IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 AS.No. 660 of 1999(D) ---------------------------- AGAINST THE JUDGMENT AND DECREE IN O.S.NO.160/94 ON THE FILE OF THE SUB COURT, PAYYNNUR. .................... APPELLANT/PLAINTIFF: ----------------- CHALANATTU LAKSHMI, D/O. KUNHIPAPPAN, AGED 48 YEARS, NO OCCUPATION, UDAYAGIRI PANCHAYAT, ALAKKODE AMSOM ARANGAM DESOM. BY ADV. SRI.O.V.MANIPRASAD SRI.O.V.MANIPRASAD RESPONDENTS/DEFENDANTS: -------------------- 1. CHALANATTU BHAVANI, D/O.KUNHIPAPPAN, AGED ABOUT 60 YEARS, NO OCCUPATION, UDAYAGIRI PANCHAYAT, ALAKKODE AMSOM ARANGAM DESOM. 2. CHALANATTU ETTYATHI, AGED ABOUT 55 YEARS, -DO- -DO- 3. SUKUMARAN CHALANATTU, S.O.KUNHIPAPPAN, AGED ABOUT 50 YEARS, -DO- -DO- ADV. SRI.V.N.RAMESAN NAMBISAN R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.5190/99 IN A.S.NO.660/99 ----------------- Dismissed 19/10/2009 Sd/- HARUN-UL-RAHSID, JUDGE. True Copy P.S.TO JUDGE HARUN-UL-RASHID,J. --------------------------- A.S.NO.660 OF 1999 --------------------------- DATED THIS THE 19TH DAY OF OCTOBER, 2009 JUDGMENT Plaintiff in O.S.No.160/94 on the file of the Sub Court, Payyannur is the appellant. The suit was filed for declaration and permanent prohibitory injunction. The court below dismissed the suit. Hence, this appeal. 2. Plaintiff and defendants are the children of Chelanat Kunhipappan. Plaintiff and the lst defendant are daughters and defendants 2 and 3 are their brothers. The plaint schedule property is having an extent of 1 acre as per the registered marupatam document No.1045/58 marked as Ext.A2. Chelanat Kunhipappan obtained the plaint schedule properties on lease undertaking to pay annual rent at the rate of Rs.27/- by virtue of Ext.A2 marupat. Admittedly, the property belonged in jenm to Vellad Devaswom. Kunhipappan executed a gift deed No.4118/67 marked as Ext.A1 in favour of his children. Item -2- A.S.No.660/1999 No.1 of Ext.A1 gift deed is set apart to the lst defendant, item No.2 to the 2nd defendant, item No.3 to the 3rd defendant and item No.4 in favour of the plaintiff. The plaint schedule property in the suit is item No.4 of Ext.A1 gift deed. It is the case of the plaintiff that after the gift deed, the plaint schedule property is in the possession and enjoyment of the plaintiff and that after her father's death, she attorned purappad to the landlord directly and paid the basic tax. It is stated in the plaint that the defendants were on inimical terms with the plaintiff and therefore they have denied the right, title and interest of the plaintiff in the plaint schedule property and attempted to dispossess the plaintiff and to take forcible possession of the same. The plaintiff is residing far away from the plaint schedule property and the defendants are residing near to the property. 3. The lst defendant alone contested the suit. In the written statement the lst defendant admitted that her father Chelanat Kunhipappan obtained the plaint schedule property on -3- A.S.No.660/1999 kuzhikanom right from Vellad Devaswom as per document No.1045/58. The execution of gift deed (Ext.A1) and the allotment of extent of property therein to each parties respectively were also admitted. It is further stated that all the items in the gift deed were enjoyed as a common property, that the plaintiff is not in possession and enjoyment of the property as per the description and measurements given in the gift deed, that after the death of her father, the income from the entire property was taken by the defendants 2 and 3. It is also contended that the measurements and boundaries given in the plaint schedule are vague and the property cannot be identified with reference to the description. 4. The lst defendant also contended that her husband Narayanan is having 3 acres of land and he has obtained the said property from Vellad Devaswom, that his property is situated on the northern side of the property of the plaintiff and defendants, that there is definite demarcating boundary around the property -4- A.S.No.660/1999 belonging to Narayanan and that he had obtained purchase certificate No.2467/76 from the Deputy Collector, Land Tribunal, Taliparamba. She further contended that if the claim of the plaintiff relates to any portion of the property belonging to the husband of the lst defendant, the suit is not maintainable in law. The court below framed necessary issues including the issue regarding the identification of the property. 5. The evidence in this case consists of oral evidence of PW1, DW1, Exts.A1 to A3 series, B1 to B6 series and C1 to C4. 6. Going by the contentions of the parties it is clear that there is no dispute in respect of the property claimed by the plaintiff under Ext.A1 gift deed. The apprehension of the lst defendant is that her husband has obtained 3 acres of property from Vellad Devaswom and the same is lying on the northern boundary of the property obtained by Chelanat Kunhipappan as per Ext.A2 marupat. According to the lst defendant, if the claim of the plaintiff relates to any portion of the property which was -5- A.S.No.660/1999 obtained by her husband, the suit is not maintainable. The contesting lst defendant has no case that the plaintiff is not entitled to the relief in respect of the property allotted to her under Ext.A1 gift deed. 7. The dispute centres around the identification of the property. The property obtained by Chelanat Kunhipappan under Ext.A2 marupat is to be identified. The very same property was the subject matter of Ext.A1 gift deed. So, the identification of the entire property covered by Ext.A1 and A2 is very important and the plaintiff is entitled to the extent of property covered by Ext.A1 after demarcating and identifying the said property and extent. No doubt the plaintiff and defendants are entitled to the right, title and interest over the property so demarcated and identified as their separate shares. For the purpose of identifying the property covered under Ext.A1 and A2, it is necessary to identify and demarcate the property claimed by the husband of the lst defendant, since there is a contention in the written -6- A.S.No.660/1999 statement of the lst defendant that the plaintiff cannot claim any portion of the property, which belongs to the husband of the lst defendant. 8. The trial court deputed a Commissioner to identify the plaint schedule property. Ext.C1 is a report submitted by the Commissioner, in which it is reported that the property at the northern side of the property marked in Ext.C2 plan belongs to Narayanan. Ext.C3 is the second report of the Commissioner, in which it is reported that the plaintiff and defendants 2 and 3 pointed out the plots A, B, C, D and E marked in Ext.C4 as the plots covered by the marupat. In Ext.C1 report the Commissioner has reported that there is no demarcating boundary separating the plot marked in Ext.C2 plan and the property at its northern side. According to the lst defendant, the plots C, D, B, G and H marked in Ext.C4 are the property covered by the marupat and plots A, C and E marked in Ext.C4 belongs to her husband Narayanan. The plaintiff has claimed that plot C -7- A.S.No.660/1999 marked in Ext.C4 is the property obtained by her as per Ext.A1 gift deed. The Commissioner has not measured the property claimed by the husband of the lst defendant. The total extent of the property covered by Ext.A2 marupat is 6 acres. The total extent of plots A to G marked in Ext.C4 is 8.58 acres. The trial court dismissed the suit mainly for the reason that without measuring the properties claimed by the husband of the lst defendant and without making him as a party to the proceedings, it is not possible to ascertain the correct location of the property claimed by the plaintiff. 9. None of the parties to the suit has a case that the plaintiff did not acquire title by virtue of Ext.A2 marupat and Ext.A1 gift deed. She is claiming a portion of the property obtained by her father under Ext.A2 marupat. The contesting lst defendant has not disputed the title of the plaintiff. Her only contention is that her husband has got the property on the northern boundary of Ext.A2 marupat. Therefore, it has become -8- A.S.No.660/1999 necessary to ascertain the property covered by Ext.A2 marupat and Ext.A1gift deed. On identification of the property covered by Ext.A1 gift deed it is easy for the Commissioner to identify the plots gifted to each and every children of Kunhipappan. The Commissioner also can identify the property obtained by Narayanan by virtue of marupat in his name and Ext.B3 purchase certificate. The plaintiff shall implead the husband of the lst defendant as an additional defendant in the suit in order to resolve the dispute between the parties. The trial court shall depute a Commissioner to identify the property covered by Ext.A2 marupat and Ext.A1 gift deed. After identifying the said property, the Commissioner shall also identify the northern property claimed by the lst defendant as belonging to her husband by virtue of the marupat and Ext.B3 purchase certificate. 9. The dismissal of the suit for the reasons stated by the trial court is unsustainable. Simply because the property was not properly identified by the Commissioner, that cannot be a reason -9- A.S.No.660/1999 to non-suit the plaintiff. Therefore, the trial court shall depute an experienced Lawyer as a Commissioner to demarcate and identify the plaint schedule property. In the result, the judgment and decree under appeal are set aside and the case is remanded to the trial court for fresh consideration in accordance with law. The parties shall be given an opportunity to adduce additional evidence if any. The trial court shall dispose of the matter within a period of nine months from the date of receipt of a copy of this judgment. Court fee paid shall be refunded to the appellant. HARUN-UL-RASHID, Judge. kcv.