IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 SA.No. 759 of 1996() -------------------- AS.685/1994 of SUB COURT,NEYYATTINKARA OS.835/1992 of PRL.MUNSIFF'S COURT, NEYYATTINKARA .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------- PADMANABHA PILLAI GANGADHARAN NAIR, GEETHA BHAVAN, KOTTAKKAKOM, THIRUPURATHOOR DESOM, THIUPURAM VILLAGE. BY ADV. SRI.G.S.REGHUNATH SRI.R.S.KALKURA RESPONDENT/RESPONDENT/DEFENDANT: ------------------- D.S. SHERLI, VALIYAVILA VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE. BY ADV. SMT.M.HEMALATHA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 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 -2- S.A.No.759/96 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 ¼ 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 -3- S.A.No.759/96 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 -4- 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 -5- 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 -6- 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 -7- S.A.No.759/96 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