IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 572 of 1994(B)
1. KOTTAYAM TILE WORKS LTD REP BY DIRECTOR
... Petitioner
Vs
1. JOSEPH
... Respondent
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.ROY CHACKO
The Hon'ble MR. Justice P.BHAVADASAN
Dated :14/07/2010
O R D E R
P. BHAVADASAN, J.
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S.A. No. 572 of 1994
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Dated this the 14th day of July, 2010.
JUDGMENT
Defendants in O.S. 186 of 1981 before the
Munsiff’s Court, Ettumanoor are the appellants. The
parties and facts are hereinafter referred to as they are
available before the trial court.
2. The suit was one for declaration of title,
recovery of possession and other consequential reliefs.
The plaint schedule property consists of 5 cents in Sy.
No.90/3A and 9 cents in Sy. No.90/3B. The plaintiffs are
the grand children of one Thommen Ouseph. Thommen
Ousheph had two children, Thommen and Ouseph, and
both of them pre-deceased Thommen Ousheph. The
plaintiffs are the children of Ouseph. Thommen Ouseph
had executed a Will in 1947 in relation to his properties.
A schedule property under the Will was allotted to the
children of Thommen and B schedule was allotted to the
plaintiffs. According to the plaintiffs, the plaint schedule
S.A.572/1994. 2
properties were allotted to them as per B schedule to the
Will and it was also claimed that during the lifetime of
Thommen Ouseph, he had given 14 cents to the defendant
Company, which was engaged in the manufacture of tiles.
Plaint item No.1 is the property obtained by the plaintiffs as
per the Will and plaint itemNo.2 is the shed put up by the
defendant. The tile Company is no longer functioning.
Therefore the property was demanded back. Since the
defendant was unwilling to return the property, the suit was
filed.
3. The defendants resisted the suit. It is
contended by the Company that the suit property is a
portion of the property belonging to the Company comprised
in Sy. No.90/3A. The Company held an extent of 1.83 acres.
The Company has been in possession of the property for
over 60 years and the property lies within well defined
boundary separating it from the neighbouring property. A
portion of the property was acquired for the railway line and
another portion for the Medical College. The balance extent
S.A.572/1994. 3
of property is in the absolute possession and enjoyment of
the Company. They disputed the title of the plaintiffs and
they also contended that the plaintiffs are not entitled to any
relief. By way of caution, they also pleaded that in case it is
found that the plaintiffs have title to the property, the same
has been lost by adverse possession and limitation.
4. The trial court on an evaluation of the evidence
found that the plaintiffs are not entitled to any relief and
dismissed the suit. Plaintiffs carried the matter in appeal as
A.S. 176 of 1986 before the District Court, Kottayam. The
appellate court reversed the decree of the trial court and
granted a decree and therefore the appeal.
5. It is unnecessary to go into the details of the
case in the light of the order dated 20.2.2008 passed by this
court on the basis of the submission made by the learned
counsel for the parties on either side. It was submitted on
behalf of the parties that the parties are prepared to settle
the dispute on proper identification of the property covered
by the registered deed. It was submitted that since the
S.A.572/1994. 4
relevant documents were not available when the suit and
the first appeal were pending and heard, the property could
not be identified with respect to those deeds.
6. It was felt that for a just disposal of the appeal,
proper identification of the property is necessary. This court
directed the Munsiff’s Court, Ettumanoor to appoint an
experienced Commissioner at the expense to be shared
equally by the parties to identify the property covered under
the registered assignment deed dated 27th Midhunam, 1092
M.E. with the assistance of an experienced qualified
Surveyor and to prepare a plan. After receiving the report,
the court was directed to forward the same to this court.
7. It appears that in pursuance of the direction
issued from this court, the Munsiff’s court, Ettumanoor
appointed Adv. M. Shajahan as the Commissioner. The
Commissioner had submitted a report and plan. The report
in detail narrates the procedure adopted for measuring the
property.
S.A.572/1994. 5
8. The Commissioner has adopted two methods
for measuring the property. He has referred to the materials
relied on and the procedure for measurement. There are
two types of measurement and he narrated the details of
both the measurements done by him and he has also shown
the extent of property covered by the two measurements.
The report shows that the court may accept any one of the
measurements.
9. It seems that the plaintiffs have filed objection
to the report. One of the grounds taken in the objection is
that the measurement has not been done in accordance with
Kerala Survey Boundaries Act, 1961. Another ground taken
is that the suggestion of the Advocate Commissioner that 59
Ares of property may be deducted from the extent of
property available to the plaintiffs cannot be accepted.
10. Both the contentions have no basis at all. The
commissioner has in detail in his report said about the
methods adopted by him for measuring the property. He
has also given in detail the authority on the basis of which
S.A.572/1994. 6
he adopted the mode of measurement. It is seen that the
methods adopted are authentic and authoritative. There is
no reason to discard the report. Equally without force is the
second contention that 0.59 Ares should not be deducted
from the extent of the property to be returned to the
plaintiffs. The Commissioner has given reasons for the same
and there is no reason to reject the same.
11. It is also interesting to note that the plaintiffs
lay claim only to nearly 10 cents and also that the property
so claimed by him has been identified by the Commissioner
in the suit, which is evident from Ext.C1(a) plan. The
property in the possession of the defendants is shown in
brown colour and it is DE plot. The extent comes to almost
the extent now found by the Commissioner in the present
report regarding the property that is available to the
plaintiffs. In the light of these facts, there is no reason to
reject the commission report dated 27.3.2008 filed before
the Munsiff’s Court, Ettumanoor.
S.A.572/1994. 7
In the result, in modification of the decree passed by
the lower appellate court, the following decree is passed:
It is declared that the plaintiffs are entitled to
recover plot shown as AGHB in the sketch prepared by the
Commissioner in the report dated 27.3.2008 and they are
entitled to recover the same from the defendants as prayed
for in the plaint.
P. BHAVADASAN,
JUDGE
sb.