IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 AS.No. 367 of 1999() ----------------------------- OS.665/1993 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S): PLAINTIFF ------------------------ V.SUSEELAN, AGED 62, S/O. VASUDEVAN, ''CHANDRASARASSU'', KARIKKATH LANE, THRISSUR. BY ADV. SRI.C.CHANDRASEKHARAN SRI.M.UNNIKRISHNA MENON RESPONDENT(S): DEFENDANT ------------------------- T.P. UNNIKRISHNAN, AGED 33, S/O. THASHNATH PUSHPANGADAN, PERUMPRADAPPU DESOM, CHENTHRAPPINNI AMSOM, KODUNGALLUR TALUK. BY SRI.C.C.THOMAS, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== A.S. No.367 OF 1999 ===================== Dated this the 24th day of May 2010 JUDGMENT This appeal is preferred against the judgment and decree of the I Addl.Sub Court, Thrissur in O.S.No.665 of 1993. The short facts necessary for the disposal of the appeal are stated as follows: The suit is one for declaration and recovery of possession. It is the case of the plaintiff that he had purchased 2.350/1000 cents of land by virtue of Ext.A1 document which is a property used as a passage to A schedule property and he alone is having absolute right and interest over the property and therefore he prays for the reliefs. 2. On the other hand, the defendant would contend that the plaintiff has no manner of right over the property and therefore the suit is liable to be dismissed. The learned trial Judge on the basis of a clause in Ext.B1 partition deed came to the conclusion that persons who had assigned the property did not have any right over the property and therefore it will not confer any title on the plaintiff and therefore the plaintiff is not entitled to the relief as prayed for. AS 367/1999 -:2:- 3. I had perused Exts.B1 and A1. The learned Sub Judge has not properly considered the impact of these documents correctly. Ext.B1 partition deed is of the year 1957 entered into between Vaidyanatha Iyer, his children and the second wife. It is necessary to state their names for the reason that it has relevance while considering Ext.A1 document. Executant No.1 is Vaidyanatha Iyer(E1), E2 Narayanaswami, E3 Ananthakrishnan, E4 Viswanathan, E5 Ramanathan, E6 Radhakrishnan and E8 Kamalammal. As per the recitals in Ext.B1 at page 12, it is stated that when executants 3 to 6 are constructing house in the property alloted to them, from the property alloted to E7 and E8 these persons will have access as a passage and for the said purpose the said passage has to be left out freely. So, the property alloted to E7 and E8 in Ext.B1 is encumbered with such a right and therefore until and unless the people to whom those rights had conferred had relinquished their rights when their right was in existence and then nobody will get the right to transfer that property. Now, I will straight away refer to Ext.A1. Ext.A1 is an assignment deed executed by E2, E3, E4, E5 and E6 in Ext.B1 in favour of the present plaintiff. So a reading of Ext.A1 would indicate that the persons to whom the right had been conferred had transferred their right in favour of the plaintiff. So, if they had retained that right over the property alleged to have obtained at the time of the AS 367/1999 -:3:- assignment deed necessarily and naturally they are entitled to transfer the right which had been conferred upon them under Ext.B1. But, unfortunately the court has not considered nor the parties had produced any materials to show regarding this aspect on the date of assigning Ext.A1. So the matter requires further consideration by the court below. Therefore the court while dealing with Ext.B1 has also to construe Ext.A1 to arrive at a decision regarding the subsistence of the right of the person over the property. Therefore the judgment and decree under challenge are set aside and the matter is remitted back to the court below for fresh consideration after permitting the parties concerned to produce both oral and documentary evidence in support of their respective contentions and then dispose of the matter in accordance with law. The question of adverse possession and limitation raised by the defendant also be considered by the court below. Parties are directed to appear before the court below on 3.7.2010. Parties are directed to bear their respective costs. The court fee paid on the memorandum of appeal be refunded to the appellant. M.N.KRISHNAN, JUDGE Cdp/-