IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 FAO.No. 270 of 2009() --------------------- AS.246/2008 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.112/2004 of PRINCIPAL SUB COURT,ATTINGAL .................... 1ST DEFENDANT/1ST APPELLANT: ------------------------------------------------ NOORJAHAN BEEGUM, AGED 54 YEARS, D/O.PATHUMMAL, JISHA LAND, KULAMUTTAM, MANAMPUR VILLAGE. BY ADV. SMT.S.JASMINE SRI.A.ABDUL KHARIM RESPONDENTS: --------------- 1. LAILA BEEGUM, AGED 48 YEARS, D/O.PATHUMMAL, SUMANGALA GARDEN, THALIKONAM, THIRUVANANTHAPURAM, REPRESENTED BY POWER OF ATTORNEY HOLDER LATHEEF STALIN, V.P.2/504, PULAYANAR KOTTA, THIRUVANANTHAPURAM. 2. SHAHUL HAMEED THAHA, AGED 44 YEARS, THEKKEVILA PUTHEN VEEDU, NILAKKAMUKKU, KEEZHATTINGAL VILLAGE, THIRUVANANTHAPURAM. ADV. SRI.P.K.MUHAMMED FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J ----------------------------- F.A.O No.270 of 2009 ------------------------------ Dated this the 22nd day of December, 2009. J U D G M E N T This is an appeal preferred against the order of remand passed by the Second Additional District Judge, Thiruvananthapuram in A.S.No.246 of 2008. The said appeal was preferred against the judgment and decree in O.S.No.112 of 2004 of the Sub Court, Attingal. The suit was one for a declaration of title and possession and for setting aside the judgment and to recover the possession with compensation. The learned Munsiff on consideration of the materials found in favour of the plaintiff and granted a decree declaring the title and possession of the plaintiff over the plaint schedule property and also had set aside the document Ext.B8 as null and void. There was also a direction to surrender vacant possession of the plaint schedule property. Aggrieved by the said decision the first defendant moved the appeal before the District Court, Thiruvananthapuram and the learned Additional District Judge by virtue of his judgment dated 24.8.2009 had remanded the case back to the trial court with certain F.A.O No.270 of 2009 2 directions. It is challenging that decision, the first defendant had come up in appeal. 2. Heard the learned counsel appearing for both sides. The point for determination is really centered round some complicated facts but the resolution can be done in a scientific way, if proper materials are available for the concerned 16 cents of property which belonged to the mother of the first defendant and two others. There were shop rooms as well in that property. By virtue of a settlement deed 4 cents of property with one shop room each was given to all the daughters and there was a reservation clause in the settlement deed with reference to the taking of usufructs in the property and the right to reside in the building. Now the contention of the plaintiff is that out of the 4 cents allotted to her there was a car shed which was converted in to a shop room by the mother as she was away and by virtue of Ext.A2 document, in the year 1989 the mother had relinquished her right in favour of the daughter and thereby the plaintiff has become an absolute owner in possession of the property. It is also the contention of the plaintiff that the mother had inducted one Chellappan Pillai as tenant in the property who had surrendered the same and thereby the plaintiff has got F.A.O No.270 of 2009 3 possessory right over the property as well. But taking advantage of the absence of the plaintiff from the plaint schedule property and the building, it is averred that the first defendant trespassed into the property and had given the property to the second defendant for which the defendant has no manner of right at all. It is also contended that the mother had executed Ext.B8 document in favour of the first defendant and that it is not valid in law and therefore it has to be declared as void. 3. On the other hand the first defendant would contend that the property which is now claimed by the plaintiff does not form a part and parcel of the property allotted to her by virtue of the settlement deed and it continued to be with the mother and the said mother after the construction of shop room therein, had gifted the property in the year 1994 by virtue of Ext.B8 in favour of the first defendant and thereby the first defendant has become the absolute owner in possession of the property. 4. Now the learned appellate judge finds that in order to resolve the dispute between the parties it has become inevitable to find out whether the plaint schedule property forms part and parcel of the property gifted to her by the mother in the year 1963. The F.A.O No.270 of 2009 4 learned judge is of the opinion that unless the plaintiff is able to establish the same, the plaintiff is not entitled to a decree. But it is seen from the discussion that there were previous proceedings between the other parties therein and really the property which belonged to the mother did not have 16 cents. But it is a matter that has to be probed into. Now according to me the whole matter has to be approached in two ways. The first method is as stated by the learned Additional District Judge. In that method it has to be found out whether the plaint schedule property forms part and parcel of the property gifted to her by virtue of 1963 settlement deed. The second way is that in order to gift property in favour of the first defendant the mother should have retained some property with her and then only that property can be transferred in favour of any other person. So the method of approach is to be one, to find out whether the plaint schedule is taken in by the property gifted in favour of the plaintiff by virtue of the settlement deed and the second approach is to find out whether the mother did have any property left out after the execution of the settlement deed. I am elaborating only for the reason that when the property is measured and the total extend of the property does not reach any where near F.A.O No.270 of 2009 5 16 cents, a difficulty may arise in resolving the dispute. Then the question of suffering equally may arise. This is the question of share the land equally may arise. But it is not a subject matter of the suit. The learned counsel appearing for the appellant at my request had given me Ext.B8 document and Ext.A2 document (copies) executed by the mother in favour of the plaintiff. It would not show that the mother had kept any property with her after the settlement deed and it is that right which is surrendered. On the contra, what is seen is that the mother speaks about the reservation with respect to the right of residence and enjoyment of usufructs and at the request of the plaintiff relinquishes that right in favour of the plaintiff. So the mother under Ext.A8 did not have a case that she had any property after the original settlement deed. But when she executed Ext.B8 in favour of first defendant, she would transfer the same as if she is the absolute owner of the property. So the matter requires analysis. So it has to be found that whether plaint schedule forms part of the property assigned to the plaintiff and further whether the mother had any property of her own after the settlement deed. Therefore I add to the order of remand by directing the learned Subordinate Judge to direct the Commissioner to identify the F.A.O No.270 of 2009 6 property with respect to the title deed namely Ext.A1 and demarcate the properties of the plaintiff and the defendant separately to find out whether the plaint schedule forms part and parcel of the properties allotted to the plaintiff in the case. Secondly the Commissioner may be also directed to look into the question on the basis of Ext.A1, whether the mother had left out any property with her after Exts.A1 and B2 documents. Thereafter let the parties be permitted to adduce oral and documentary evidence and the matter be disposed of in accordance with law. The parties are directed to appear before the learned Subordinate Judge on 18.1.2010. F.A.O disposed of accordingly. Sd/- M.N.KRISHNAN JUDGE //True Copy// PA to Judge F.A.O No.270 of 2009 7