IN THE HIGH COURT OF KERALA AT ERNAKULA PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 SA.No. 568 of 2001(A) --------------------- AS.125/1995 of SUB COURT,NEYYATTINKARA OS.403/1963 of II ADDL.M.C., NEYYATTINKARA .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------- GOPALAN APPUKUTTAN, KOOTHAKOTTU KOMATHU VEEDU, VVANDANNOOR, MARANALLOOR DESOM, MARANALOOR VILLAGE. BY ADV. SRI.G.P.SHINOD SRI.P.V.RAMESH SHANKAR SRI.G.P.SHINOD SRI.RAM MOHAN.G. RESPONDENTS/RESPONDENT/4TH DEFENDANT --------------------- SANKARAN KRISHNAN, CALLED AS KCOHAN KRISHNAN, VARUVILAKATHU VEEDU, ARUMANOORTHURA DESOM, THIRUPURAM VILLAGE. (DIED) ADDL. 2. UMAYAMMA, J. GOVINDAVILASOM BUNGLOW, PERUMPAZHUTHOOR P.O., NEYYATTINKARA. '' 3. MADHU, VISHNUSREE, -DO- -DO- '' 4. REMA, GOVINDAVILASOM BUNGLOW OF -DO- -DO- '' 5. SASIKALA, -DO- -DO- '' 5. SUDHAKARAN, -DO- -DO- '' 6. BHASI, -DO- -DO- '' 7. GEETHA, -DO- -DO- '' 8.GOPAN, -DO- -DO- '' 9. VIJU PRAKASH, -DO- -DO- (Addl. respondents 2 to 10 are impleaded as the legal heirs of the deceased sole respondent as per order dated. 18/1/2005 in I.A.595/03) BY ADVS. SRI.B.KRISHNA MANI SRI.V.PREMCHAND THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/6/2009, ALONG WITH CRP NO. 652 OF 1996 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- S.A.NO.568/2001 ORDER ON CMPNO.1295/2001 IN S.A.NO.568/2001 ------ Dismissed 16/6/2009 Sd/- Harun-Ul-Rashid, Judge. True Copy P.S. to Judge HARUN-UL-RASHID,J. --------------------------- S.A.NO.568 OF 2001 & C.R.P.NO.652 OF 1996 --------------------------- DATED THIS THE 16TH DAY OF JUNE, 2009 JUDGMENT Plaintiff in O.S.No.403/1963 on the file of the IInd Additional Munsiff's Court, Neyyatinkara is the appellant. The appeal is directed against the judgment and decree in A.S.No.125/1995 on the file of the Sub Court, Neyyattinkara. 2. The plaintiff filed the suit for partition of plaint A schedule items 1 and 2 and redemption of C & D schedule items on payment of mortgage money and value of improvements. A preliminary decree was passed on 10/11/1966 declaring the plaintiff's right over 1 acre 41 cents in A schedule item No.1 and 15 cents in item No.2 and allowing redemption of C & D schedule properties. In the final decree proceedings the Commissioner submitted Ext.C1 and C2 report and plan demarcating the property in terms of the preliminary decree. -2- S.A.No.568 & C.R.P.NO.652/96 Final decree was passed accepting the report and plan, allotting to the plaintiff plot Nos.1, 3 and 9 in item No.1 of plaint schedule and plot No. 2 in item 2 of A schedule and redemption of C and D schedule properties. 3. The 4th defendant claimed tenancy right under Section 4A (1) (a) of the Kerala Land Reforms Act. The tenancy claim relates to a portion of C schedule property. The claim was negatived by the trial court and confirmed in appeal. In S.A.No.345/82 this Court set aside the final decree and judgment to the extent of declining relief to the 4th respondent by not offering the benefit under Section 4A(1)(a) of the Act in respect of the plaint schedule property. This Court declared that the 4th respondent is a deemed tenant entitled to the benefit of Section 4A (1)(a) of the Act and a direction was issued to the trial court to pass a revised final decree in the light of the modification as aforesaid. After remand, again the Commissioner was deputed. 4. The Commissioner filed Exts.C3 report and C3(a) plan -3- S.A.No.568 & C.R.P.NO.652/96 stating that he could not identify the property as per Exts.D12 and D13. At the same time, the Commissioner reported that plots C, D, D1, D2, G, H, I and J (45.554 cents) and L, H, G and F (1.950 cents) totalling to an extent of 47.504 cents of property are identified as the property in the possession of the 4th respondent. The court below accepted Exts.C3 report and C3(a) plan and a revised final decree was passed. 5. The plaintiff filed an appeal before the Appellate Court challenging the final decree. The Appellate Court confirmed the final decree and dismissed the appeal. The learned counsel for the appellant contended that the trial court went wrong in accepting Exts.C3 report and C3(a) plan prepared by the Commissioner, that the modifications made in the final decree and judgment based on Ext.C3 and C3(a) cannot stand and are against the mandate of the remand order passed by this Court. He also contended that Ext.C3 report and C3(a) plan are prepared by the Commissioner against the directions of this Court -4- S.A.No.568 & C.R.P.NO.652/96 and identification was made wrongly and not based on the documents of title relied on by the defendant. In the judgment in S.A.No.345/82 this Court set aside the judgment and decree under appeal, in so far as it held that the 4th defendant is not entitled to the benefit of Section 4A (1)(a) of the Act in respect of C schedule property in his possession and after declaring that the 4th defendant is a deemed tenant. So, the finding that the 4th defendant is a tenant entitled to fixity of tenure being a deemed tenant and that he is in possession of the property claimed by him has become final. The only question remitted for consideration by the court below is to identify the property and to exclude the tenanted property. After remand, the Commissioner submitted Exts.C3 report and C3(a) plan. The Commissioner reported that the 4th defendant is in possession of the respective plots mentioned above having an extent of 47.504 cents. The courts below accepted the Commissioner's report and plan identifying that part of the property possessed by the 4th -5- S.A.No.568 & C.R.P.NO.652/96 defendant. The courts below also observed that the report revealed that the property held by the 4th defendant is having separate entity and the same could be identified clearly by well defined boundaries on all sides. Therefore, the Commissioner's report and plan were accepted and final decree was modified accordingly. The contentions against Ext.C3 and C3(a) were again agitated before the Appellate Court. The Appellate Court also came to the same conclusion and accepted the Commissioner's report and plan and held that the identification of the property held by the 4th defendant is valid and proper. Since the question of identity is a question of fact and that the Commissioner's report and plan are held to be valid, I do not find any reason for taking a different view in this second appeal. The allotment of property based on the identification made by the Commissioner is based on the directions issued by this Court and the fact finding court accepted the report and plan finding that the properties are properly identified. I do not find any reason to -6- S.A.No.568 & C.R.P.NO.652/96 interfere with the judgment impugned in this appeal. In the result, the appeal fails and accordingly, it is dismissed. C.R.P.No.652/1996 is directed against the order in E.P.No.348/1995 in O.S.No.403/1963. In view of the dismissal of S.A.No.568/2001, the execution petition can be proceeded with in accordance with law. C.R.P. is disposed of as above. No order as to costs. HARUN-UL-RASHID, Judge. kcv. -7- S.A.No.568 & C.R.P.NO.652/96 HARUN-UL-RASHID,J. ------------------------ S.A.NO.568 OF 2001 And C.R.P.No.652 of 1996 ------------------------ JUDGMENT 16th June, 2009