IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 AS.No. 304 of 1998(A) ------------------------------ [OS.NO.29/1993 OF ADDITIONAL SUB COURT, THALASSERY] .................... APPELLANTS/DEFENDANTS 1 TO 7: ---------------------------------------------------- 1. MINNI JANU, W/O. CHATHUKUTTY, SIVAPURAM AMSOM. P.O. MALLANOOR, TELLICHERY TALUK. 2. MINNI MUKUNDAN, S/O. CHATHUKUTTY, -DO- -DO-. 3. MINNI GOVINDAN, S/O. CHATHUKUTTY, -DO- -DO-. 4. MINNI KUNHIRAMAN, S/O. CHATHUKUTTY, -DO- -DO-. 5. MINNI SAHADEVAN, S/O. CHATHUKUTTY, -DO- -DO-. 6. MINNI SADANANDAN, S/O. CHATHUKUTTY, -DO- -DO-. 7. MINNI DHARMARAJAN, S/O. CHATHUKUTTY, -DO- -DO-. BY ADVS. SRI.P.VISWAMBHARAN, SRI.P.VISWANATHAN, SRI.V.P.K.PANICKER, SRI.S.VIDYASAGAR, SRI.T.R.RAJEEV, SRI.DINESH R.SHENOY. RESPONDENTS/PLAINTIFF & DEFENDANTS 8 TO 10: --------------------------------------------------------------------------- 1. NARIKKODAN JANARDHANAN NAIR, S/O. CHANDUKKUTTY NAIR, RESIDING AT KOTTAYIL HOUSE, KUNDERIPOYIL, SIVAPURAM, MALLANOOR.P.O. A.S. NO.304/1998: 2. MATTANKOTTU MATHU, D/O. CHIRUTHA, SIVAPURAM AMSOM, MALLANNOOR.P.O. 3. MATTANKOTTU NANU, S/O. NATHU, -DO- -DO-. 4. CHITTAKOOL NARAYANI, D/O. KANNAN, SIVAPURAM AMSOM, MALLANNOOR.P.O. R1 BY ADVS. SRI.K.G.BALASUBRAMANIAN, SRI.T.V.JAYAKUMAR NAMBOODIRI, R2 & R3 BY SRI.GRASHIOUS KURIAKOSE, R4 BY SRI.K.RAJEEV. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO.304/1998.A: ORDER ON C.M.P. NO. 2318/1998 IN A.S. NO.304/1998-A DISMISSED 06/12/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 304 OF 1998 = = = = = = = = = = = = = = = Dated this the 6th 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, Thalassery in O.S.29/93. The suit is one for recovery of possession, fixation of boundary, damages and injunction. The trial court has granted a decree for fixation of boundary and injunction and it is against that decision defendants 1 to 7 have come up in appeal. The brief facts are as follows. The property originally belonged to one Mattankot Krishnan. After Krishnan's death the property devolved on his mother Chirutha. Chirutha in the year 1958 executed two gift deeds on the same day bequeathing one and half acres each to her children Chathukutty and Ammini. Both these A.S. 304 OF 1998 -2- children assigned 50 cents each to their sister Madhavi. Thereafter Ammini assigned her remaining property to the plaintiff and Madhavi assigned the property which she got in favour of the plaintiff. So going by the plaintiff's calculation plaintiff is entitled to two acres of land and Chathukutty is entitled to remaining one acre of land. 2. The appellants would contend that the plaintiff is not entitled to the relief and over and above the property that is left by Chirutha and after the assignment deed in favour of Madhavi there was properties which belonged to Chathukutty by himself on the western side of the property and therefore the plaintiff is not entitled to the relief. Defendants 8 and 10 would contend that the plaintiff had assigned them 50 cents of land and they were in A.S. 304 OF 1998 -3- possession of 50 cents of land under Chathothidam tarwad on oral lease and therefore they are entitled to be in possession of one acre of land. 3. Now the question that will determine the fate of the case depends upon the demarcation of property with reference to the documents. It is seen from the plaint that this Mattankot Krishnan has got a lease deed in the year 1931. Ext.A1 is a marupattam with reference to the same property executed by Chirutha, the predecessor-in-interest of defendants 1 to 7 Ammini and Madhavi. Item 1 therein is a property having a measurement of 70 x 50 six feet koles which comes to 3500 perukkams and when converted into acreage, 2.92 acres of land. Under Exts.B2 and B3 Chirutha executed gift in favour of her two children namely Chathukutty A.S. 304 OF 1998 -4- and Ammini. Ext.B4 is an assignment deed executed by Janardhanan Nair and others in favour of Mattangot Mathu. Now for a proper disposal of the matter I feel the following approach is absolutely essential. 4. In order to properly understand the property obtained by Krishnan or Chirutha that property which is described as item No.1 in Ext.A1 has to be properly identified with respect to the measurement and boundaries as described in Ext.A1. Thereafter the properties gifted by Chirutha in favour of Ammini and Chathukutty as per Ext.B2 and B3 are to be found out. Thereafter the property assigned by Ammini and Chathukutty in favour of Madhavi is to be demarcated. Thereafter Ammini's assignment in favour of Janardhanan Nair with respect to the remainder is to be found out. When it is done A.S. 304 OF 1998 -5- as the plaintiff is claiming right over the property by virtue of the assignment deed executed by Ammini and Madhavi when the property is properly located it will be an end to the litigation because the plaintiff cannot have any right over the property other than what is given by these two persons. It is only a portion of the property so obtained that is transferred by the plaintiff in favour of D8 and D10. So when the property obtained by the plaintiff under the document claimed by him is properly demarcated then only the properties title which he claims can be decided by the Court. But the question whether Chathukutty was having the property on the western side of the property gifted to him or not is not very relevant for the purpose of deciding this case because it is not the subject matter of the suit and the subject matter is the A.S. 304 OF 1998 -6- property which is the subject matter of lease in favour of Krishnan and Chirutha. If the said identification is done with respect to these documents the entire dispute can be resolved properly. Unfortunately the learned Subordinate Judge has gone little away from that and had attempted to consider the property to be alleged to be taken by Chathukutty on lease separately and also considered the question whether the defendants 8 and 10 had taken any property from Chathothidam tarwad and that has led to the confusion. When the property is identified and demarcated with respect to documents which I have referred to above and suppose if there is some reduction in the extent available on the land then a proportionate reduction can be made so that parties entitlement can be fixed. Therefore the judgment and decree under A.S. 304 OF 1998 -7- challenge are set aside and the matter is remitted back to the trial court with a direction to identify and demarcate the property as stated in the previous paragraphs of the judgment and thereafter permit all concerned to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Since the parties have produced some documents before this Court they are permitted to take back the document and produce it before the trial court if they feel it necessary. If the very same Commissioner is available he may be deputed for the purpose otherwise fresh Commission can be issued and the initial expenses has to be met by the plaintiff and ultimately it will depend upon the result of the other. Parties are directed to appear before A.S. 304 OF 1998 -8- the trial court on 10.1.2011 and let there be an expeditious disposal of the case. M.N. KRISHNAN, JUDGE. ul/- A.S. 304 OF 1998 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.304 OF 1998 = = = = = = = = = = = J U D G M E N T 6th December, 2010.