IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 620 of 1998()
1. DEVANIGOTHI AMINABI
... Petitioner
Vs
1. DEVANIGOTHI AYISHA
... Respondent
For Petitioner :SRI.P.S.USUPH
For Respondent :SRI.P.K.ABOOBACKER
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :14/10/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. NO. 620 OF 1998
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Dated this the 14th day of October, 2010.
J U D G M E N T
This appeal is preferred against the
judgment and decree passed by the District
Judge, Lakshadweep in O.S.17/97. The suit is
one for settlement of boundaries and injunction.
It is the case of the plaintiff that the
property comprised in Sy.No.161/24 where house
named Devanigothi Boduge is situated belonged to
the mother of the plaintiff namely Kaddha and
defendant’s mother Pathumma jointly. According
to her they divided the property orally and
plaint schedule portion was allotted to the
plaintiff’s mother and the other portion was
allotted to Pathumma. The plaintiff’s mother by
virtue of the document No.21/72 had assigned her
right which was obtained under the oral
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partition in favour of the plaintiff and
therefore the plaintiff is claiming right over
that property. It is also contended that as per
the proceedings in S.C.172/77 the settlement
officer had found that the ownership of the
house in Sy.No.161/24 has to be confirmed in the
name of the plaintiff as well as the defendant’s
mother. Therefore the suit is filed.
2. The defendant on the other hand would
submit that the plaintiff is not entitled to any
relief. The property described in the plaint
schedule property belonged to the defendant
exclusively and therefore the plaintiff is not
entitled to any fixation of boundaries. It is
admitted that there had been an oral partition
between the mother of the plaintiff and the
mother of the defendant. The property described
in the plaint schedule property was set apart to
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the share of the mother of the defendant and
therefore the defendant is entitled to the
property and the plaintiff with her family are
residing in a neighbouring plot and so the suit
is liable to be dismissed.
3. In the trial court PW1 and DW1 were
examined. Exts.A1 to A3, B1 to B3 and C1 to C3
were marked. On an analysis of the evidence the
trial court has dismissed the suit. It is
against that decision the plaintiff has come up
in appeal.
4. Heard the learned counsel for the
appellant and the young counsel for the
respondent. At the out set it has to be stated
the suit is one for settlement of boundaries.
So unless there is possession attached it may
not be possible to fix the boundaries and title
also becomes relevant. Now even according to
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the document Ext.A2 which is relied upon by the
plaintiff to declare the joint entitlement over
the property in Sy.No.161/24 there is a finding
recorded by the settlement officer that the
plaintiff’s mother had been put out of
possession. Now the crux of the matter is that
what was the properties that were allotted to
the mother of the plaintiff and the mother of
the defendant in a oral partition which is said
to be taken between those two sisters. If the
plaint schedule property forms part and parcel
of the property allotted to the mother of the
plaintiff under the oral partition, then
necessarily the mother will get the right to
assign that property or gift that property in
favour of her daughter which will also entitle
her to get right over the property. Now the
contention of the defendant is that there had
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been an oral partition between the sisters but
it is specifically stated that the plaint
schedule property was set apart to her share of
the mother of the defendant and therefore the
plaintiff’s mother did not have any title to the
property and so a subsequent gift or assignment
in favour of the plaintiff will not confer on
her any title. The Court below had also found
that there is no positive evidence adduced by
both the sides to the effect that which are the
properties that are set apart to these sisters.
Only on a finding on that there would be a
proper resolution of the dispute between the
parties.
5. Now as I held earlier the whole question
is in a liquid state and with these materials it
may not be possible to settle the dispute
between the parties by fixing the boundaries of
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the property. The very important question of
entitlement of the plaintiff over the property
is the larger question to be decided. Only when
that larger question is decided a relief can be
granted. Therefore the plaintiff may have to
institute a proper suit for declaration of her
title and for recovery of possession, if so
advised. Leaving open that to the plaintiff I
dismiss this appeal for the reason that the
relief sought for cannot be granted in this
suit. Parties are directed to bear their
respective costs.
M.N. KRISHNAN, JUDGE.
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A.S. 620 OF 1998
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M.N. KRISHNAN, J.
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A.S. No.620 OF 1998
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J U D G M E N T
14th October, 2010.