IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 AS.No. 397 of 1999(D) ------------------------------ OS.131/1991 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S):DEFENDANTS ------------------------ 1. A.P.KUNJILAKSHMI, W/O.PAZHANIKUTTY, NOW RESIDING AT THARAKKALAM, CHITTIANCHERI, ALATHUR TALUK, PALAKKAD. 2. UNNIKRISHNAN, S/O. KASU, CHUKKAMKONAM, VILAYANCHATHANUR, VILAYANUR P.O., ALATHUR TALUK, PALAKKAD. (DIED) *ADDL. APPELLANTS 3 TO 6 ARE IMPLEADED 3. MADHAVI , W/O. LATE UNNIKRISHNAN AGED 48 YEARS, RESIDING AT CHUKKAMKONAM, VILAYANCHATHANUR, VILAYANNUR P.O. ALATHUR TALUK. 4. SANTHOSH, S/O. LATE UNNIKRISHNAN AGED 28 YEARS, -DO- -DO- 5. GIREESH, S/O. LATE UNNIKRISHNAN AGED 25 YEARS, -DO- -DO- 6. INDHU, D/O. LATE UNNIKRISHNAN AGED 23 YEARS, -DO- -DO- ADDL. APPELLANTS 3 TO 6 ARE IMPLEADED AS THE LR'S OF THE DECEASED 2ND APPELLANT AS PER ORDER IN CMP. 58/02 DT. 29.11.04. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.K.ARUNKUMAR A.S. NO.397/1999 RESPONDENT(S): PLAINTIFF ------------------------- PREMAKUMARAN, S/O.T.C.PAZHANIKUTTY, THACHAMOOCHIKKAL HOUSE, VILAYANCHATHANUR, VILAYANNUR P.O., ALATHOOR TALUK, PALAKKAD. (DIED). *ADDL. R2 & R3 ARE IMPLEADED 2. PANCHALI P.R., W/O. LATE PREMAKUMARAN, TACHAMOOCHIKKAL HOUSE, VILAYANCHANOOR P.O. VILAYANNOOR, ALATHUR TALUK PALGHAT DISTRICT. 3. SATHEESH S/O. LATE PREMAKUMARAN, DO. DO. *ADDL. RESPONDENT 2 & 3 IMPLEADED AS THE LR'S OF THE DECASED SOLE RESPONDENT AS PER ORDER IN CMP.3755/01 DT. 24.10.01. ADV. SRI.A.K.MADHAVAN UNNI FOR ADDL.R2 & R3 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.3202/1999 IN AS. NO.397/1999 DISMISSED 05.01.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== A.S. No.397 OF 1999 ===================== Dated this the 5th day of January 2009 JUDGMENT This appeal is preferred against the judgment and decree of the Sub Court, Palakkad in O.S.No.131 of 1991. The unfortunate litigation is mainly between the son and the mother. The 2nd defendant in the suit is a purchaser of some trees cut and removed. It is the case of the plaintiff that there was a suit for partition pending between the parties as O.S.No.389 of 1980. It was decreed and against the same an appeal was filed before the High Court of Kerala as A.S.No.150 of 1988. During the pendency of the appeal, the matter was compromised between the parties and Ext.A1 agreement was executed. In the light of Ext.A1 agreement, this Court dismissed the appeal by Ext.A2 judgment. 2. It is the case of the plaintiff that by virtue of the terms in the agreement Ext.A1, he is in possession of A schedule properties described therein and the plaint schedule items are items 66 to 70, part of item 71 and item 78 of A schedule. According to him, while he was not in the station, the first defendant and others had cut and removed the trees and attempted AS 397/1999 -:2:- to trespass into the property and therefore he has filed a suit for damages and also for an injunction. 3. Defendants would contend that the plaintiff has no title or possession over the plaint schedule property. The plaintiff has not obtained any right as claimed by him under Ext.A1 agreement. There were conditions to be satisfied and documents to be executed in order to make Ext.A1 workable and further it is contended that the plaint schedule property is also a part and parcel of item 3 of B schedule and therefore he had requested the court to dismiss the suit. 4. In the trial court PW1 and DW1 were examined. Exts.A1 to A3, B1 to B3 and C1 were marked. On analysis of the materials, the trial court granted a decree in favour of the plaintiff. It is against that decision, defendants have come up in appeal. During the pendency of the appeal, the 2nd appellant as well as the 1st respondent died and legal representatives of the 2nd appellant are impleaded as additional appellants 3 to 6 and that of first respondent as additional respondents 2 and 3. 5. The point that arises for determination in the appeal are (1) whether the plaintiff is entitled to the decree as prayed for and (2) whether the trial court has erred in granting a decree in favour of the plaintiff. 6. Points 1 and 2: For the sake of convenience both the points are AS 397/1999 -:3:- considered together. The suit is one for damages and injunction. The plaintiff is the son of the first defendant. There was a suit between the mother, son and others and when it reached the High Court, the matter was compromised between the parties and the High Court after recording Ext.A1 agreement as a compromise dismissed the appeal under Ext.A2 judgment. It is the case of the plaintiff that items 66 to 70, part of item 71 and item 78 are the plaint schedule properties and that by virtue of Ext.A1, he is the owner in possession of those items along with other items and defendants had trespassed into that property and had cut and removed palmyra trees and other trees thereby causing damages to the plaintiff. 7. I have perused Ext.A1. Ext.A1 is an agreement entered into between the plaintiff, the defendant and his sisters. A perusal of the said document would reveal that the properties had been compartmentalized into A schedule and B schedule. As per the terms of the agreement it refers to an earlier oral partition and that by virtue of the agreement the properties described in A schedule had been handed over possession to the plaintiff earlier. It is also specifically made clear in paragraph 4 of Ext.A1 agreement that executant Nos. 1, 3 or 4 will have any right or possession over the property described as A schedule in the document. It is further recited in Ext.A1 that B schedule is the self acquired property of the mother, viz., the AS 397/1999 -:4:- first defendant herein and nobody else did have any right over the said property. Learned counsel for the appellant strongly relies upon the recitals in paragraph 6 of the agreement which states that in order to complete the partition matter when documents are prepared both the parties are bound to sign. So, learned counsel would contend that Ext.A1 will not confer any right on the plaintiff unless the documentation is completed. At the first blush it appears a very persuasive argument. But the recitals in paragraphs 3 and 4 would show that the parties had entered into a compromise by effecting an oral partition and by virtue of that oral partition the plaintiff had been put into possession of the property mentioned in A schedule of Ext.A1 agreement. Therefore even at the time of execution of Ext.A1 agreement the plaintiff had been put into possession of the property compromised in A schedule of Ext.A1 agreement. So, it may not be correct on the part of the first defendant to contend that the plaintiff has not obtained possession or right over the property in the case. 8. Learned counsel then would contend that it is not proved that the trees are cut and removed from the plaint schedule property. I had perused Ext.C1 Commissioner's report. The Commissioner had reported that he had identified the property with respect to the boundaries shown in the plaint schedule and thereafter had given details regarding the cutting and removal AS 397/1999 -:5:- of trees. Even though defendants had raised a contention that it is a part and parcel of B schedule items 3 no evidence is forthcoming to establish that fact. So, the recitals compromised in Ext.A1 coupled with the description of items 66 to 70, a portion of item 71 and 78 of A schedule and the Commissioner's report would establish that trees had been cut and removed from the property which had been set apart to the plaintiff under Ext.A1 agreement. Since Ext.A1 also shows that the plaintiff had put into possession of the property that possession also cannot be disturbed. Therefore from these discussions, I hold that the court below had arrived at a correct decision, which does not call for any interference. Therefore the appeal is dismissed. But under the circumstances, there will be no order as to costs. M.N.KRISHNAN, JUDGE Cdp/-