IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 SA.No. 559 of 1997(G) -------------------------------- AS.75/1989 of SUB COURT, CHERTHALA OS.374/1985 of ADDL.MUNSIFF COURT, CHERTHALA .................... APPELLANT(S): 4TH RESPONDENT/4TH DEFENDANT --------------------------------------------------------------------------- UNNIKRISHNAPPAN, RESIDING AT VRINDAVANATHIL FROM ANJALICHIRAYIL, CHERTHALA SOUTH MURI. BY ADVS. SRI.B.KRISHNA MANI SRI.K.SUBASH CHANDRA BOSE SRI.V.PREMCHAND RESPONDENT(S): APPELLANT/PLAINTIFF/RESPONDENTS 1 TO 3, DEFENDANTS ----------------------------------------------- 1 TO 3 1. KUTTY AMMA SAVITHRY AMMA, RESIDING AT PUTHEN VELIYIL, CHERTHALA SOUTH VILLAGE, DO. MURI, DO VILLAGE. 2. SHERTHALLAI SOUTH SERVICE CO-OPERATIVE BANK LTD., NO.1344 SHERTHALLAI SOUTH P.O. 3. DO. REPRESENTATED BY ITS SECRETARY RAGHAVA PANICKER, RESIDING AT MANGALATH, CHERTHALA SOUTH MURI. 4. DO. REP.BY ITS PRESDIDENT T.A. KOCHUKUTTAN RESIDING AT THEKKE MADATHIL, SOUTH MURI. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 559 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of August, 2010. JUDGMENT The defendant in O.S.374 of 1985 is the appellant before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for recovery of possession on the strength of title and other reliefs based on Ext.A1 partition deed of the year 1965. The short case put forward by the plaintiff was that the defendants had trespassed upon one and a half cents of property, which he had obtained under the partition deed and he was entitled to recover the same. 3. The defendants resisted the suit by pointing out that one and a half cents of property form part of the property obtained by him under the partition deed and the plaintiff had no manner of right over the suit property. He therefore prayed for a dismissal of the suit. S.A. 559/1997. 2 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of Exts.A1 to A9 marked from the side of the plaintiff and Exts. B1 to B4 from the side of the defendants. Ext.C1 is the commission report. Neither side adduced any oral evidence. 5. The trial court, finding that there was no identification of the property, dismissed the suit. Plaintiff carried the matter in appeal. The appellate court allowed the appeal and reversed the judgment and decree of the trial court and decreed the suit as prayed for. It is the said judgment and decree that are assailed before this court. 6. The following questions of law have been formulated in the Memorandum of Second Appeal: “(i) Whether the plaintiff is entitled to get a decree of declaration and recovery of possession without identifying the plaint schedule property? S.A. 559/1997. 3 (ii) Whether the lower appellate court was justified in accepting documents in evidence including the commissioner's report in a prior suit without examining the parties thereto? (iii) Whether the plaintiff entitled to get a decree of declaration of title and recovery of possession when it is clear that the plaint?” 7. Learned counsel appearing for the appellants pointed out that it is without identifying the property, that is alleged to have been trespassed upon, that the decree has been granted by the lower appellate court. That is not in accordance with law. All that is produced is a report and plan in the earlier suit, which has nothing to do with the present suit. According to learned counsel, the portion trespassed upon might be the portion of the property which was involved in the earlier suit. But unless that is identified, a decree could not have been granted. There was no attempt from the side of the plaintiff to have the plaint S.A. 559/1997. 4 schedule property identified. Therefore, it is contended that the decree of the lower appellate court is unsustainable in law. 8. Learned counsel appearing for the respondents submits that there have been previous litigations between the parties and a report and plan prepared in the earlier suit had been produced in the present suit. It is a portion of that property that was trespassed upon. The lower appellate court was able to identify the property and therefore there is no illegality or irregularity in the judgment and decree passed by the lower appellate court. 9. After hearing both sides and going through the records, I find considerable force in the contention raised by the learned counsel for the appellant. Inspite of best efforts, it is not possible to locate the property that was alleged to have been trespassed upon, in respect of which a decree had been granted by the lower appellate court. It is true that the plaintiff had produced a plan and report in a previous suit. But that was in relation to 53 cents of land. S.A. 559/1997. 5 The lower appellate court has extracted the details of the schedule, namely, the boundary of the property. Unfortunately, it does not tally with the plaint at all. Plaint description is something else. The trial court dismissed the suit on the ground that the property was not identified and therefore one fails to understand as to how without a proper plan and report, a decree could have been granted. The lower appellate court does not appear to have applied its mind to the materials on record and the matter needs a reconsideration. In the result, the judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh disposal in accordance with law and in the light of what has been stated above. Parties shall appear before the lower appellate court on 8.9.2010. The lower appellate court shall try to dispose of the suit as expeditiously as possible, at any rate within a S.A. 559/1997. 6 period of six months from the date of appearance of parties. There will be no order as to costs. Office shall send back the records forthwith. P. BHAVADASAN, JUDGE sb.