IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 SA.No. 762 of 1998(G) -------------------- AS.112/1991 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.258/1982 of MUNSIFF COURT, PERUMBAVOOR ................ APPELLANTS / APPELLANTS / DEFENDANTS : ------------------------------------------------------------------ *1. MARKOSE, SON OF PAILY, AGED 73, VADAKEDATH THAMANIMATTOM KARA, AIKKARANADU VILLAGE, KUNNATHUNADU TALUK. (DIED) LR'S IMPLEADED AS ADDL. R2 & R3 AND 2ND APPELLANT IS RECORDED AS LR OF 1ST APPELLANT 2. PAULOSE, SON OF MARKOSE, AGED 44, VADAKEDATH, THAMMANIMATTOM KARA, AIKKARANADU VILLAGE, KUNNATHUNADU TALUK. BY ADVS. SRI.C.K.ARAVINDAKSHA MENON SRI. K.C. CHARLES SRI. PRAKASH P. GEORGE SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.K.SANEESH KUMAR RESPONDENT / RESPONDENT / ADDITIONAL PLAINTIFF : ----------------------------------------------------------------------------------- MATHAI, SON OF CHACKO, AGED 55, VADAKKEDATH, THAMMANIMATTOM KARA, AIKKARANADU VILLAGE, KUNNATHUNADU TALUK. *ADDL. R2 & R3 IMPLEADED *2. BABY, AGED 53 YEARS, S/O. MARKOSE, VADAKKEDATH, THAMANIMATTOM KARA, AIKKARANADU VILLAGE, KUNNATHUNADU TALUK. *3. JACOB, AGED 49, S/O. MARKOSE, VADAKKEDATH, THAMANIMATTOM KARA, AIKKARANADU VILLAGE, KUNNATHUNADU TALUK. *1ST APPELLANT DIED AND ADDL. RESPONDENTS 2 AND 3 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 1ST APPELLANT AND IT IS ALSO RECORDED THAT 2ND APPELLANT IS ONE OF THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST APPELLANT AS PER ORDER DTD 22/11/10 IN I.A. NO. 2875/10. R1 BY ADVS. SRI.P.J.VARGHESE SRI.P.J.JOSEPH PANIKKASSERY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- SA.No. 762 of 1998(G) -2- ORDER ON C.M.P. NO. 2168/1998 IN SA. NO. 762/1998 DISMISSED 31/05/2011 SD/- P. BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE Mn P.BHAVADASAN, J. ------------------------------------- SA No.762 of 1998 ------------------------------------- Dated this the 31st day of May 2011 Judgment The defendants, who suffered a decree at the hands of the courts below, are the appellants. During the pendency of the appeal, the first appellant died and his legal heirs have been brought on the party array. The parties and facts are hereinafter referred to as they are available before the trial court. 2. It is not in dispute that the parties obtained plaint A schedule property as per Ext.A1 partition deed dated 16.08.1975. The plaintiff was allotted plaint A schedule property consisting of nine items and the first defendant was given plaint B schedule property which also consists of nine items. According to the plaintiff, plaint item nos.1 and 2 were not properly measured and divided equally. Those properties were divided on an approximate basis. The land in Survey No.955/18 measuring an extent SA 762/98 2 of 1 acre 38 cents belonged to one Chitteth family. After excluding this extent, one acre in this survey number was divided equally ie., 50 cents on the eastern side was given to the plaintiff and 50 cents on the northern side was given to the first defendant. Item No.2 property is comprised in Survey No.955/10BC with a total extent of 1.87 acres which was lying as a compact plot and it was agreed to divide this property into equal plots between the plaintiff and the first defendant. The property comprised in Survey No.985/19B having an extent of 60 cents was lying on the extreme southern side. That property together with the southern side of the property comprised in Survey No.985/19C, measuring a total extent of 93½ cents was given to the plaintiff and the northern half having an extent of 93½ cents was given to the first defendant. Pointing out that the measurements of item nos.1 and 2 are not proper while the other properties were correctly measured, the suit was laid. The defendants were also trying to encroach into the road obstructing enjoyment of his share of properties, by SA 762/98 3 planting trees on the pathway. So, relief was also sought in respect of the pathway. 3. The defendants resisted the suit pointing out that the properties were actually measured by metes and bounds and allotment was thereafter made. According to them, the suit is only an attempt to grab the excess portion of the property found in the possession of the defendants. As per Ext.A1 partition deed, if any allottee was found in possession of excess portion, he could enjoy it and therefore, there was no merit in the submission made by the plaintiff that the property needs to be measured again. On the basis of the above contentions, they prayed for dismissal of the suit. 4. The trial court, on the basis of the above pleadings, raised necessary issues for consideration. The evidence consists of the testimony of PW1 and document marked as Ext.A1 from the side of the plaintiff. The defendants had DWs 1 and 2 examined and no documents were marked from their side. Exts.C1 to C3(a) SA 762/98 4 are commissioner's report and plan. 5. The trial court, on an evaluation of the materials available before it, found that the first defendant had two cents in excess comprised in Survey No.955/18 and also 15 cents in Survey No.956/5. As regards the obstruction to the pathway is concerned, the defendants were directed to cut and remove the trees which were causing obstruction to the way enjoyed by the plaintiff. 6. The aggrieved defendants took up the matter in appeal as AS No.112/1991 before the District Court, North Paravur. The lower appellate court confirmed the decree of the trial court. Hence this second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1. In the absence of a prayer for rectification of mistakes or omissions and for repartition, are the courts below justified in allowing the plaintiff to recover possession of plaint schedule item no.4 property on the strength of title ? SA 762/98 5 2. When the plaintiff's admitted case is that plaint schedule item no.4 property is th excess co-ownership property in the possession of the first defendant, is the suit for mere recovery of possession of ½ of plaint schedule item no.4 without a partition maintainable in law ? 3. Whether or not the courts below are justified in allowing recovery of possession of ½ of one item left out of Ext.A1 partition, assuming that it is so, without the junction of all parties to be deed of partition ? 4. Have not the courts below gone wrong in allowing recovery of possession of 7½ cents, when as per Ext.C1 and C1(a) the excess land in the possession of the first defendant is only 7½ cents and when the plaintiff claimed only ½ of 7½ cents in Survey No.956/6 ? 5. When as per Ext.C1 and C1(a) the excess land in Survey No.956/6 in the first defendant's possession is only 7 ½ cents, whether or not the courts are justified in calling for or relying upon Exts.C2 to C3 for allowing the plaintiffs to recover possession of the entire 7½ cents. SA 762/98 6 6. Have not the courts below gone wrong in calling for Exts.C3 and C3(a) without setting aside Ext.C1 and C1(a). 7. When the way provided in Ext.A1 is along the western extremity of the first defendant's property in Survey No.956/5, are the courts below justified in ignoring the provisions in Ext.A1 and declaring the plaintiff's right of way through the way delineated in Ext.C1(a) and C3(a) which is 4 feet away to the east from the western boundary of the first defendant's property ? 8. The learned counsel for the appellant emphasised that as per the recitals in the partition deed, if any person was found to be in excess of the area than what is allotted to him in the respective survey numbers, that may be enjoyed by him. The learned counsel pointed out that even assuming that two cents was in excess of the land allotted as per Survey No.958/18, that was to compensate the space covered by a thodu lying on the north-western side of his property and also some other water logged areas. As regards the property comprised in SA 762/98 7 Survey No.956/5, it is contended that the property available for partition was 56 cents and as per Ext.A1 document, 28 cents was given to the plaintiff and the remaining 28 cents, to the first defendant. The plaintiff had no case that the extent of property received by him as per Survey No.956/5 was lesser in extent than what was allotted to him and that the first defendant had more extent of land. Drawing attention to the commissioner's report, the learned counsel pointed out that there was no measurement of the property allotted to the parties under Survey No.956/5 and it could not be said that the defendants are in possession of excess land of 15 cents comprised in Survey No.956/5. It is also contended that even assuming that the defendants are in possession of 15 cents in excess, the plaintiff is only one of the co-owners and the suit ought not to have been decreed in favour of the plaintiff. 9. There seems to be some force in the above contention. It is seen from Ext.A1 that the property comprised in Survey No.956/5 was the subject matter of SA 762/98 8 partition. The plaintiff was allotted 28 cents as Item No.5 to A schedule, out of the total extent of 56 cents and the remaining 28 cents was allotted to the first defendant. It is significant to notice that the plaintiff has no case that the extent of 28 cents allotted to him under Survey No.956/5 is not available to him and that he received only a lesser extent at the time of partition even though he was entitled to 28 cents. He has also no case that the balance extent, which he ought to have been received is in the possession of the first defendant. Merely because it is found that 15 cents in Survey No.956/5 is in the possession of the first defendant, it does not automatically follow that the plaintiff is entitled to that property. In fact, the plaint averments are to the effect that except item Nos.1 and 2, all other items are properly measured. It is only after the commissioner's report was received that the plaint was got amended incorporating the relief in respect of the property covered by Survey No.956/5. Going by the commissioner's report and plan, it would appear that the property which was the SA 762/98 9 subject matter of partition comprised in Survey No.956/5 consisting of 56 cents of which 28 cents was allotted to each of the parties must fall on the northern side of the panchayat road. However, going by the boundaries shown in Ext.A1, it is not possible to actually locate the property without a proper sketch. These vital aspects have not been considered by the courts below. Both the courts below were carried away by the fact that the defendants are in possession of 15 cents of land comprised in Survey No.956/5. The courts below had necessarily to consider whether the plaintiff is entitled to any portion thereof. Merely because the defendants are in possession of that property, it does not follow that the plaintiff is entitled to have a share, before confirming the decree of the trial court. Under such circumstances, it is felt that a reconsideration of the matter is necessary as far as Item No.4 is concerned. In the result, this appeal is allowed. The judgment and decree of the courts below are set aside and the matter is remanded to the trial court for fresh SA 762/98 10 consideration of the matter in respect of Item No.4, in the light of what has been stated above and in accordance with law. The parties shall appear before the trial court on 07.07.2011. They will be free to adduce further evidence, if they so choose. Being a suit of the year 1982, the trial court may make every endeavour to dispose of the matter as expeditiously as possible, at any rate, within six months from the date of appearance of parties before court. There will be no order as to costs. P.Bhavadasan, Judge sta SA 762/98 11