IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 AS.No. 577 of 1999(D) --------------------- OS.175/1995 of SUB COURT, KASARAGOD .................... APPELLANT(S)(PLAINTIFF): -------------------------------------- T. NARAYANAN, S/O. T. KANNAN, RESIDING AT KUNDANKUZHI, BEDADKA VILLAGE, KASARAGOD TALUK, P.O., KUNDANKUZHI, (VIA) CHENGALA, KASRAGOD DISTRICT. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES RESPONDENT(S)/DEFENDANT: ------------------------------------------- P. KORAN, S/O. APPA, RRESIDING AT KUNDANKUZHI, BEDADKA VILLAGE, KASARAGOD TALUK, P.O. KUNDANKUZHI, (VIA) CHENGALA, KASARAGOD DISTRICT. (DIED. LRS IMPLEADED) ADDL. R2 TO R7 ARE IMPLEADED. 2. RAGHAVAN, S/O. LATE KORAN, RESIDING AT KUNDANKUZHI, BEDADKA VILLAGE, KASAAGOD TALUK, P.O. KUNDANKUZHI. 3. GOPALAN, S/O. LATE KORAN, RESIDING AT -DO- -DO- 4. KRISHNAN, S/O. LATE KORAN, RESIDING AT -DO- -DO- 5. LEELA, D/O. LATE KORAN, RESIDING AT -DO- -DO- 6. SADANANDAN, S/O. LATE KORAN, KARANTHATTADUKKA, P.O., KUNDANKUZHI, BEDADKA VILLAGE. 7. SANTHA, D/O. LATE KORAN, P.O. KUNDANKUZHI, BEDADKA VILLAGE. LEGAL REPRESENTATIVES OF THE DECEASED R1 ARE IMPLEADED AS ADDL. R2 TO R7 AS PER ORDER DATED 22.6.2009 IN I.A. 471/2003. ADV. SRI.K.G.GOURI SANKAR RAI FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON 12/01/2010 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 577 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of January, 2010. JUDGMENT The plaintiff, who had his suit for declaration dismissed by the court below is the appellant. 2. Plaint A schedule property was a portion of a larger extent of property owned by one Omana Amma. The total extent of land comprised in Sy.No. 191/5B was one acre. 60 cents was outstanding with one Somoji on tenancy right. He obtained jenm right over the property. After the death of Somoji, the property had devolved on his legal heirs. From the 60 cents obtained by the legal heirs, they assigned 20 cents of land to the defendant as per document dated 13.6.1978. Seven and a half cents was conveyed to the plaintiff and to his brother Bhaskaran in 1972. 5 cents was sold by Meenakshi Amma to one person. The balance 16 and a half cents, which remained with the legal heirs was assigned to the plaintiff as per Ext.A1 dated 18.2.1985. The plaintiff thus obtained plaint A schedule A.S. 577/1999. 2 property. The defendants have no manner of right over the suit property. Based on a decree in a suit for injunction, it is pointed out that the defendants are asserting title over the suit property. Therefore it has become necessary for the plaintiff to seek declaration of his title. Hence the suit. 3. The suit was resisted by the defendants. It is pointed out by him that the description shown in the plaint is false and incorrect. Somaji had only possession of 50 cents of property and not 60 cents as alleged in the plaint. The widow of Somoji, namely Meenakshi Amma had conveyed 20 cents to the defendant by document dated 13.6.1978 and he is in possession of the same. The defendant was in actual possession and enjoyment of the property on the eastern side of the property conveyed as per deed dated 13.6.1978. That was outstanding on leasehold right and he obtained purchase certificates with reference to the same. The plaintiff has no manner of right over the property thus so obtained by the defendant. When the plaintiff tried to trespass into his A.S. 577/1999. 3 property, he instituted a suit O.S.280 of 1985 before the Munsiff's Court, Kasaragod. That suit was decreed and that decree has become final. Pointing out that the plaintiff is not entitled to any relief, he prayed for a dismissal of the suit. 4. The court below framed necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 and 2 and Exts.A1 to A11were marked on the side of the plaintiff. The defendant marked Exts.B1 to B7. On a consideration of the materials, the court below came to the conclusion that the plaintiff is not entitled to any relief and accordingly dismissed the suit. The said judgment and decree are assailed in this appeal. 5. The question that arises for consideration is whether any interference is called for with the judgment and decree of the court below. 6. The subject matter of the suit is 16 and a half cents comprised in Sy. No.191/5B. Both the plaintiff and the defendant trace their titles from the same owner Omana Amma. It is not in A.S. 577/1999. 4 dispute that the right, title and interest over the one acre property comprised in the survey number originally vests with Omana Amma. The plaintiff would say that out of the said one acre, 60 cents was in the possession of Somoji. But the defendants would say that the actual extent in possession of Somoji was only 50 cents. The plaintiff claims to have acquired 16 and a half cents of property as per Ext.A1 dated 18.2.1985 from the legal heirs of Somoji. The defendant also lays claim to a portion of the property comprised in the above survey number as an alienee from the legal heirs of Somoji. In addition to the said claim, the defendant had also put up a contention that a portion of the property in the same survey number was outstanding on lease with him and he obtained purchase certificate in respect of the same. 7. It appears that there have been several litigations between the parties with regard to the properties owned by them. One of such suits is O.S.280 of 1985. Ext.B2 is the judgment in the suit and Ext.B1 is the decree. Ext.B4 is the judgment in appeal A.S. 577/1999. 5 and it is stated that the matter was concluded in the second appeal before the High Court in favour of the defendant in the case. The contention of the defendant is that the property now shown in the plaint is a portion of the property owned by him, which was the subject matter of the lease in O.S.280 of 1985 and therefore the plaintiff is not entitled to any relief. 8. The court below has found that the subject matter of O.S.280 of 1985 is the property covered by Ext.A8 sale deed. The court below noticed that the decree in O.S.280 of 1985 had become final. Unfortunately for the plaintiff, in O.S. 280 of 1985 it was found that the property covered by Ext.A8 sale deed was denoted as 191/5B1 and 191/5B2A. The property taken in by Ext.A11 was shown as 191/5B2B. The lower court is correct in its finding that as far as the property covered by Ext.A8 is concerned, they are plot Nos. 191/5B1 and 1915B2A shown in Ext.B6 plan in the suit. Obviously the plaintiff cannot re-agitate that question at all. A.S. 577/1999. 6 9. Learned counsel for the appellant pointed out that the court below has not considered the pleadings and the evidence in the proper perspective. The issue really involved was the identification of the property obtained by the respective parties from the legal heirs of Somoji as both of them claimed under the same person. Learned counsel for the appellant pointed out that there were two sets of commission reports and plans. Even accepting the commissioner's report, it may be seen that the plaintiff is entitled to a decree for atleast five and a half cents. There was no justification in declining to grant any relief in the suit. 10. Learned counsel appearing for the respondents on the other hand pointed out that the court below has considered the entire aspects of the case and has come to the conclusion that the plaintiff is not entitled to any relief. No grounds are made out to interfere with the said finding. A.S. 577/1999. 7 11. On going through the judgment of the court below, it is found that the court below has accepted Ext.C2 Commission report and Ext.C4 plan. From a reading of the Commission report, it does not appear that there has been a proper identification of the properties by the Commissioner. The procedure that ought to have been adopted was to ascertain the total extent of property in that particular survey number and locate the same. Thereafter 60 cents which was said to be outstanding in the possession of Somoji ought to have been identified. One must remember here that the claim of the defendant is that even though 60 cents of property shown in the document, Somoji was in possession of 50 cents, this aspect had to be ascertained. Thereafter the various plots, which were assigned by the legal heirs of Somoji had to be identified. Of course, the plaintiff is bound by the decree in O.S.280 of 1985. Even assuming that any portion of the property, which the plaintiff obtained under Ext.A1 is taken in by the plaint in O.S.280 of 1985, the plaintiff can now raise no grievance, because the decree A.S. 577/1999. 8 in the said suit had become final. But, if on the other hand it is found that 16 and a half cents of property, which the plaintiff claims to have obtained under Ext.A1 is identifiable separately and is not a portion of the property owned by the defendant, then he is entitled to a decree in that regard. Whatever that be, even going by the Commissioner's report Ext.C2 and the plan Ext.C4, it is clear that there are five and a half cents available even now, which must have been considered to be taken by Ext.A1 document and to which plaintiff is legally entitled to. One fails to understand as to why no decree was atleast granted with regard to that five and an half cents of property. It is felt that the matter requires reconsideration at the hands of the trial court. In the result, this appeal is allowed and the judgment and decree of the court below are aside and the matter is remanded to the trial court for fresh consideration in the light of what has been stated above. The court below will make every endeavour to A.S. 577/1999. 9 dispose of the suit as expeditiously as possible. There will be no order as to costs. P. BHAVADASAN, JUDGE sb. A.S. 577/1999. 10 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 577 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 12.01.2010.