IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 AS.No. 538 of 1999(D) --------------------- OS.342/1991 of PRL.S.C.,THALASSERY .................... APPELLANT/DEFENDANT: -------------- ALAKKADAN CHATHU, S/O KRISHNAN, PUTHALATH KUNIYIL, PUTHUR AMSOM, CHENDAYAD DESOM, P.O.CHENDAYAD, THALASSERY TALUK, CANNORE DT. BY ADV. SRI.R. SURENDRAN RESPONDENT(S): --------------- 1. PUTHANPARAMBATH KOROTH VASU, S/O MATHA, SECRETARY, CHENDAYAD KSHEERODPADAKA SAHAKARANA SANGAM, PUTHENPARAMBATH HOUSE, PUTHUR AMSOM CHENDAYAD DESOM, P.O.CHENDAYAD THALASSERY TALUK, CANNORE DT. *(EXPIRED, LR'S IMPLEADED) 2. PUTHANPARAMBATH KOROTH ROHINI, PUTHANPARAMBATH HOUSE, PUTHUR AMSOM, CHENDAYAD DESOM, THALASSERY TALUK, CANNORE DISTRICT * (ADDITIONAL R3 TO R6 IMPLEADED) 3. PUTHENPARAMBATH VASANTHA, W/O LATE VASU AGED 45 YEARS, PUTHUR AMSOM, CHENDAYAD DESOM, P.O.CHENDAYAD, VIA PANOOR, THALASSERY, KANNUR DISTRICT. 4. BADISHA P.P., D/O LATE VASU AGED 20 YEARS --DO-- 5. VILSI.P.P., D/O LATE VASU, AGED 19 YEARS, --DO-- 6. DANESH P.P. S/O LATE VASU AGED 18 YEARS, --DO-- THE ABOVE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT WERE IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 6 VIDE ORDER DATED 02.08.2011 IN IA 2327/10 BY ADV. SRI.V.V.ASOKAN & SRI.K.I.MAYANKUTTY MATHER THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KKJ P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - A.S.No. 538 of 1999 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of November, 2011 J U D G M E N T The defendant who suffered a decree at the hands of trial court in O.S.No.342 of 1991 are the appellants. 2. The parties and facts hereinafter referred to as they are available before the trial court. 3. The suit initially one for injunction was converted to one for recovery of possession on the strength of title. The plaint schedule properties are comprised in Sy.No.151/1 consist of two items. It originally belonged to one Vakra from whom by Ext.A1 who by Ext.A1 dated 20.09.1918 Vellan Chathu took the property under kuzhikanam. Chathu is the grandfather of the plaintiffs and defendants. The father of the plaintiffs was Pottan @ Kunhiraman and the father of the defendant was Krishnan. The property acquired by Chathu by Ext.A1 was a subject matter of arrangement evidenced by Ext.A2 dated 20.08.1931. The kuzhikanam right holder under Ext.A2 executed Ext.A3 in :2: A.S.No. 538 of 1999 23.12.1937 in favour of Pottan alias Kunhiraman the predecessor in interest of the plaintiffs. It is claimed by the plaintiffs that even while Chathu was alive, Kunhiraman was in possession of the plaint schedule properties. It is further alleged that plaint schedule properties were lying within well defined boundaries from the rest of the properties. Pointing out that the defendant had trespassed into a portion of the plaint A schedule property, which is shown as plaint B schedule, the suit was laid. 4. The suit was resisted by the defendants. It is pointed out that the plaint description is incorrect and the intention of the plaintiffs was to usurp properties belonging to the defendant. Kunhiraman died on 06.07.1984. It was contended on behalf of the defendant that his father Krishnan got plaint B schedule property as per registered Will dated 25.11.1945. As per the Will there are 8 schedules of properties which were given to various persons. E schedule of the Will containing 7 items of :3: A.S.No. 538 of 1999 properties which were given to Krishnan. According to the defendant the plaint Schedule property is a portion of property obtained by him as per gift deed of his father. Pointing out that the plaintiff had no manner of right, he prayed for the dismissal of the suit. 5. On the basis of above pleading issues were raised. The evidence consist of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A12 from the side of the plaintiffs. The defendant had DWs 1 to 3 examined and documents B1 to B15 marked. 6. On an appreciation of the evidence, the trial court had found that the plaintiffs had succeeded in establishing their title to the plaint B schedule property and accordingly granted a decree in their favour. The said decree is assailed in this appeal. 7. The question that arises for consideration is whether the lower court was justified in granting a decree in respect of plaint B schedule property in favour of the :4: A.S.No. 538 of 1999 plaintiffs. 8. The learned counsel appearing for the appellant pointed out that the court below clearly erred both in law and on facts in decreeing the suit. The definite contention of the defendant was that the property shown as plaint B schedule is a portion of the property which his father had obtained as per the Will of Chathu. It was without properly identifying the property that the decree has been passed. Attention was drawn to the fact that, as per the Will, B schedule properties were given to Kunhiraman. E schedule properties were given to Krishnan the predecessor in interest of the defendant. It is pointed out that the plaintiffs who obtained two items of properties which comprised in Sy.No,151/1 had sold a portion of the property to one Govindan and therefore the plaintiffs could have only the balance extent of property with them in that Sy.No. The learned counsel also pointed out that initially the Sy.No. was shown as 151/1 and after the commissioner's report :5: A.S.No. 538 of 1999 was obtained, the plaint was amended to alter the Sy.No. as 150/1 and so also the boundaries. The court below, according to the learned counsel, was wrong in accepting the identification made by the commissioner which could easily seen to be erroneous. Pointing out that there has been no proper identification, the learned counsel went on to content that the decree was clearly unsustainable in law. 9. Per contra, the learned counsel appearing for the respondent pointed out that the court below has considered all the aspects and it was found that the commissioner has been able to identify the property in terms of the documents produced by the parties and also as seen on site. No grounds are made out to interfere with the decree of the trial court, so says the counsel. 10. After having heard the counsel on both sides and after going through the records, this Court finds it extremely difficult to sustain the decree of the trial court. Ext.A11 is the Will of Chathu. In Ext.A11, B schedule items :6: A.S.No. 538 of 1999 are allotted to Kunhiraman, predecessor in interest of the plaintiffs. As far as this case is concerned, what is relevant is item No.2 in plaint B schedule, the measurement of which is 45X60. One may also notice the boundaries of the property. Item No.3 has a measurement of 35X40. No Sy.No. is seen mentioned in Ext.A11. It is a portion of this item, which is the subject matter of the suit. The claim of the plaintiffs is that the plaint schedule is a portion of the plaint A schedule and the defendant had trespassed into their property. 11. Ext.A1 is the document by which Chathu obtained the property. It consist of 2 items of properties having measurements 45X60 and 35X40. Ext.A2 is a document executed by Chathu in favour one Chathu and Katuthon dated 20.08.1931 of a portion of the property obtained under Ext.A1. The measurements of two items shown in the said document are 69X43 and 49X43. It could be seen that in fact the property covered by Ext.A2 is a larger extent :7: A.S.No. 538 of 1999 than what is got by Chathu as per Ext.A1. By Ext.A3 dated 23.12.1937 Katuthon and Chathu executed documents in favour of Kunjiraman, the predecessor in interest of the plaintiffs in respect of the properties obtained by them under Ext.A2. 12. The learned counsel appearing for the respondent pointed out that, in fact the plaintiffs claimed item No.2 as in Ext.A3 and the measurements shown in there are correct and the measurements shown in the Will may not be quite correct. It is an admitted fact that out of the properties obtained by Kunhiraman under the Will as per B schedule of the property an extent of nearly 2 acres have been sold to one Govindan. It would appear from the records that property that is sold to Govindan is from Sy.No.150/1. The commissioner has identified the properties of the plaintiffs in Sy.No.151/1. 13. On going through Exts.C6 and C7 reports, it is not possible to understand as to how the commissioner has :8: A.S.No. 538 of 1999 identified the properties. On verifying the boundaries in commissioner’s plan and report with Ext.A1, A2, A3 and A11, it is virtually impossible to identify the properties from the plan and report prepared by the commissioner. Obviously, as already noticed, the plaintiffs could have only balance extent of property left after having sold a certain extent to Govindan. What was necessary was to identify the property obtained by the plaintiff as per Ext.A1 to A3 or A11 as the case may be and then identify the property that is sold to Govindan and ascertain the extent of property available to them. It is only thereafter the property which has been trespassed could have been identified. 14. The defendant has a case that the plaintiffs did not have any property in Sy.No.151/1 and their property was comprised in Sy.No.150/1. In fact a perusal of the commissioner’s report now produced would show that the plaintiffs have property in Sy.No.151/1 also. 15. The court below has simply accepted the :9: A.S.No. 538 of 1999 commissioner’s report and has jumped into the conclusion that that the plots shown as BCEF is the property which has been trespassed upon by the defendant. In spite of the best efforts made by this Court, it is impossible to understand how the identification has been made by the commissioner. The trial court also not does deal with this aspect at all. From the pleadings it is very clear that the core issue was the identification of the property which the plaintiffs obtained as per Ext.A11 and which after the sale to Govindan, retained with them. These vital aspects have been omitted to be noticed by the court below and commissioner report is of no help in this regard. In the result:- This Court is unable to sustain the judgment and decree of the trial court and it is necessary to be set aside. Accordingly this appeal is allowed, the impugned judgment and decree are set aside and the matter is remanded to trial court for fresh consideration in accordance with law and in the light of what has been :10: A.S.No. 538 of 1999 stated above. The parties shall appear before the lower court on 16.12.2011. The lower court may make every endeavour to dispose of the suit, as expeditiously as possible, at any rate, within a period of 9 months from the date of appearance of the parties. There will no order as to costs. P.BHAVADASAN, JUDGE KKJ