IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 759 of 1996()
1. PADMANABHA PILLAI
... Petitioner
Vs
1. D.S.SHERLI
... Respondent
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SMT.M.HEMALATHA
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :26/07/2010
O R D E R
HARUN-UL-RASHID,J.
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S.A.NO.759 OF 1996
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DATED THIS THE 26TH DAY OF JULY, 2010
JUDGMENT
Plaintiff in O.S.No.835/92 on the file of the
Principal Munsiff’s Court, Neyyattinkara is the appellant. The
appeal is directed against the judgment and decree in
A.S.No.685/94 of the Sub Court, Neyyattinkara. The plaintiff
filed the suit seeking declaration of title and possession over the
plaint schedule property and for consequential injunction
restraining the defendants from trespassing into the plaint
schedule property, from demolishing any portion of the plaint
schedule property and from causing any obstruction to the
possession and enjoyment of the plaint schedule property. The
trial court dismissed the suit. The said judgment and decree were
confirmed in appeal. The parties hereinafter are referred to as the
plaintiff and defendants as arrayed in the suit.
2. The plaint schedule property is 56 cents in
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Sy.Nos.113/A/B 2 and 3 and 112/10 1 and 2. Plaintiff claims
title and possession over the plaint schedule property as per
Ext.A1 partition deed dated 30/5/1970. As per Ext.A1 the plaint
schedule property was allotted to the plaintiff by including it in
item No.2 of B schedule. In Ext.A1 the property is described as
56 cents varambu purayidom comprised in Sy.Nos.112/10 and
113/3A/1.
3. The defendant filed a written statement
denying the averments in the plaint and prayed for dismissal of
the suit. According to the defendant, she obtained 23 < cents of
land as per Ext.B1 settlement deed and Ext.B4 patta. The
defendant contended that the plaint description is wrong. The
trial court held that Ext.A1 partition deed does not convey title,
that the plaintiff has not produced any tax receipt to show the
possession of the plaint schedule property and that the suit
property has not been identified properly. Therefore, the suit was
dismissed.
4. The Lower Appellate Court found that as per
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Ext.A1 the plaint schedule property was allotted to the plaintiff
by including it in item No.2 of B schedule and that in Ext.A1 the
property was described as 56 cents varambu purayidom
comprised in Sy.Nos.112/10 and 113/3A/1. At the same time, the
court below held that from the description of B schedule item
No.2 in Ext.A1, it is seen that the plaint schedule property is
comprised in Sy.No.112/10 alone. This finding of the Lower
Appellate Court is not correct. I have perused Ext.A1 title deed,
which shows that the property allotted as B schedule item No.2
of Ext.A1 is 56 cents in Sy.No.113/3A/1 and 112/10 1 and 2.
Since the property is comprised in two survey numbers as stated
above, the Lower Appellate Court is not justified in finding that
the plaint schedule property is comprised in Sy.No.112/10 alone.
The Lower Appellate Court held that the plaint schedule
description does not tally with the description of the property
given in B schedule item No.2 of Ext.A1 and that the description
of plaint schedule property is not in accordance with the
description of B schedule item No.2 of Ext.A1. The Appellate
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Court further observed that it is the duty of the plaintiff to
identify the property by taking out a commission.
5. Exts.C1 report and C1(a) plan are submitted by
the Commissioner. In Ext.C1(a) the plaint schedule property was
identified by the Commissioner as A B C D E F G H I J K L M N
O P Q R S having an extent of 35.165 cents comprised in
Sy.No.113/AB/2 and 3 and 112/10/1 and 2. The Lower
Appellate Court failed to rely on the Commissioner’s report and
plan stating that Ext.C1(a) plan was not prepared by an
authenticated surveyor nor it was prepared based on the survey
plan or resurvey plan.
6. The identification of the property by the
Commissioner through Ext.C1(a) plan was not accepted by the
Lower Appellate Court stating that the plaint schedule property is
having an extent of 56 cents, whereas the property measured and
identified is only 35.165 cents. The plaintiff claims title and
possession over the property described in the schedule. The
property is lying within the four boundaries. Though in ExtA1 it
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is stated that the property is having an extent of 56 cents, on
measurement it was found that the property is only 35.165 cents.
If it is found that the extent of the property is lesser than what is
stated in Ext.A1, that is not a reason for denying the relief to the
plaintiff. If the extent is less, the court can limit the relief and
declare title to the plaint schedule property having lesser extent.
The property is comprised in two survey numbers. Ext.A2 is the
judgment and decree in O.S.No.175/83 filed by the very same
plaintiff against the Panchayat. The subject matter of the suit is
same. In that suit the plaintiff produced 1107 document
mentioned in Ext.A1, which is the prior document conferring title
to the plaintiff’s family. The appellant produced the partition
deed No.2453/1107 M.E. along with I.A.No.1861/2010 filed
before this Court and prayed to accept the partition deed as
additional evidence in the appeal.
7. The suit was dismissed by the trial court and
confirmed by the Appellate Court mainly for the reason that the
plaint schedule property was not properly identified by the
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Commissioner with the authenticated survey records. The Lower
Appellate Court held that the identification was not done by an
authenticated Surveyor and not based on the survey plan or
resurvey plan. Another reason stated by the Lower Appellate
Court is that the plaintiff is in possession of lesser extent than
what is stated in the plaint schedule. That is also not a reason for
examining the case set up by the plaintiff . The Lower Appellate
Court should have remanded the case for fresh consideration
after affording an opportunity to the plaintiff to identify the
property to the satisfaction of the court below. The finding of the
courts below that the plaint schedule property is comprised in
Sy.No.112/10 alone is also wrong, as I said earlier. Therefore,
this Court is of the view that the matter requires re-consideration.
The plaintiff is at liberty to take out a commission for identifying
the plaint schedule property with the assistance of a Taluk
Surveyor and to produce the document now produced along with
I.A.No.1861/2010, before the trial court. The document produced
along with I.A.No.1861/2010 shall be returned to the
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appellant/plaintiff.
In the result, the appeal is allowed. The case is
remanded for de novo trial. The trial court shall consider the case
on merits and dispose of the same in accordance with law within
a period of nine months from the date of appearance of the
parties. The parties shall appear before the court below on 18th
August, 2010.
Sd/-
HARUN-UL-RASHID,
JUDGE.
kcv
