IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 SA.No. 572 of 1994(B) -------------------------------- AS.176/1986 of DISTRICT COURT, KOTTAYAM OS.186/1981 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANT(S): RESPONDENT/DEFENDANT --------------------------------------------------------------- 1. KOTTAYAM TILE WORKS LTD., NEELIMANGALAM PERUMPAIKADU, REP.BY DIRECTOR KRISHNA IYER RESIDING AT BRINDAVAN, A36, INDIRA NAGAR, DEVALOKAM P.O., KOTTAYAM. *ADDL. 2ND APPELLANT IMPLEADED. 2. M/S.GANDHINAGAR REGENCY PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT GANDHI NAGAR P.O., PERUMPAIKATTUSSERY KARA, PERUMPAIKADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, REP.BY ITS MANAGING DIRECTOR, K.J.JOSEPH. *ADDL. 2ND APPELLANT IS IMPLEADED AS PER ORDER DTD. 14.1.2008 IN IA. 1133/2005. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): APPELLANTS/PLAINTIFFS ----------------------------------------------------------------- 1. JOSEPH, S/O. JOSEPH, CHOORAKATTILAYA KUTTIKALAYIL, PERUMPAIKADUSSERI KARA, DO. VILLAGE. SA. 572/1994 *2. CHACKO, DO.DO.DO. (DIED) *IT IS RECORDED THAT R1 IS THE LEGAL HEIRS OF THE DECEASED R2 AS PER ORDER DTD. 23.7.2004ON MEMO DTD. 11.3.2004. ADV. SRI.ROY CHACKO R1 SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE R1 BY ADV. SRI.P.GOPAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON 14/07/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 572 of 1994 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2010. JUDGMENT Defendants in O.S. 186 of 1981 before the Munsiff's Court, Ettumanoor are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for declaration of title, recovery of possession and other consequential reliefs. The plaint schedule property consists of 5 cents in Sy. No.90/3A and 9 cents in Sy. No.90/3B. The plaintiffs are the grand children of one Thommen Ouseph. Thommen Ousheph had two children, Thommen and Ouseph, and both of them pre-deceased Thommen Ousheph. The plaintiffs are the children of Ouseph. Thommen Ouseph had executed a Will in 1947 in relation to his properties. A schedule property under the Will was allotted to the children of Thommen and B schedule was allotted to the plaintiffs. According to the plaintiffs, the plaint schedule S.A.572/1994. 2 properties were allotted to them as per B schedule to the Will and it was also claimed that during the lifetime of Thommen Ouseph, he had given 14 cents to the defendant Company, which was engaged in the manufacture of tiles. Plaint item No.1 is the property obtained by the plaintiffs as per the Will and plaint itemNo.2 is the shed put up by the defendant. The tile Company is no longer functioning. Therefore the property was demanded back. Since the defendant was unwilling to return the property, the suit was filed. 3. The defendants resisted the suit. It is contended by the Company that the suit property is a portion of the property belonging to the Company comprised in Sy. No.90/3A. The Company held an extent of 1.83 acres. The Company has been in possession of the property for over 60 years and the property lies within well defined boundary separating it from the neighbouring property. A portion of the property was acquired for the railway line and another portion for the Medical College. The balance extent S.A.572/1994. 3 of property is in the absolute possession and enjoyment of the Company. They disputed the title of the plaintiffs and they also contended that the plaintiffs are not entitled to any relief. By way of caution, they also pleaded that in case it is found that the plaintiffs have title to the property, the same has been lost by adverse possession and limitation. 4. The trial court on an evaluation of the evidence found that the plaintiffs are not entitled to any relief and dismissed the suit. Plaintiffs carried the matter in appeal as A.S. 176 of 1986 before the District Court, Kottayam. The appellate court reversed the decree of the trial court and granted a decree and therefore the appeal. 5. It is unnecessary to go into the details of the case in the light of the order dated 20.2.2008 passed by this court on the basis of the submission made by the learned counsel for the parties on either side. It was submitted on behalf of the parties that the parties are prepared to settle the dispute on proper identification of the property covered by the registered deed. It was submitted that since the S.A.572/1994. 4 relevant documents were not available when the suit and the first appeal were pending and heard, the property could not be identified with respect to those deeds. 6. It was felt that for a just disposal of the appeal, proper identification of the property is necessary. This court directed the Munsiff's Court, Ettumanoor to appoint an experienced Commissioner at the expense to be shared equally by the parties to identify the property covered under the registered assignment deed dated 27th Midhunam, 1092 M.E. with the assistance of an experienced qualified Surveyor and to prepare a plan. After receiving the report, the court was directed to forward the same to this court. 7. It appears that in pursuance of the direction issued from this court, the Munsiff's court, Ettumanoor appointed Adv. M. Shajahan as the Commissioner. The Commissioner had submitted a report and plan. The report in detail narrates the procedure adopted for measuring the property. S.A.572/1994. 5 8. The Commissioner has adopted two methods for measuring the property. He has referred to the materials relied on and the procedure for measurement. There are two types of measurement and he narrated the details of both the measurements done by him and he has also shown the extent of property covered by the two measurements. The report shows that the court may accept any one of the measurements. 9. It seems that the plaintiffs have filed objection to the report. One of the grounds taken in the objection is that the measurement has not been done in accordance with Kerala Survey Boundaries Act, 1961. Another ground taken is that the suggestion of the Advocate Commissioner that 59 Ares of property may be deducted from the extent of property available to the plaintiffs cannot be accepted. 10. Both the contentions have no basis at all. The commissioner has in detail in his report said about the methods adopted by him for measuring the property. He has also given in detail the authority on the basis of which S.A.572/1994. 6 he adopted the mode of measurement. It is seen that the methods adopted are authentic and authoritative. There is no reason to discard the report. Equally without force is the second contention that 0.59 Ares should not be deducted from the extent of the property to be returned to the plaintiffs. The Commissioner has given reasons for the same and there is no reason to reject the same. 11. It is also interesting to note that the plaintiffs lay claim only to nearly 10 cents and also that the property so claimed by him has been identified by the Commissioner in the suit, which is evident from Ext.C1(a) plan. The property in the possession of the defendants is shown in brown colour and it is DE plot. The extent comes to almost the extent now found by the Commissioner in the present report regarding the property that is available to the plaintiffs. In the light of these facts, there is no reason to reject the commission report dated 27.3.2008 filed before the Munsiff's Court, Ettumanoor. S.A.572/1994. 7 In the result, in modification of the decree passed by the lower appellate court, the following decree is passed: It is declared that the plaintiffs are entitled to recover plot shown as AGHB in the sketch prepared by the Commissioner in the report dated 27.3.2008 and they are entitled to recover the same from the defendants as prayed for in the plaint. P. BHAVADASAN, JUDGE sb.