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Padmanabha Pillai vs D.S.Sherli on 26 July, 2010

Kerala High Court
Padmanabha Pillai vs D.S.Sherli on 26 July, 2010
       

  

  

 
 
  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.
              ------------------------------
                      S.A.NO.759 OF 1996
             -------------------------------
             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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S.A.No.759/96

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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S.A.No.759/96

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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S.A.No.759/96

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

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