaintiff has consented for acquisition of the land for a public purpose. The learned counsel has also pointed out that the trial court is highly unjustified in holding that the original plaintiff is not entitled to sue, since the suit filed by some other person based on the same survey number stands dismissed. The finding of the trial court that there was no necessity to obtain consent from the original plaintiff is erroneous. The trial court appears to have gone beyond the pleadings of the parties and arrived at the finding as above based on surmises and conjectures. Lastly and finally it was contended by the learned counsel that the original plaintiff died during the pendency of the suit itself and his wife and children were brought on record as additional plaintiffs. Since the posting was for pre-trial steps even prior to the death of the original plaintiff, the suit was listed for trial immediately after bringing the legal heirs on record by way of impleadment. According to the learned counsel, by doing so, the trial court had also denied the additional plaintiffs with sufficient opportunity to produce documents to establish the suit claim effectively.