IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 SA.NO. 238 OF 1998(C) --------------------------------- AS.99/1991 OF PRINCIPAL SUB COURT, PALAKKAD OS.253/1986 OF MUNSIFF COURT, ALATHUR .................... APPELLANT(S) - APPELLANT - PLAINTIFF: -------------------------------------------------- SHEREEF, S/O.SYED MUHAMMED ROWTHER, AUTHOOR KOLAMBU, THANDALODE, MUDAPPALLUR AMSOM, ALATHUR DESOM. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SMT.PRAVEENA A.KAMMATH RESPONDENT(S) - RESPONDENT - RESPONDENT: ------------------------------------------------------------ MAJEEB, S/O.ATHAR ROWTHER, THANDALODE, MUDAPPALLUR AMSOM ALATHUR TALUK. ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.KODOTH PUSHPARAJAN SRI.M.KRISHNAKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. No.238 of 1998 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of February, 2009 J U D G M E N T ---------------------- The unsuccessful plaintiff has preferred this Second Appeal. He prayed for a decree for prohibitory injunction restraining the respondent from trespassing into the plaint schedule property which he described as 84 cents in Sy.No.266 of 3 of Madappallur amsom. Appellant claimed that the said property along with other items were subjected to a partition between his father and other co-owners as per Ext.A1, partition deed No.160/72 allotting the schedule property (item No.7 in the A schedule of Ext.A1) to his father who executed Ext.A2, gift deed No.1063/72 in his favour. Appellant produced Ext.A3 series to evidence payment of revenue for the said property and Ext.A5, purchase certificate issued by the Land Tribunal. Since there was some discrepancy in the boundary descriptions in item No.7 in A schedule of Ext.A1 and in Ext.A2, appellant's father executed Ext.A4, correction deed dated 2.9.1986. Thus appellant claimed title and possession of the schedule property. Respondent while refuting the allegation that he attempted to trespass into the schedule property contended that he has no dispute over the claim of the appellant in respect of the property referred to as item No.7 in A S.A.. No.238 of 1998 -: 2 :- schedule of Ext.A1 or even Ext.A2, gift deed but pleaded ignorance about Ext.A4, correction deed. It is further contended that right of the appellant is confined to the property lying within the boundaries mentioned in item No.7 of A schedule in Ext.A1 and Ext.A2 and that the attempt of the appellant is to reach upto the property in the possession of the respondent by executing Ext.A4 without the junction of the respondent. Both sides adduced evidence in the trial court. On the request of the appellant, an Advocate Commissioner was deputed to inspect the property. Commissioner has submitted Exts.C1 and C2, report and plan prepared with the assistance of the Taluk Surveyor. The trial court found that there is no identification of the property claimed by the appellant, Ext.A4 cannot be accepted and consequently dismissed the suit. Before the first appellate court also contentions raised by the appellant did not succeed. There was a request to remand the case to the trial court for proper measurement and identification of the schedule property but, that request was not acceded to. Aggrieved, appellant has preferred this Second Appeal. 2. Learned counsel for the appellant reiterated the contentions raised on behalf of the appellant in the courts below and submitted that at any rate, in the facts and circumstances of the case S.A.. No.238 of 1998 -: 3 :- a remand is called for. Learned counsel also submitted that the appellant had filed I.A. No.133 of 1989 in the trial court for amendment of the plaint to incorporate a description in the light of Exts.C1 and C2 but that request was rejected by the learned Munsiff. Learned counsel therefore submitted that in case this Court finds that on the materials available on record reliefs as prayed for cannot be granted, appellant be given an opportunity to take out proper commission for measurement and identification of the schedule property. Counsel for the respondent contended that with the materials available on record appellant is not entitled to get any relief as prayed for and that a remand at this belated stage is futile since in the absence of other sharers in Ext.A1 on the party array, a measurement and identification of the property in the way claimed by the appellant is not permissible or feasible. 3. It is true that the appellant is armed with Ext.A5, purchase certificate issued in his name after Ext.A2, gift deed. Exhibit A5, purchase certificate was issued based on Exts.A1 and A2 and the boundary descriptions are given as in Exts.A1 and A2, and not as per Ext.P4. Hence Ext.P5 cannot come to the rescue of the appellant. 4. I have gone through the description of the property S.A.. No.238 of 1998 -: 4 :- referred to as item No.7 in A schedule of Ext.A1 under which appellant's father who executed Ext.A2 gift deed got title and possession. That description is as if the property allotted to the appellant's father is lying as a single plot within the boundaries mentioned therein while in Exts.C1 and C2, the Advocate Commissioner found only the blue shaded portion (12 cents) as covered by the boundary descriptions in Ext.A1 and A2. Advocate Commissioner has shown in Ext.C2 another plot (red shaded portion) and described it as the “alleged schedule property”. According to the learned counsel for appellant, that red shaded portion also forms part of the plaint schedule property which along with the blue shaded property made up the total extent to 84 cents. It is also contended by the learned counsel that it is therefore that I.A. No.133 of 1989 was filed in the trial court for amendment of the plaint. 5. I have gone through the order dated 10.3.1989 in I.A. No.133 of 1989. It is seen that what was requested was to permit amendment of the plaint to mention the red shaded portion as “alleged schedule property”. I am at a loss to understand how describing the portion of the property as “alleged schedule of property” relief of prohibitory injunction could be granted to the S.A.. No.238 of 1998 -: 5 :- appellant. On the facts and circumstances of the case, I am inclined to think that dismissal of I.A. No.133 of 1989 requires no interference. 6. So far as the identification of the property is concerned, going by Exts.C1 and C2, Commissioner found the blue shaded portion (12 cents) alone as the property referred to in Ext.A2 and as item No.7 in A schedule of Ext.A1. The boundary descriptions in item No.7 of A schedule of Ext.A1 and in Ext.A2 do not tally with the descriptions in the plaint schedule. P.W.1, mother of the appellant who gave evidence on his behalf was not able to clarify the discrepancies. Proper measurements are also not given in Ext.A1. Commissioner has not stated the extent of the red shaded portion. According to the Commissioner, the blue shaded portion (12 cents) alone lies within the boundaries as described in item No.7 of A Schedule in Ext.A1 and in Ext.A2. Exhibit A4, correction deed which would indicate that rest of the property claimed by the appellant is situated a little away from the blue shaded portion cannot bind the respondent as he is not a party to that deed. In these circumstances, I do not find any reason to interfere with the concurrent findings entered by the courts below that the schedule property as claimed by the appellant (84 cents) is not properly identified. S.A.. No.238 of 1998 -: 6 :- 7. Then the next question is whether the request for remand for measurement and identification of the property has to be allowed. After giving an anxious consideration of that request, I am satisfied that it is not feasible or justifiable to remand the case at this stage after about 23 years also since that would not improve the situation as without the parties who would be affected by the descriptions in Ext.A4 to whom properties are allotted under Ext.A1 on the party array, a measurement in the line suggested by the appellant cannot be done. The proper course open to the appellant, if so advised is to sue for declaration of title or such appropriate reliefs as circumstances warranted with necessary parties on the party array. 8. No other points arises for consideration. This appeal fails. It is dismissed. No costs. Civil Miscellaneous Petition No.703 of 1998 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv S.A.. No.238 of 1998 -: 7 :- THOMAS P.JOSEPH, J. =================== S.A. NO.238 OF 1998 =================== J U D G M E N T 6TH FEBRUARY, 2009