IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 228 of 2008()
1. P. AYYAPPAN NAIR, S/O.PACHANPILLAI,
... Petitioner
2. S. SHEELAJA,
Vs
1. P. MADHAVAN PILLAI,
... Respondent
2. AMBIKAKUMARI,
3. VASUDEVAN PILLAI,
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SRI.SIBY MATHEW
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :21/05/2010
O R D E R
HARUN-UL-RASHID, J.
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FA.O.No.228 Of 2008
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Dated this the 21st day of May, 2010.
J U D G M E N T
Plaintiffs in O.S.No.566 of 1997 on the file of the Munsiff
Court, Attingal, are the appellants. The suit was originally filed
for perpetual injunction restraining the defendants from
demolishing the old boundaries of plaint schedule properties,
trespassing over the same, creating any new pathway over plaint
schedule property or committing any waste in the property. The
trial court decreed the suit, plaintiffs’ title and possession of the
plaint schedule property was declared and a permanent
prohibitory injunction was passed whereby the defendants are
restrained from trespassing into the plaint schedule property or
commit any waste or doing any act which may cause obstruction
to the plaintiffs’ peaceful possession and enjoyment of the
property. In the appeal preferred by the defendants, by
judgment dated 31.7.2008, the lower appellate court allowed the
appeal, remanded the matter, directing the trial court to dispose
of the suit afresh untrammelled by the observations made by the
appellate court judgment. Being aggrieved by the order of
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remand the plaintiffs have preferred the appeal. Parties are
hereinafter referred to as the plaintiffs and defendants as arrayed
in the suit.
2. The dispute is in respect of 9 cents of land lying on the
southern side of the plaint schedule property having an extent of
1 acre 39 cents. Both the plaintiffs and defendants are claiming
title and possession over the disputed portion of land. The
plaintiffs and defendants are close relatives. The mother of first
plaintiff and the first defendant namely, Bhargavi Amma had 2
acres and 8= cents in survey No.2516/A in Melthonnakkal
Vilage. As per partition deed No.4535/1952, out of 2 acres and
8= cents mentioned above, 1 acre 37 cents on the east and 2
cents on the southern side of remaining 71= cents was allotted
to the first plaintiff and mother jointly as A schedule in the deed,
marked as Ext.A1 in the case, and the remaining 69= cents was
allotted to the first plaintiff’s brother Gopala Pillai. At the time of
execution of Ext.A1 partition deed the first plaintiff was a minor
having 7 years old. Subsequently, their mother executed Ext.B2
sale deed No.2227/1953 in favour of the first defendant
Madhavan Pillai, in respect of 7 cents on the southern side of 1
F.A.O.No.228 Of 2008
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acre 37 cents and 2 cents on the southern side of 71= cents.
Thus, the first defendant obtained 9 cents as per Ext.B2 sale
deed. In the year 1974, the mother executed Ext.B1 settlement
deed conveying her one half right in 1 acre 30 cents in favour of
the first plaintiff. Thus, the first plaintiff became absolute owner
of 1 acre 30 cents. The extent covered by the said settlement
deed is the area excluding the 9 cents sold in favour of the first
defendant. In the year 1997, the first defendant sold the
disputed 9 cents to his daughter, the second defendant as per
Ext.B7 sale deed. The second defendant claim title and
possession over the disputed 9 cents. The trial court, after a
detailed consideration of the materials produced before the court,
held that under Ext.B1, the property conveyed to the first plaintiff
is 1 acre 30 cents excluding the 9 cents on the southern side
which was covered as per Ext.B2 sale deed. It was further
observed that, it is clear from Ext.B2 sale deed that the first
plaintiff had got information about Ext.B2 sale deed in the year
1974 and the first plaintiff had not chosen to challenge Ext.B2 till
now. The trial court also observed that the first plaintiff as PW1
admitted that he attained majority in he year 1964, that he was
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a major at the time of execution of Ext.B1 settlement deed and
that if he had no knowledge about Ext.B2 sale deed he could
have filed a suit for a declaration in respect of Ext.B2 sale deed
and further held that the facts and circumstances of the case
clearly shows that the first plaintiff has knowledge about Ext.B2
sale deed from 1974 onwards. The trial court also examined the
question as to who is in possession of the disputed 9 cents. The
trial court held that the defendants has not obtained possession
of 9 cents as per Ext.B2 sale deed and the same was in
possession of the plaintiff from 1953 onwards and further held
that the title obtained by the first defendant as per Ext.B2 sale
deed has been lost by the continuous and uninterrupted
possession of the plaintiffs adverse to the defendants and that
the plaintiffs have perfected their title over the property by
adverse possession and limitation. The trial court on the basis of
the said findings decreed the suit declaring the plaintiffs’ title and
possession over the plaint schedule property and also issued
permanent prohibitory injunction.
3. In the appeal preferred by the defendants the lower
appellate court re-appreciated the evidence. During the
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pendency of the appeal the appellants produced mortgage deed
No.2057 dated 10.10.1973 and “purathezhuthu” executed by the
first defendant in favour of one Sarasamma. The said document
was produced along with I.A.No.874 of 2008 requesting the
appellate court to receive in evidence the mortgage deed in
exercise of the power under Order XLI Rule 27 of the Code of
Civil Procedure. From the additional documents produced before
the appellate court, it can be seen that in the year 1973, the
disputed 9 cents was mortgaged by the first defendant to one
Sarasamma which has been redeemed in the year 1983 by
executing a “purathezhuthu”. Appellants contended that the
additional documents will have an important bearing on the
merits of the case and therefore prayed to accept the additional
documents in evidence. The respondents/plaintiffs vehemently
opposed the admission of the additional documents. A detailed
objection has also been filed. According to the learned Judge the
additional documents are vital documents as far as the case is
concerned, being a mortgage deed in respect of the disputed 9
cents executed in the year 1973. The appellate court also found
that the “purathezhuthu” which was also produced along with the
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mortgage deed would go to show that the mortgage was
redeemed after ten years, in the year 1983. In this context, the
lower appellate court took the view that a remand is necessary
for affording an opportunity to the parties to establish whether
there is transfer of possession of the property based on the
mortgage deed and that there are sufficient grounds to allow
I.A.No.874 of 2008 and held that a remand is inevitable.
4. The lower appellate court also observed that the
records would show that on 19.6.2001 the lower court raised six
issues whereas the judgment reveals that those were not the
issues considered by the lower court. The appellate court
observed that the issue as to the adverse possession and
limitation has not been specifically framed. In such
circumstances also, the court also held that issues are not
properly framed and not considered.
5. Learned counsel appearing for the plaintiffs submitted
that framing of additional issues does not arise since the issue to
be decided is as to whether the plaintiffs have got title and
possession over the plaint schedule property. The trial court can
consider the question of framing additional issues only after
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hearing both sides and after considering the objections raised by
the plaintiffs. I do not find any reason to interfere with the
conclusions and observations entered by the lower appellate
court. The appellate court directed the trial court to dispose of
the matter afresh as expeditiously as possible, untrammelled by
any of the observations made by the appellate judgment. In the
interest of justice, this Court is of the view that the case can be
decided afresh within a time frame fixed by this Court. The trial
court shall dispose of the suit within a period of six months from
the date of receipt of a copy of this judgment. The date of
appearance of the parties is fixed as 22.6.2010. The records of
the case shall be transmitted immediately to the trial court,
forthwith.
In the result, the appeal fails and accordingly, dismissed.
There will be no order as to costs.
HARUN-UL-RASHID,
Judge.
bkn/-