Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 25TH DAY OF JULY 2013 3RD SRAVANA, 1935 RSA.No. 451 of 2013 () ----------------------- AS 33/2012 of SUB COURT, NEYYATTINKARA OS 126/2007 of ADDL. MUNSIFF COURT - II, NEYYATTINKARA -------------- APPELLANT(S)/APPELLANTS 1 TO 2.& R7/DEFENDANTS :- ---------------------------------------------------- 1. JOSEPH DEVOOS, AGED 4 YEARS, ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
2. SISILY, AGED 7 YEARS, RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
3. SEENGAYYAN VINCENT, AGED ABOUT 4 YEARS, RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
4. ANTONY DAS, AGED ABOUT 4 YEARS, RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
5. ALEXANDER, AGED ABOUT 4 YEARS, S/O.SARKARIYAS RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
6. YANTHRIKKAMMA THEYORIS, AGED 4 YEARS, RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
7. PANIYAMMA, AGED ABOUT 6 YEARS, RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
8. JOREES THWANINDH, AGED ABOUT 7 YEARS, RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
9. AMBI CHANDRAN, AGED ABOUT 5 YEARS, RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK. RSA.No. 451 o”
10. SILUVA, AGED ABOUT 7 YRS., RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
11. YAGAPPAN SABARIYAKAR, AGED ABOUT 4 YRS., RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
12. KARIOSE NASRETH, AGED ABOUT 4 YRS., RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
13. YAGAPPAN SIMON, AGED 4 YRS., RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
14. YON POSKO, AGED 4 YRS., RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
15. FRANCIS SOOSA PILLAI, AGED ABOUT 4 YEARS, RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
16. SABARIAL PICKAKANAKAM, AGED ABOUT 4 YRS., RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
17. RAMMEES SURESH, AGED ABOUT 3 YRS., S/O.SARKARIYAS RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
18. RATHINAM GABRI, AGED 3 YRS., RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
19. VIRITH SELESTEEN, AGED ABOUT 3 YRS., RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
20. SAHAYAM YAGAPPAN, AGED ABOUT 7 YRS., RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
21. EALIAS YON POSKO, AGED ABOUT 5 YRS., RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
22. STANTUS, S/O.ANDREWS, AGED ABOUT 3 YRS., RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM, THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK. RSA.No. 451 o”
23. GEORGE JOHNY, AGED ABOUT 2 YRS., RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK.
24. PUSHPA LEELI, AGED ABOUT 4 YRS., WO.RAMMEES, RESIDING AT ELIKKOLAVILAKOM PURAYIDOM, POOVAR DESOM, THIRUPURAM DESOM, THIRUVANANTHAPURAM TALUK. BY ADVS.SMT.MINI GANGADHARAN SRI.N.C.SAJUNAM RESPONDENT(S)/RESPONDENTS/PLAINTIFFS :- ----------------------------------------- 1. SOOSAMMA, D/O.MARIYA ROSE, AGED 6 YRS., RESIDING AT PUTHUVAL PURAYIDOM KALLUMUKKU, PUTHIYATHURA KARUMKULAM DESOM KARUMKULAM VILLAGE, THIRUVANANTHAPURAM TALUK”
001.
2. SALOMI, AGED 3 YRS.,D/O.SOOSAMMA, RESIDING AT PUTHUVAL PURAYIDOM, KALLUMUKKU, PUTHIYATHURA KARUMKULAM DESOM, KARUMKULAM VILLAGE THIRUVANANTHAPURAM TALUK”
001.
3. JANOVA, 36 YRS., D/O.SOOSAMMA, RESIDING AT PUTHUVAL PURAYIDOM KALLUMUKKU, PUTHIYATHURA KARUMKULAM DESOM KARUMKULAM VILLAGE, THIRUVANANTHAPURAM TALUK”
001.
4. KATHERINE, 33 YRS., D/O.SOOSAMMA, RESIDING AT PUTHUVAL PURAYIDOM KALLUMUKKU, PUTHIYATHURA KARUMKULAM DESOM KARUMKULAM VILLAGE, THIRUVANANTHAPURAM TALUK”
001.
5. MARIYA VICTOR, AGED 2 YRS.,S/O.XAVIER, RESIDING AT PUTHUVAL PURAYIDOM, KALLUMUKKU PUTHIYATHURA KARUMKULAM DESOM, KARUMKULAM VILLAGE THIRUVANANTHAPURAM TALUK”
001.
6. MARIYA ADOLPH, 24 YRS., S/O.XAVIER, RESIDING AT PUTHUVAL PURAYIDOM, KALLUMUKKU PUTHIYATHURA KARUMKULAM DESOM, KARUMKULAM VILLAGE THIRUVANANTHAPURAM TALUK”
001. BY ADV. SRI.R.T.PRADEEP THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt N.K.BALAKRISHNAN, J.
-------------------------------- R.S.A. No.451 of 2013 --------------------------------- Dated this the 25th day of July 2013 JUDGMENT
Defendants are the appellants. The plaintiffs filed a suit for declaration of the plaintiffs' right over 'A' schedule property measuring 96 cents and for removing the sheds which were unauthorisedly constructed in 'C' schedule property which is covered by the decree in O.S.No.83/1975 and also for a prohibitory injunction to restrain the defendants from 'A' schedule property. Originally 'A' schedule property is 96 cents of land comprised in R.S.Nos.274/24 and 274/25 of which the old Survey Number was 181/4. The description column in the schedule shows that out of the 96 cents of land 59 cents and another 2.771 cents (thus the total extent is 61.771 cents) and the remaining extent making the total of 96 cents is the 'A' schedule property. In the 'B' schedule three buildings having numbers 7/540, 7/541 and 7/542 are mentioned and R.S.A. No.451 of 2013 -:
2. :- they are stated to be the buildings held and possessed by the plaintiffs. In the 'C' schedule 24 thatched huts are shown which are stated to be occupied by defendants 1 to 24. Subsequently 'D' schedule was incorporated by way of amendment which is to the effect that out of 96 cents mentioned in 'A' schedule, 34.498 cents is the sea puramboke and excluding the aforesaid 34.498 cents, the property measuring 61.502 cents in respect of which the right was declared as per the decree in O.S.No.665/95 and the trees therein. But no separate relief is seen sought in respect of 'D' schedule property.
2. The first plaintiff (PW1) contends that she was granted 'pattayam' in respect of 59 cents of land in Survey No.274/24 and that the remaining 37 cents of land is sea- coast puramboke lying adjacent to 59 cents and thus she is in possession of a total extent of 96 cents. In the relief portion in the suit, no relief is sought in respect of 'B' schedule and 'D' schedule properties. In the course of the argument, learned counsel for the appellants submits that three buildings referred to in the 'B' schedule are in the R.S.A. No.451 of 2013 -:
3. :- possession of the plaintiffs. There is no dispute regarding 'B' schedule buildings. The plaintiffs contended that the defendants have absolutely no right over the plaint schedule property and so, a decree as sought for has to be granted against them.
3. The defendants resisted the suit contending that the plaintiffs have absolutely no right over the disputed property measuring 37 cents and as such the plaintiffs are not entitled to get any relief. It is further contended that the property is a sea-coast puramboke and that the defendants have been in possession of the said property.
4. Before the trial court PW1 and PW2 were examined and Exts.A1 to A14 were marked. The Commissioner's report and plan were marked as Exts.C1 and C1(a). No evidence was adduced on the side of the defendants.
5. Learned Munsiff found that the plaintiffs have "established a prima facie case against the defendants". It was also held that the plaintiffs have proved their title over 59 cents and possessory right over 37 cents of plaint R.S.A. No.451 of 2013 -:
4. :- schedule property and thus the suit was decreed. The lower appellate court concurred with the finding entered by the trial court and appeal was dismissed.
6. Learned counsel for the appellants would submit that the courts below have not even gone through the schedule to the plaint or the earlier decree and judgment and that there are ever so many factual mistakes in the judgments rendered by both courts. It is also pointed out that even now in the plaint description and in the schedule to the decree in the earlier suit there are ever so many mistakes and that all these aspects were disregarded by the courts below presumably because the courts below did not advert to the incorrectness and mistakes in the schedule to the plaint and decree in this suit as well as in the earlier suit.
7. The following substantial questions of law are re- framed :- (i) Whether the courts below are right in granting a declaratory decree and injunction against the appellants when the Government has not been R.S.A. No.451 of 2013 -:
5. :- made a party to the suit and also when serious objection was raised that the disputed property takes in the government puramboke land as well (ii) As a petition to set aside exparte decree in O.S.No.665/1995 was pending, are the courts below justified in granting a decree again allegedly in respect of the very same property against the appellants (iii) If the plaintiffs' claim, that there is already a decree in respect of the very same property against some of the defendants is correct, can there be a second suit against the very same defendants in respect of the property covered by the earlier decree (iv) As there are no physical boundaries, because the properties are situated on the sea coast, and when the report and plan submitted by the Commissioner do not justify the plaintiffs' claim, are the courts below correct in granting a decree (v) When the defendants are in possession of the property by constructing huts in the sea puramboke/sea coast, do not the judgments rendered by the courts below suffer from factual mistakes which are not capable of correction 8. Ext.A6 is the plaint in O.S.No.665/95. Originally 'A' schedule property was shown therein as the plot R.S.A. No.451 of 2013 -:
6. :- measuring 66 cents comprised in Survey No.184/1. It was subsequently amended as a plot measuring 23 Ares and 80 Sq.m. which would be corresponding to 59 cents comprised in Survey No.181/4. Originally 'B' schedule property was shown as 30 cents of land comprised in R.S.No.274/25. It was subsequently amended as the property measuring 2 cents and 717 Sq.links lying to the south of 'A' schedule property shown therein. The 'C' schedule thereto was originally described as 14 huts, that was subsequently amended as 5 huts. But it is curious to note that the decree therein (Ext.A5) was granted in respect of 'A' and 'B' schedule properties declaring plaintiffs' right over the same and to remove the 'C' schedule huts. But in Ext.A5 decree the schedule of property is shown as 181/4 (R.S.No.274/25) measuring 66 cents and 'B' schedule was shown as 2.717 cents. A plan is seen appended to that decree. That plan shows the position of 6 huts, though in the decree only 5 huts are mentioned. Any way, 'A' and 'B' schedule properties were demarcated therein as 'ABCDEFGHA'. Since that decree has become final it is not R.S.A. No.451 of 2013 -:
7. :- necessary to state much about the same. But, at the same time discrepancy in the schedule to the plaint and schedule to the decree may have some relevance in view of the fact that the extent of 'A' schedule property is only 23 Ares and 80 Sq.m. which is equivalent to 59 cents and not 66 cents. In fact it can only be 59 cents because that is the property covered by Ext.A11, which is the document of title. Ext.A11 patta dated 4.5.1973 was in respect of old Survey No.181/4. The property was described as 'Kadaltheeram puramboke'. There is no mention of any tree but it was stated that the property was encroached upon by constructing a house. Ext.A12 is a notice connected to Ext.A11.
9. Going by the plaint averments and the case advanced by the plaintiffs it is clear that they have got title to the property only for 59 cents covered by Ext.A11. But, at the same time as per Ext.A5 decree the plaintiffs' right over 59 cents and another extent of 2.717 cents were declared. In the schedule to the decree (Ext.A5) the extent shown as 66 cents is factually incorrect evidently because this schedule was totally deleted from the schedule of plaint R.S.A. No.451 of 2013 -:
8. :- after the amendment. the amended schedule so far as it relates to 'A' schedule was not incorporated in the decree. The learned Munsiff omitted to take note of these aspects. Therefore, what is clear from Ext.A5 decree is that the plaintiffs have title only to an extent of 59 cents plus 2.717 cents; that is (61.717 cents). That alone was declared and that was the only decree which was granted as per Ext.A5. That property was demarcated in the plan (Ext.C1(a)) therein which was attached to Ext.A5 decree.
10. Ext.C1(a) is the plan produced by the Commissioner in this case. In Ext.C1(a), the Commissioner has stated that the plaint schedule property is measuring a total extent of 96 cents, which was inclusive of 61.717 cents covered by Ext.A5 decree. 'B' schedule as stated earlier refers to the three buildings. 'C' schedule is the portion where the huts constructed by the defendants are situated. The plan (Ext.C1(a)) is helpful to identify the plot. The plot 'ABCDEFGHIJK' is the plot covered by Ext.A5 decree. The plot lying immediate to the south of that property is the disputed property. That plot is demarcated as 'JLMHIJ'. In R.S.A. No.451 of 2013 -:
9. :- that plot 12 huts were seen to be existing. Learned counsel for the respondents submits that some of the huts were removed since it is a sea puramboke area. The defendants and their men are putting up sheds and removing as and when they like and again they are putting up sheds, it is argued. However, those are not matters which are so germane for consideration in this case.
11. The plaintiffs contend that they have got possessory right over the plot 'JLMHIJ' shown in Ext.C1(a), the measurement of which as per Ext.C1(a) is 34 cents and 498 Sq.links. There is no dispute regarding the identity of that part of the land and that was accepted by the courts below. Hence, it can be found that the disputed property is 'JLMHIJ' where the huts belonging to the defendants are situated. There is only the oral testimony of PW1, which shows that she has been in possession of the sea-coast puramboke marked as 'JLMHIJ' and that the defendants have no right over the same. It is true that no evidence was adduced on the side of the defendants. But the learned counsel for the defendants/appellants submits that so many R.S.A. No.451 of 2013 -:
10. :- documents were produced by them before the court below. But no such document was marked, no oral evidence was adduced on the side of the defendants. But that does not mean that the plaintiffs are entitled to get a decree for ejectment of the defendants from the suit property.
12. Learned counsel for the plaintiffs relies upon the decision of the Supreme Court in Rame Gowda (dead) by LRs. v. M.Varadappa Naidu (dead) by LRs. and Another [(2004) 1 SCC 769.in support of his submission that if the party is in settled possession of the property, he can maintain an action against the trespasser. It was held in that decision : "It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and R.S.A. No.451 of 2013 -:
11. :- settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner." But, so far as the case on hand is concerned, it is important to note that in Ext.A6 plaint and Ext.A5 decree, the property mentioned therein is stated to be situated to the north of sea. The plaintiffs had no case in Ext.A5 suit that they were in possession of any extent of land lying to the south of the property mentioned in that suit. Simply saying that the southern boundary is Arabian Sea, one cannot claim any extent of land. When the plaintiffs assert that they have R.S.A. No.451 of 2013 -:
12. :- been in possession of the property lying to the south of the property covered by Ext.A5 decree, then certainly the southern boundary in Exts.A6 and A5 should have been shown as the property in their possession. The absence of such a plea itself will demolish the case of the plaintiffs that they were in possession of that property also.
13. It is important to note that the property is actually sea puramboke and that no improvements were there in the disputed property. There used to be tide variation and sea erosion. The width of coastal land would get increased or reduced due to such reasons. But that does not mean that one can possess land up to the Arabian Sea. There was also no case for the plaintiffs in the earlier suit that, besides the patta land they were having some more land on the southern side or that the said land (the patta land and the sea-puramboke) was lying contiguously. It is also important to note that even as per Ext.A11 patta, the plaintiffs were granted only 59 cents. Further, as per Ext.A5 decree, the appellants' right was declared showing the extent as 61.717 cents only. In the earlier suit, there was no case for R.S.A. No.451 of 2013 -:
13. :- them that the southern boundary property was in their possession. Ext.A1 is the copy of the judgment in O.S.No.83/1975. That was filed against two other defendants who are not made parties to this suit. Four boundaries are mentioned in that schedule also. That suit was pertaining to 59 cents comprised in Survey No.181/4 which is actually the property covered by Ext.A11. There, the 'sea' was shown as southern boundary. None of the boundaries therein is shown to be the property in possession of the plaintiffs therein who are the respondents herein. There also, the property was shown as sea-coast puramboke. Therefore, the contention that the plaintiffs were in possession of some more extent of land lying to the south or west of the patta land covered by Ext.A11 cannot be sustained.
14. It is also worthwhile to note that in this suit also the decree is sought in respect of 'A' schedule property shown as 66 cents. In the description portion, in fact, the extent is shown as 96 cents. The courts below did not even care to go through the fact that the aforesaid 96 cents of R.S.A. No.451 of 2013 -:
14. :- land or 66 cents as shown in another column takes in the property covered by Ext.A5 decree. At any rate, there can be no dispute regarding the fact that 96 cents shown in the plaint and in the decree passed by the courts below takes in the property covered by Ext.A5 decree. No reason has been stated by the courts below why in respect of the very same property a second decree was passed and how such decree can be passed. The courts below also failed to take note of the fact that the decree granted earlier was in respect of the very same property and that some of the defendants in this case were parties to the earlier decree also. If so, how can there be a second suit against the very same defendants. If the decree was violated, the remedy of the plaintiff was to take action under Order XXI Rule 32 of CPC. These factors were not considered at all by the courts below. Hence, on this ground also, the impugned decree and judgment cannot be sustained.
15. One contention raised by the appellants before the courts below was that the suit is barred by res judicata in view of the decision in the earlier suit. The principle of R.S.A. No.451 of 2013 -:
15. :- res judicata does not apply in this case. The other contention that is now urged by the appellants is that the suit is barred under Order II Rule 2 of CPC. No specific plea was raised before the court below with regard to the same. Not only that the respondents/plaintiffs contend that the present suit is founded on a new cause of action. Therefore, the contention that the suit is barred under Order II Rule 2 of CPC also cannot be sustained. But at the same time there is one aspect which cannot be lost sight of. The case of the plaintiffs in the earlier suit was that the property obtained as per patta and a small extent of land measuring 2.717 cents were trespassed upon by persons putting up huts etc. No such plea was raised by the plaintiff in that suit that she was in possession of the land adjoining to the south of the plaint schedule property therein. The present contention advanced by the plaintiffs is that the patta land and the adjacent land lying to the south were enjoyed by her as a contiguous plot. If so, it eludes comprehension why nothing was mentioned about this property in the earlier suit and why this property was not R.S.A. No.451 of 2013 -:
16. :- scheduled in the earlier suit. The contention that this property was not trespassed upon by the defendants therein cannot thus be accepted at all. If there was an attempt to trespass into the plaint schedule property in that suit, then certainly, if the plea now raised by the plaintiffs is to be accepted, the trespass must be into the present suit property as well. Therefore, that also would loom large in this case and would run counter to the plea raised by the plaintiffs. It is in that context the non-mention of the plaint schedule property as the southern boundary in the possession of the plaintiffs in the earlier suit assumes much relevance. These factors were also not considered by the courts below.
16. As has been stated earlier, the courts below did not verify what actual is the property in respect of which the decree was granted in Ext.A5. The fact that the plaint in Ext.A6 was amended and that the decree was only in respect of 61.717 cents was omitted to be taken note of. Except the oral vibration of PW1 that she was in possession of the property lying to the south of the property covered by R.S.A. No.451 of 2013 -:
17. :- Ext.A5 there was absolutely no other evidence in support of her contention. Though the defendants did not mount the witness box, the evidence given by PW1 should not have persuaded the courts below to hold that she was in possession of the property, totally ignoring the factual mistake in the schedule in the previous suit and also in the present suit. There was no case for PW1 that she was in possession of any extent of land to the south or west of the property mentioned in Ext.A5 suit. It is not known on what basis the courts below held that 37 cents of land was in possession of the plaintiffs from 1973 onwards. It was not stated in any of the documents that southern or western boundary of the property was held/possessed by the plaintiffs. It is also not known how the courts below could hold that the plaintiffs have proved the possessory right over 37 cents of land. Even the extent of the property mentioned by the courts below does not reconcile with the extent of the land actually shown in Exts.C1 and C1(a) in this case (which forms part of the decree in Ext.A5). The amendment to the plaint in Ext.A5 suit was totally omitted R.S.A. No.451 of 2013 -:
18. :- to be taken note of by the courts below. It is also pertinent to note that the defendants are in possession of the huts situated in the disputed property. There is no cogent evidence as to when those huts were constructed. True that the defendants did not mount the witness box. But still, merely because the first plaintiff made an oral testimony that she was in possession of the suit property, the courts below were not justified in granting a decree as sought for in respect of the suit property. That apart, the plaintiffs contend that they assert right over the Government puramboke land (sea-coast puramboke). The Government has not been made a party to the suit. It is true that if the plaintiffs are proved to be in settled possession of the property for quite a long time, such a possessory right has to be protected against encroachers/ trespassers. But here, the property is an open sea-puramboke where the defendants put up huts for their residential purpose. There is no acceptable evidence regarding possession asserted by the plaintiffs. Hence, the decree granted by the courts below cannot be sustained. However, an opportunity has to R.S.A. No.451 of 2013 -:
19. :- be given to the plaintiffs and to the defendants to adduce further evidence in the matter. In the result, this RSA is allowed. The decree and judgment passed by the courts below are set aside and the matter is remanded to the trial court for fresh disposal. The parties are directed to appear before the trial court on 19.8.2013. Both parties are given opportunity to adduce further evidence in the matter. Sd/- N.K.BALAKRISHNAN, JUDGE. //True Copy// P.A. to Judge Jvt