IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 825 of 2008()
1. SICILY AGNAS, D/O. SICILY, T.C.
... Petitioner
2. JOHN HUSBAND OF AGNES, T.C.NO71/1300(1)
Vs
1. AGNES GELLY, D/O MARY @ MORRI,
... Respondent
2. VINISI FERNANDEZ, T.C.71/1300(4)
3. JOSEPH FERNANDEZ S/O. VISINI FERNANDES,
4. JOSPIN FERNADEZ, S/O. VISINI FERNADES,
For Petitioner :SRI.R.S.KALKURA
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :18/09/2008
O R D E R
V. RAMKUMAR, J.
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R.S.A.No.825 of 2008
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Dated this the 18th day of September, 2008
JUDGMENT
Defendants 4 and 5 in O.S.No.1574/2000 on the file of the I
Additional Munsiff’s Court, Trivandrum are the appellants in this
second appeal. The said suit instituted by the 1st respondent
herein was originally for a perpetual and mandatory injunction
and was subsequently amended as one for recovery of possession
of the plaint schedule property on the strength of title.
2. The concurrent findings recorded by the courts below
are as follows:-
The plaint schedule property admeasuring 7 cents
comprised in Sy.No. 2799 of Muttathara village was part of a
larger extent of 17 cents which originally belonged to one
Anthony Rocky, grandfather of the plaintiff. On the death of the
Anthony Rocky , the said larger extent of 17 cents devolved upon
Anthoniyal, the widow of Anthony Rocky. During the lifetime of
the Anthony Rocky himself he had executed Ext.A1
Sthreedhanam deed/document No. 3522/1108(ME)
(corresponding to 1933) in favour of the plaintiff’s mother and
R.S.A.No.825 of 2008
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father by name Maria @ Mary and Innas with regard to 7 cents
of property described in Ext.A1 as situated towards the southern
portion of the said 17 cents. It was with regard to the said 7
cents of property that the suit was filed.
3. Both the courts have decreed the suit for recovery of
possession on the strength of the plaintiff’s title.
4. The learned counsel for the appellants/ defendants 4 and
5 made the following submissions before me in support of the
appeal:-
Going by the description in the plaint, the plaint schedule,
the property admeasuring 7cents is lying towards the eastern
portion of the larger extent of 17 cents. But the property which
has been identified by the Commissioner as the plaint schedule
property is plot ABCDEI which forms the southern portion of the
larger extent of the 17 cents which has been identified as
ABCDEFGHI. When the plaintiff herself has no case that the
plaint schedule property lies towards the southern portion of the
larger extent of 17 cents and the plaint schedule property is also
described in the plaint as 7 cents forming the eastern portion of
the 17 cents, the courts below could not have granted a decree
for recovery of possession in respect of the southern portion of
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17 cents. Ext.C1 report and C1(a) Plan should not have been
relied on by the courts below, since they were filed in the court
before the impleadment of the appellants as additional
defendants 4 and 5.
5. I am afraid that I cannot agree with the above
submissions. It is true that, going by the plaint, description of
the suit property in the schedule to the plaint is described as the
eastern portion of the larger extent of 17 cents. But then, there
is no case that the boundaries shown in the plaint schedule are
wrong. Both the courts have held that the property identified by
the Advocate Commissioner as plot ABCDEI and located towards
the southern portion of the larger extent of 17 cents is the
property conveyed under Ext.A1 wherein also the property is
described as the southern portion of the larger extent of 17
cents. The only defect, if at all, is in the plaint schedule which
was not amended in terms of the description in Ext.C1(a) plan
submitted by the Commissioner and which is in accordance
with Ext.A1 title deed. But both courts have concurrently held
that the plaint schedule property though wrongly described in
the plaint schedule is the very same property conveyed under
Ext.A1 title deed and correctly described as plot ABCDEI in
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Ext.C1(a) plan which is made part of the decree.
6. Hence the maximum which could be said is that the
plaintiff may have to amend the plaint to make it in confromity
with Ext.C1(a) plan which has been made in fact made part of
the decree by the courts below. The plaintiff can still amend the
plaint and decree schedule if need be.
7. The further contention that Ext.C1 report and C1(a) plan
could not have relied on against the appellants also cannot be
accepted since no such contention was raised before the courts
below. Moreover, the appellants are none other than the
persons who were inducted by defendants 1 to 3 without any
authority, right or title in their favour. There is no dispute that
Exts.C1 report and C1(a) Plan were prepared in the presence of
defendants 1 to 3, hence the above contention is not available to
the appellants. No question of law, much less any substantial
question of law, arises for consideration in this second appeal
which is accordingly dismissed in limine.
Dated this the 18th day of September, 2008.
V. RAMKUMAR, JUDGE
sj