IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 CMA.No. 223 of 1999() --------------------- AS.887/1994 of SUB COURT,NEYYATTINKARA OS.1094/1990 of PRL.M.C.,NEYYATTINKARA .................... APPELLANT/6TH RESPONDENT/8TH DEFENDANT -------------- LAISAL OMANA, PANACHANINNA PURAYIDOM, KOTTUKAL DESOM, KOTTUKAL VILLAGE. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS/APPELLANT & RESPONDENTS 1O 5/ PLAINTIFF & DEFENDANTS 1 TO 5) --------------- 1. SIVADASI, S/O.KUNJILEKSHMI, SREESADANAM, VELLAYAMBALAM, EDAPAZHINJI, SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM 2. VELAYUDHAN NADAR GOPALAN NADAR, VADAKKARIKU VEEDU, PANACHANINNAVILA, KOTTUKAL DESOM. 3. GOPALAN NADAR RAJAYYAN NADAR VARUTHATTU CHARUVILA VEEDU, OF -DO- 4. GOPALAN NADAR MADHAVAN NADAR, VADAKKARIKU VEEDU, PANACHANINNAVILA VEEDU OF -DO- 5. KALYANI VASANTHA OF -DO- 6. LAISAL RAJAM, OF -DO- ADV. SRI.ELVIN PETER P.J. FOR R1 THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ C.M.A.NO.223 OF 1999 ------------------------------------------ Dated 27th February 2009 JUDGMENT Eighth defendant in O.S.1094/1990 on the file of Munsiff court, Neyyattinkara who is the sixth respondent in A.S.887/1994 on the file of Sub court, Neyyattinkara is the appellant. First respondent was the appellant who is the plaintiff in the suit and other respondents are defendants 1 to 5 who were the other respondents in the appeal. Suit was filed for declaration of right, title and possession of first respondent over item No.2 of plaint schedule properties and permanent prohibitory injunction restraining defendants from trespassing into the property and for demarcation of item No.2 of plaint schedule property after identifying item No.1 of plaint schedule property. Item No.1 of plaint schedule property is described as a portion of 16.71 acres in survey No.478/1B of Kottukal village. Item No.2 of plaint schedule property is 72¾ cents being part of item No.1 inclusive of 47 cents and 25¾ cents. Case CMA 223/99 2 of the first respondent was that item No.1 originally belonged to Raman Easwaran who under Ext.A2 Ottikuzhikanam deed of 1061 M.E and a purakkadam deed of 1065 M.E transferred the property in favour of Raman Podiyan and after his death it devolved on his son Madan Nadar and Madan Nadar executed a gift deed in favour of his children Kuttichinna, Kuttiparvathy and Kesavan and later Kuttichinna executed a gift deed transferring her 1/3rd right in favour of Narayani and Ponnumuthan and later the remaining 2/3rd right was gifted in favour of respondents 2 and 6 (defendants 1 and 5) and later under Ext.A3 partition deed, properties were divided between defendants 1, 5, Narayani and Ponnumuthan and A schedule property was allotted to first defendant, B schedule property to 5th defendant and C schedule property to Narayani and Ponnumuthan and later under Ext.A9 sale deed of 1971 first respondent obtained the said right. It was contended that in addition to the extent shown in Ext.A9 sale deed, the assignees have been in possession of 20 cents of land adjacent to the property which was given to them by Kuttichinna and even though several proceedings were initiated before the Tahsildar for assignment of Kandukrishi land by CMA 223/99 3 the predecessor in interest of first respondent, it was not granted in respect of the excess land but first respondent obtained right and possession of excess land also and thus item No.2 of the plaint schedule property has been in possession of first respondent. A decree was thus sought in respect of the said property. Only 5th defendant had filed a written statement. 5th defendant contended that there was no excess land which was granted to Narayani and Ponnumuthan and though Narayani and Ponnumuthan along with defendants 1 and 5 sought excess land being Kandukrishi land the claim was ultimately rejected and therefore parties have right over only the property divided under Ext.A3 partition deed and first respondent could claim only the property obtained by the assignees under Ext.A3 and not any excess land and therefore first respondent is not entitled to a decree in respect of item No.2 of the plaint schedule property and the suit is only to be dismissed. 2. Learned Munsiff on the evidence of Pws.1 to 3, Exts.A1 to A14 and C1 and C1(a) dismissed the suit. First respondent filed A.S.887/1994 challenging the decree and judgment before Sub court, Neyyattinkara. CMA 223/99 4 Learned Sub Judge on appreciation of evidence found that defendants as well as plaintiff are claiming right under Ext.A3 partition deed and though learned Munsiff relied on Ext.C1 report and C1(a) plan, evidence establish that properties were not identified with reference to the description and description in Ext.A3 and therefore there was no proper identification of the property. Learned Sub Judge found that in such circumstances, before deciding the question the properties are to be identified and hence set aside the judgment and remanded the suit for fresh disposal after proper identification. The Munsiff was directed to remit the report back to the Commissioner, if the Commissioner is available or to appoint another commission with a direction to identify the properties with reference to Ext.A3 partition deed. Appeal is filed challenging the remand. 3. Learned counsel appearing for appellant and first respondent were heard. 4. Learned counsel appearing for appellant argued that item No.1 is the entire property and item No.2 is part of the property claimed by the first respondent and apart from the property gifted to the assignees of appellant viz., Narayani and Ponnumuthan CMA 223/99 5 under Ext.A9, the donor Kuttichinna had also transferred excess land to the donees and right and possession of that property was also obtained by the plaintiffs. But Exts.A3 and A9 disprove that case. It was argued that when there is no evidence to prove that claim under Ext.A3 partition deed Narayani and Ponnumuthan were in possession of that property and when there is no evidence to substantiate the right over the excess land, first appellate court should not have remanded the suit for fresh disposal. Argument is that Ext.A10 appeal memorandum challenging dismissal of the claim for assignment of Kandukrishi land, which was admittedly settled finally against the parties, establish that excess land is not available and therefore there is no justification for a remand and the order of remand is unsustainable. 5. Learned counsel appearing for first respondent pointed out that the suit is for fixation of the property obtained by first respondent under Ext.A9 sale deed and declaration of possession was also sought and therefore, learned Sub Judge was justified in remanding the suit as there was no proper identification of the properties. It is therefore argued that there is CMA 223/99 6 no reason to interfere with the order of remand. 6. Both first respondent/plaintiff and appellant and other defendants are claiming right over the properties, which originally belonged to Raman Eswaran and subsequently vests with Raman Podiyan and later transferred by his son Madan Nadar in favour of Kuttichinna, Kuttiparvathi and Kesavan as per a gift deed. It is also admitted case that out of the properties so obtained by Kuttichinna her 1/3rd right was assigned in favour of Narayani and Ponnumuthan and the remaining 2/3rd right was gifted in favour of defendants 1 and 5. It is also admitted case that under Ext.A3 partition deed the property obtained by Kuttichinna and gifted in favour of defendants 1 and 5, Narayani and Ponnumuthan, were divided by the donees in 1956. As schedule A, 52.75 was allotted to first defendant, as schedule B 52.75 was allotted to 5th defendant and 52.75 cents was jointly allotted as schedule C to Narayani and Ponnumuthan. It is the said property obtained by Narayani and Ponnumuthan under Ext.A3 partition deed, first respondent obtained assignment under Ext.A9. It is under Ext.A3 title to item No.2 of plaint schedule property is claimed. In CMA 223/99 7 addition, first respondent had claimed excess land on the contention that Kuttichinna has been in possession of excess land. Learned counsel appearing for appellant argued that as there is no evidence to prove that the assignees of first respondent has been in possession of any excess land, the claim is not sustainable. Learned counsel also argued that Ext.A10 appeal jointly filed by the assignees of first respondent and defendants 1 and 5 establish that though they raised a claim for excess land as Kandukrishi land, it was not rejected and therefore first respondent cannot claim any right over any excess land. 7. Learned counsel appearing for first respondent pointed out that Ext.A12 judgment in O.S.145/1971 and Ext.A13 judgment in A.S.316/1978, its appeal establish the right over excess land and in the suit declaration of possession was also sought and in such circumstances identity of the property is a must and so the order of remand is justifiable. 8. Ext.A12 judgment in O.S.145/1971 shows that it was a suit instituted by Kuttiparvathy along with Velayudhan Nadar Govindan Nadar against Madan Nadar and 12 others. First defendant was Kesavan CMA 223/99 8 Nadar, brother of Kuttiparvathy and Kuttichinna and second defendant was first defendant Valayudhan Nadar Gopalan Nadar. Fifth defendant was first respondent herein the plaintiff in the suit. That suit was filed by Kuttiparvathi along with Govindan Nadar claiming declaration and injunction contending that Kesavan Nadar, though obtained registry in respect of 4 acres 6 cents has only right over 3 acres 70 cents and remaining property is Kandukrishi Thanathu and that property jointly belonged to the children of Madan Nadar. Ext.A12 judgment shows that children of Madan Nadar were in possession of excess land. But the suit was dismissed as registry stands in the name of first defendant. Ext.A13 judgment shows that appeal filed by the plaintiff challenging dismissal of the suit was dismissed with liberty to the plaintiff to pursue the proceedings initiated by them before the Government for cancelling the registry in favour of first defendant. It is based on this, learned counsel appearing for first respondent argued that parties have been in possession of excess land and even if first respondent has no title to the excess land, he is entitled to get a declaration of possession in respect of the excess land. CMA 223/99 9 9. Learned Sub Judge on the evidence found that properties were not identified with reference to Ext.A3 partition deed. As rightly found by the Sub Judge, dispute can finally be resolved only after properly identifying the property. It is in such circumstances, suit was remanded. As property was not identified, the remand of the suit was justified. Question whether first respondent is in possession of excess land than what was allotted to his assignees under Ext.A3 partition deed could finally be settled, only after proper identification of the property. In such circumstances, I find no reason to interfere with the order of remand. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. CMA 223/99 10 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT CM.A.NO.223 OF 1999 27th February 2009 ============================