IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 AS.No. 507 of 1995() ----------------------------- OS.20/1991 of SUB COURT, QUILANDY .................... APPELLANT(S): RESPONDENT -------------------------------------------- STATE OF KERALA. BY GOVERNMENT PLEADER SRI.T.K.SAJEEV RESPONDENT(S): CLAIMANT ------------------------------------------ KOODATHAN KANDY MAMMU, S/O. KUNHAMMAD, TRADER, CHANGAROTH AMSOM, AVUDAKKA DESOM, QUILANDY. 2. KOODATHANKANDY PAREETH, S/O. KUNHAMMAD, AGED 39 YEARS, TRADER, DO. DO. R1 BY ADV. SRI.D.KRISHNA PRASAD, SRI.JOJI VARGHESE SRI.D.NARENDRANATH, HARISHARMA M. R2 BY ADV. SRI.C.P.D.NAIR. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ------------------------- A.S. No.507 of 1995 ------------------------------------- Dated this the 23rd day of September, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Quilandy in O.S. No. 20/1991. The suit is one for recovery of possession on the strength of title and the trial Court has granted a decree in favour of the plaintiffs. It is against that decision the state government have come up in appeal. 2. Heard the learned counsel for both sides. The brief facts necessary for the disposal of the appeal are stated as follows: It is the case of the plaintiffs that by virtue of registered document executed by Ulahannan, plaintiff had purchased property, which is really having an extent of 2.5 acres, whereas the extent is shown as 2.11½ acres. There is a clear demarcation of the boundary for the plaint schedule property and defendant government, without proper recourse to law had reduced A schedule into their possession and therefore, plaintiffs have filed a suit for recovery of possession of A schedule property on the strength of title. A.S. No.507 of 1995 2 3. Defendants would contend that the plaintiffs does not have any title to A schedule property and it is a governmental property and the Sub Collector, Kozhikode had taken up appropriate proceedings and thereby had recovered the unauthorized possession of the government land by the plaintiffs. It is also submitted that the plaintiffs are not entitled to the decree prayed for. 4. Now inorder to have a proper evaluation and disposal of the mater, the following facts have to be crystallized and found out. One Ulahannan was granted 9.08 acres of property in lieu of the acquisition of land from him for the purpose of Kuttiyadi Irrigation Project. This Ulahannan had continuously sold the property and there is a contention that he had sold 10 acres and 38 cents of property to different persons of whom one person is the plaintiff. Now in order to properly resolve the dispute between the parties, it would be absolutely necessary to find out the 9.08 acres of land assigned by the government to Ulahannan. When that property is demarcated and the property obtained by the plaintiff is identified and if it is found that the A.S. No.507 of 1995 3 plaint B schedule property forms part and parcel of that 9.08 acres of land, then necessarilly Ulahannan has the title to sell the property and the plaintiff had obtained right over the property and therefore A schedule, which is the part of B schedule cannot be recovered by the government from the possession of the plaintiff. So that must have been the direction in which the court should have proceeded to arrive at a conclusion. But unfortunately what had happened in this case is only the property of the plaintiff with respect to her title deed has been attempted to be demarcated. In that attempt it had found that the plaintiff is only having possession of less than 2.09 acres of land. If it is correct and if it comes under Ulahannan's property then case of the plaintiff would have been easily resolved. But when advertintg to the main point the finding of the court below that since the plaintiff is only having 2.09 acres, she is entitled to recovery of plaint A schedule property is not proper and correct and therefore, the decree and judgment of the trial court requires interference and they are set aside and the matter is remitted back to the trial court for consideration: A.S. No.507 of 1995 4 i. The Judgment and decree of the trial court are set aside. ii. The trial Court is directed to instruct the plaintiffs and defendants to take out a commission and identify the property of 9.08 acres assigned by the government in favour of Ulahannan. iii. After demarcating that 9.08 acres, the Commissioner shall find out whether the plaint B schedule property which takes in A schedule property is part and parcel of that 9.08 acres. iv. For this purpose the trial Court is directed to appoint a commission and plaintiffs as well as the state government can bear equal expenses for doing the same and the government shall make available the records relating to the assignment of 9.08 acres to Ulahannan so as to properly identify the property. v. For this purpose surveyor's assistance shall be also rendered to the commissioner and the commisioner to be appointed must be a senior counsel well versed on the civil side. vi. After the filing of the commissioner's report, the parties be permitted to adduce the oral evidence in support of their respective contentions and then the mater be disposed of in accordance with law. A.S. No.507 of 1995 5 vii. Parties are directed to appear before the trial court on 21.10.2010. Parties are directed to bear their respective costs in the appeal. M.N.KRISHNAN, JUDGE ln