High Court Kerala High Court

Gopalan Appukuttan vs Sankaran Krishnan on 16 June, 2009

Kerala High Court
Gopalan Appukuttan vs Sankaran Krishnan on 16 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA.No. 568 of 2001(A)



1. GOPALAN APPUKUTTAN
                      ...  Petitioner

                        Vs

1. SANKARAN KRISHNAN
                       ...       Respondent

                For Petitioner  :SRI.G.P.SHINOD

                For Respondent  :SRI.B.KRISHNA MANI

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :16/06/2009

 O R D E R
                       HARUN-UL-RASHID,J.
                 ---------------------------
                     S.A.NO.568 OF 2001 &
                     C.R.P.NO.652 OF 1996
                  ---------------------------
              DATED THIS THE 16TH DAY OF JUNE, 2009

                             JUDGMENT

Plaintiff in O.S.No.403/1963 on the file of the IInd

Additional Munsiff’s Court, Neyyatinkara is the appellant. The

appeal is directed against the judgment and decree in

A.S.No.125/1995 on the file of the Sub Court, Neyyattinkara.

2. The plaintiff filed the suit for partition of plaint A

schedule items 1 and 2 and redemption of C & D schedule items

on payment of mortgage money and value of improvements. A

preliminary decree was passed on 10/11/1966 declaring the

plaintiff’s right over 1 acre 41 cents in A schedule item No.1 and

15 cents in item No.2 and allowing redemption of C & D

schedule properties. In the final decree proceedings the

Commissioner submitted Ext.C1 and C2 report and plan

demarcating the property in terms of the preliminary decree.

-2-
S.A.No.568 &
C.R.P.NO.652/96

Final decree was passed accepting the report and plan, allotting

to the plaintiff plot Nos.1, 3 and 9 in item No.1 of plaint schedule

and plot No. 2 in item 2 of A schedule and redemption of C and

D schedule properties.

3. The 4th defendant claimed tenancy right under Section

4A (1) (a) of the Kerala Land Reforms Act. The tenancy claim

relates to a portion of C schedule property. The claim was

negatived by the trial court and confirmed in appeal. In

S.A.No.345/82 this Court set aside the final decree and judgment

to the extent of declining relief to the 4th respondent by not

offering the benefit under Section 4A(1)(a) of the Act in respect

of the plaint schedule property. This Court declared that the 4th

respondent is a deemed tenant entitled to the benefit of Section

4A (1)(a) of the Act and a direction was issued to the trial court

to pass a revised final decree in the light of the modification as

aforesaid. After remand, again the Commissioner was deputed.

4. The Commissioner filed Exts.C3 report and C3(a) plan

-3-
S.A.No.568 &
C.R.P.NO.652/96

stating that he could not identify the property as per Exts.D12

and D13. At the same time, the Commissioner reported that plots

C, D, D1, D2, G, H, I and J (45.554 cents) and L, H, G and F

(1.950 cents) totalling to an extent of 47.504 cents of property are

identified as the property in the possession of the 4th respondent.

The court below accepted Exts.C3 report and C3(a) plan and a

revised final decree was passed.

5. The plaintiff filed an appeal before the Appellate

Court challenging the final decree. The Appellate Court

confirmed the final decree and dismissed the appeal. The learned

counsel for the appellant contended that the trial court went

wrong in accepting Exts.C3 report and C3(a) plan prepared by

the Commissioner, that the modifications made in the final

decree and judgment based on Ext.C3 and C3(a) cannot stand

and are against the mandate of the remand order passed by this

Court. He also contended that Ext.C3 report and C3(a) plan are

prepared by the Commissioner against the directions of this Court

-4-
S.A.No.568 &
C.R.P.NO.652/96

and identification was made wrongly and not based on the

documents of title relied on by the defendant. In the judgment in

S.A.No.345/82 this Court set aside the judgment and decree

under appeal, in so far as it held that the 4th defendant is not

entitled to the benefit of Section 4A (1)(a) of the Act in respect of

C schedule property in his possession and after declaring that the

4th defendant is a deemed tenant. So, the finding that the 4th

defendant is a tenant entitled to fixity of tenure being a deemed

tenant and that he is in possession of the property claimed by

him has become final. The only question remitted for

consideration by the court below is to identify the property and to

exclude the tenanted property. After remand, the Commissioner

submitted Exts.C3 report and C3(a) plan. The Commissioner

reported that the 4th defendant is in possession of the respective

plots mentioned above having an extent of 47.504 cents. The

courts below accepted the Commissioner’s report and plan

identifying that part of the property possessed by the 4th

-5-
S.A.No.568 &
C.R.P.NO.652/96

defendant. The courts below also observed that the report

revealed that the property held by the 4th defendant is having

separate entity and the same could be identified clearly by well

defined boundaries on all sides. Therefore, the Commissioner’s

report and plan were accepted and final decree was modified

accordingly. The contentions against Ext.C3 and C3(a) were

again agitated before the Appellate Court. The Appellate Court

also came to the same conclusion and accepted the

Commissioner’s report and plan and held that the identification of

the property held by the 4th defendant is valid and proper. Since

the question of identity is a question of fact and that the

Commissioner’s report and plan are held to be valid, I do not find

any reason for taking a different view in this second appeal. The

allotment of property based on the identification made by the

Commissioner is based on the directions issued by this Court and

the fact finding court accepted the report and plan finding that the

properties are properly identified. I do not find any reason to

-6-
S.A.No.568 &
C.R.P.NO.652/96

interfere with the judgment impugned in this appeal.

In the result, the appeal fails and accordingly, it is

dismissed.

C.R.P.No.652/1996 is directed against the order in

E.P.No.348/1995 in O.S.No.403/1963. In view of the dismissal

of S.A.No.568/2001, the execution petition can be proceeded

with in accordance with law.

C.R.P. is disposed of as above. No order as to costs.

HARUN-UL-RASHID,
Judge.

kcv.

-7-
S.A.No.568 &
C.R.P.NO.652/96

HARUN-UL-RASHID,J.

————————

S.A.NO.568 OF 2001
And
C.R.P.No.652 of 1996

————————

JUDGMENT

16th June, 2009