IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS No. 485 of 2001()
1. SATHI VILASINI
... Petitioner
Vs
1. JAYASREE
... Respondent
For Petitioner :SRI.O.RAMACHANDRAN NAMBIAR
For Respondent :SRI.N.HARIDAS
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :19/03/2007
O R D E R
K.Padmanabhan Nair,J.
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A.S.No.485 of 2001
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Dated, this the 19th day of March, 2007
JUDGMENT
The plaintiff in O.S.No.94 of 1996 on the file of
Additional Sub Court, Palakkad is the appellant. The plaintiff filed
the suit for recovery of possession on the strength of title. It is
averred that the property originally belonged to one Kalyani,
D/o.Kasi. The plaintiff purchased the same under Exhibit A1
registered assignment deed dated 22.11.1982. It is averred that
the property situate on the western side of the 100 Feet Road
proceeding to Malampuzha. It is further averred that the plaintiff
was residing with her husband at Bombay and at that time the
defendant-respondent trespassed into the property and reduced
the same into her possession. Hence the suit for recovery of
possession on the strength of title. The defendant-respondent
entered appearance and filed a written statement contending that
the appellant has no title or possession over the property
described in the plaint. According to her, the property belonged
to one A.K.Saradha, who sold the same to her under Exhibit B1
A.S.No.485 of 2001
– 2 –
sale deed dated 22.3.1990. It is contended that after purchasing
the property when she started construction, the suit was filed
with mala fide intention.
2. A Commissioner was deputed, who filed Exhibit C1
(a) interim report and Exhibit C1 final report and Exhibit C1(b)
plan. On the side of the plaintiff, her husband was examined as
P.W.1. The defendant gave evidence as D.W.1. The
Commissioner was examined as C.W.1. The learned Sub Judge
found that the plaint description does not tally with the property
covered by Exhibit A1 and dismissed the suit. Challenging that
judgment and decree that the appeal is filed.
3. The learned counsel appearing for the appellant
though raised several contentions, ultimately pressed for a
remand. It is submitted that the suit was dismissed on the sole
ground that the description of the plaint schedule property does
not tally with the description of the title deed relied on by the
plaintiff. It is submitted that a perusal of the plan appended to
the sale deed with Exhibit C1(b) plan would show that there is a
mistake either in the plan appended to the sale deed or in the
plan submitted by the Commissioner.
A.S.No.485 of 2001
– 3 –
4. Sri.N.Haridas, learned counsel appearing for the
respondent-defendant submitted that the plan submitted by the
Commissioner was prepared with the help of a Surveyor attached
to the Municipality after verifying with the revenue records and
there is absolutely nothing wrong with it. It is contended that
though plaintiff claims to have purchased the property in the year
1982, she approached the Court only in the year 1996 for
recovery, which shows lack of bona fides. It is also argued that
the defendant had already started construction of a residential
building in the property purchased by her and the construction of
basement was already over and when the further construction
was in full swing, the plaintiff filed the suit and obtained an order
of injunction.
5. After hearing the arguments advanced by both
sides, I am of the view that a brief, but reasonable opportunity
can be given to the plaintiff to get the property covered by
Exhibit A1 sale deed identified. Though it is not specifically stated
so in the judgment, it is evidently clear that the Court below has
not considered the correctness or otherwise of Exhibit C1, but at
the same time found that the description of the property given in
A.S.No.485 of 2001
– 4 –
the title deed did not tally with the plaint description. So, it is
only just and proper that an opportunity is given to the plaintiff
to file an application to give a direction to the Commissioner to
conduct another local inspection and file a supplementary report
and plan and then consider the claim of title raised by the
plaintiff. For that purpose, the matter has to go back.
In the result, the appeal is allowed. The judgment and
decree passed by the Court below are hereby set aside. The suit
is remanded. The parties will appear in the Court below on
12.4.2007. There will be a direction to the Additional Sub Judge
to try and dispose of the suit as expeditiously as possible, at any
rate, within six months from the date of appearance of parties.
Office is directed to transmit the records forthwith. The Court Fee
paid on the memorandum of appeal shall be refunded to the
appellant. C.M.P.No.3488 of 2001 and I.A.No.547 of 2007 shall
stand dismissed.
K.Padmanabhan Nair
Judge
vku/-