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.
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S.A.NO.568 OF 2001 &
C.R.P.NO.652 OF 1996
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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.
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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
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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
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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
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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
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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.
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S.A.No.568 &
C.R.P.NO.652/96
HARUN-UL-RASHID,J.
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S.A.NO.568 OF 2001
And
C.R.P.No.652 of 1996
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JUDGMENT
16th June, 2009