IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 AS.No. 620 of 1998() ------------------------- OS.17/1997 of DISTRICT COURT, LAKSHADWEEP .................... APPELLANT(S)/PLAINTIFF IN THE COURT BELOW --------------------------------------------------------- DEVANIGOTHI AMINABI, AGED 49 YEARS, D/O. HITHIGE DHOMBEBE, MINICOY. BY ADVS. SRI.P.S.USUPH SRI.P.U.ZIYAD RESPONDENT(S)DEFENDANT IN THE COURT BELOW ------------------------------------------------------------- DEVANIGOTHI AYSHA, AGED ABOUT 58 YEARS, D/O. MAVADAGOTHI HASSAN, MINICOY R1 BY ADVS. SRI.P.K.ABOOBACKER SRI.M.M.ABBAS ALI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 620 OF 1998 = = = = = = = = = = = = = = = Dated this the 14th day of October, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the District Judge, Lakshadweep in O.S.17/97. The suit is one for settlement of boundaries and injunction. It is the case of the plaintiff that the property comprised in Sy.No.161/24 where house named Devanigothi Boduge is situated belonged to the mother of the plaintiff namely Kaddha and defendant's mother Pathumma jointly. According to her they divided the property orally and plaint schedule portion was allotted to the plaintiff's mother and the other portion was allotted to Pathumma. The plaintiff's mother by virtue of the document No.21/72 had assigned her right which was obtained under the oral A.S. 620 OF 1998 -2- partition in favour of the plaintiff and therefore the plaintiff is claiming right over that property. It is also contended that as per the proceedings in S.C.172/77 the settlement officer had found that the ownership of the house in Sy.No.161/24 has to be confirmed in the name of the plaintiff as well as the defendant's mother. Therefore the suit is filed. 2. The defendant on the other hand would submit that the plaintiff is not entitled to any relief. The property described in the plaint schedule property belonged to the defendant exclusively and therefore the plaintiff is not entitled to any fixation of boundaries. It is admitted that there had been an oral partition between the mother of the plaintiff and the mother of the defendant. The property described in the plaint schedule property was set apart to A.S. 620 OF 1998 -3- the share of the mother of the defendant and therefore the defendant is entitled to the property and the plaintiff with her family are residing in a neighbouring plot and so the suit is liable to be dismissed. 3. In the trial court PW1 and DW1 were examined. Exts.A1 to A3, B1 to B3 and C1 to C3 were marked. On an analysis of the evidence the trial court has dismissed the suit. It is against that decision the plaintiff has come up in appeal. 4. Heard the learned counsel for the appellant and the young counsel for the respondent. At the out set it has to be stated the suit is one for settlement of boundaries. So unless there is possession attached it may not be possible to fix the boundaries and title also becomes relevant. Now even according to A.S. 620 OF 1998 -4- the document Ext.A2 which is relied upon by the plaintiff to declare the joint entitlement over the property in Sy.No.161/24 there is a finding recorded by the settlement officer that the plaintiff's mother had been put out of possession. Now the crux of the matter is that what was the properties that were allotted to the mother of the plaintiff and the mother of the defendant in a oral partition which is said to be taken between those two sisters. If the plaint schedule property forms part and parcel of the property allotted to the mother of the plaintiff under the oral partition, then necessarily the mother will get the right to assign that property or gift that property in favour of her daughter which will also entitle her to get right over the property. Now the contention of the defendant is that there had A.S. 620 OF 1998 -5- been an oral partition between the sisters but it is specifically stated that the plaint schedule property was set apart to her share of the mother of the defendant and therefore the plaintiff's mother did not have any title to the property and so a subsequent gift or assignment in favour of the plaintiff will not confer on her any title. The Court below had also found that there is no positive evidence adduced by both the sides to the effect that which are the properties that are set apart to these sisters. Only on a finding on that there would be a proper resolution of the dispute between the parties. 5. Now as I held earlier the whole question is in a liquid state and with these materials it may not be possible to settle the dispute between the parties by fixing the boundaries of A.S. 620 OF 1998 -6- the property. The very important question of entitlement of the plaintiff over the property is the larger question to be decided. Only when that larger question is decided a relief can be granted. Therefore the plaintiff may have to institute a proper suit for declaration of her title and for recovery of possession, if so advised. Leaving open that to the plaintiff I dismiss this appeal for the reason that the relief sought for cannot be granted in this suit. Parties are directed to bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 620 OF 1998 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.620 OF 1998 = = = = = = = = = = = J U D G M E N T 14th October, 2010.