IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 AS.No. 769 of 1996() ------------------------- OS.148/1993 of SUB COURT, THIRUVALLA .................... APPELLANT(S)/DEFENDANTS ---------------------------------- 1. MADHAVI AMMA, AGED 68 YEARS, ANJILETHU VEETTIL, KADAPRA VILLAGE, THIRUVALLA. 2. MOHANAN NAIR, 42 YEARS, S/O.GOVINDAN NAIR, ANJILETHU HOUSE, KADAPRA VILLAGE, THIRUVALLA. BY ADV. SRI.M.V.S.NAMPOOTHIRY RESPONDENT(S):/PIAINTIFF ---------------------------------- * (AYYAPPAN NAIR KUTTAPPAN NAIR, AGED 74, KADAKKETHU VEETTIL, EDASSERIMALA MURI, ARANMULA VILLAGE, THIRUVALLA. DIED). ** ADDL. R2 TO R7 IMPLEADED 2. LALITHAMBIKA ALIAS LATITHA, KADAKKETHU VEETTIL, EDASSERIMALA MURI, ARANMULA VILLAGE, THIRUVALLA. 3. SOMASEKHARAN NAIR, DO. DO. 4. VILASINI, DO. DO. 5. DILIPKUMAR, DO. DO. 6. LEELAMANI, DO. DO. 7. PRASANNA, DO. DO. LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS R2 TO R7 VIDE ORDER DATED 29/10/2010 ON C.M.P. NO.3614/1997. ADV. SRI.C.HARIKRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ ORDER ON C.M.P. NO.4631/1996 IN A.S. NO. 769/1996 DISMISSED 02/12/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 769 OF 1996 = = = = = = = = = = = = = = = Dated this the 2nd day of December , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thiruvalla in O.S.148/93. The suit is one for declaration, injunction and damages. The trial Court has granted a decree and it is against that decision defendants 1 and 3 have come up in appeal. The brief facts necessary for the disposal of the appeal are stated as follows. The plaint schedule property is having an extent of 19 cents in Sy.No.14/8-A. Admittedly these properties along with the other properties belonged to two persons of which one person transferred his right in favour of the plaintiff and defendants' predecessors. At the time of the said period some properties were A.S.769 OF 1996 -2- outstanding in mortgage and the contesting defendants' predecessor Govindan Nair and another person D7, instituted a suit for redemption and have obtained a decree for redemption with respect to 19 cents of property. Now the plaintiff would contend, thereafter by virtue of Ext.A3 the property was divided wherein the plaint schedule property and other properties were kept jointly in favour of the executant Nos.1 to 6 and 9 and item 10 of A schedule in Ext.A3 takes in the plaint schedule property as well. Now it is his case that thereafter by virtue of Ext.A4 there was a division between the parties with respect to these items which was kept as A schedule and by virtue of the same the plaint schedule property and some other properties were set apart to the plaintiff and therefore the plaintiff is legally A.S.769 OF 1996 -3- entitled to right over the said property. It is the case of the plaintiff that defendants' predecessors Govindan Nair and subsequently defendants had cut branches by branches of Anjili tree and therefore he had claimed damages to a tune of Rs.29,500/-. 2. On the other hand, the contesting defendants would contend that the plaintiff does not have any right or possession over the plaint schedule property and the property in dispute was the subject matter of redemption and it was redeemed by Govindan Nair and D7 and therefore that property belonged to them exclusively and so by virtue of Ext.A3 or A4 the plaintiff will not get any right over that property. It is also their contention that as they had obtained possession over the property and right they were entitled to cut and remove trees as well. A.S.769 OF 1996 -4- 3. After an elaborate consideration of all the documents the learned trial judge found in favour of the plaintiff. The learned counsel for the appellant would submit before me the point that has been raised is that there had been a redemption of the property in favour of two individuals and subsequently if that had not been put into common hotch pot then the question of any right with respect to that property will not arise in the case. But a reading of Exts.A3 and A4 will nullify the contentions for the reason that it is specifically stated that the properties belonged to them jointly and they have excluded the property that was outstanding with strangers on mortgage and thereafter they put the entire properties in their possession to a common hotch pot and effected a division under Ext.A3 document. So it has also to be stated A.S.769 OF 1996 -5- these persons formed a branch. A schedule was set apart to executant Nos.1 to 6 and 9 in Ext.A3. Thereafter by virtue of Ext.A4 these properties were again divided and it is submitted that the plaintiff was set apart to the share of the plaintiff. Now one of the contentions raised is that the Survey Nos.14/8-A is not shown as such in Ext.A4 and as the plaint schedule property is comprised in Sy.No.14/8-A it is to be held that the plaintiff has not obtained that property. The learned Subordinate Judge had taken the pains to identify the property, locate the property with respect to boundaries shown in the document and there is a recital in the document itself that if there is any discrepancy the properties have to be held under the heading of boundaries. The learned Subordinate Judge also found that the said A.S.769 OF 1996 -6- Govindan Nair was not allotted any share of property in respect of Sy.No. 14/8-A or 14/9. The property allotted to him was on the other side of the road. Then the property allotted to the plaintiff was considered by the learned Subordinate Judge and she had held that it starts from the side of a road and the three boundaries were also taken into consideration and held that the only possibility is that the plaintiff should have been allotted the property and nobody else. As stated by me earlier now the question of non inclusion of these items does not arise for the reason Ext.A3 squarely covers the same. 4. Secondly it has been put into a common hotch pot is evidenced from the recitals in Ext.A3. Then by virtue of the description and the boundaries it is clear that the plaint A.S.769 OF 1996 -7- schedule property is set apart to the share of the plaintiff. If all these things are put together there can be little hesitation to hold that the plaintiff has got title over the property described in the plaint schedule property. I concur with the finding of the learned Subordinate Judge. 5. Now so far as the damages is concerned it has been the case of the defendants their father and subsequently they had been cutting branches of the trees as of right as it belonged to them and so the act of cutting by them is admitted by the father. 6. Now the question is regarding the quantum. Though the plaintiff claimed Rs.29,500/- when the defendant was examined he had deposed that it would worth Rs.6,000/- and his version has been accepted by the Court and A.S.769 OF 1996 -8- it has been fixed as the damages. So on an over all analysis of the entire materials I find that the learned Subordinate Judge has appreciated the matter in the proper perspective and had rendered a decision in favour of the plaintiff which does not call for any interference. Therefore the appeal fails and the same is dismissed. But I direct the parties to bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- A.S.769 OF 1996 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.769 OF 1996 = = = = = = = = = = = J U D G M E N T 2nd December, 2010.