IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 CMA.No. 197 of 2000() --------------------- AS.190/1996 of SUB COURT, NEDUMANGAD OS.524/1986 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S)/RESPONDENTS 3 TO 4,7,9,10,11 AND A.S. 190/96: -------------------------------------- 1. MARIYAM BEEVI, MUKKUVILAKATHU VEEDU, AMACHAL MURI, KULATHUMMAL VILLAGE. 2. PEERUKANNU ABDUL SALAM, KANJIRAMAVILAKATHU VEEDU, -DO- -DO- 3. KHANEEFA OF -DO- -DO- 4. SHAREEFA BEEVI, OF -DO- -DO- 5. HARIFA BEEVI, OF -DO- -DO- 6. KHADEEJA BEEVI OF -DO- -DO- BY ADVS. SRI.G.S.REGHUNATH SRI.BASAND BALAJI RESPONDENT(S)APPELLANT & 6, 8 RESPONDENTS: -------------------------------------- 1. JOSHVA NADAR LAZAR NADAR, KANJIRAMVILAKATH VEEDU, AMACHAL, KULATHUMMAL. 2. KULUSAM BEEVI SAINABEEVI, THRIKKARTHIKAVILA PUTHEN VEEDU, AMACHAL, KULATHUMMAL. 3. ALIKANNU, KANJIRAMVILAKATH VEEDU -DO- -DO- 4. NASEEMA , OF -DO- -DO- ADV. SRI.K.SATHEESH KUMAR FOR R1 THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.M.A.NO. 197 OF 2000 ORDER ON C.M.P. 5236/2000 IN C.M.A.NO. 197/2000 DISMISSED SD/- M.N.KRISHNAN, JUDGE 17.12.2008 /TRUE COPY/ P.A. TO JUDGE. M.N. KRISHNAN, J ----------------------- C.M.A.No. 197 OF 2000 --------------------------------- Dated this the 17th day of December, 2008 JUDGMENT This appeal is preferred against the judgment of the Subordinate Judge, Nedumangad in A.S. 190/96. The said appeal was preferred against the judgment and decree in O.S. 524/86 of the Additional Munsiff Court, Nedumangad. The suit is one for declaration of title and possession with alternative prayer for recovery of possession on the strength of title. The trial court by its judgment dated 13.9.91 declared the title of the plaintiff over the plaint schedule property. It also declared the plaintiff's possession over 30.866 cents of the schedule property lying on east to the E D line in Ext. C1(a) plan. The trial court also granted a decree for recovery of possession of the plot A B E D in plot C1(a) plan and permitted the plaintiff to put up a permanent boundary on A B line etc. It is against that decision the appeal was preferred and the appellate court remanded the case for fresh disposal in accordance with law. It is against that decision the plaintiff in the suit has come up in appeal. 2. The following substantial questions of law had been raised C.M.A.No. 197/2000 -2- in this case as follows: 1. When the title of the plaintiff is proved, should the plaintiff establish possession after filing the suit for the relief of recovery of possession especially when defendant has no claim of adverse possession and limitation. 2. When the trial court after elaborate consideration of the documents found that the document of title relied on by the plaintiff are genuine and valid and are executed by persons who are the real owners of the plaint schedule property, can the appellate court without interpreting the documents and analyzing them hold that the title deeds relied on by plaintiff has to be reconsidered. 3. When the evidence in the case establish that the defendant has trespassed upon plaint schedule after suit, can the appellate court without assigning valid reason, remand the case. 4. When it is found that Ext. C1 and C1(a) are not objected by defendant can the court direct appointment of fresh commission for report without setting aside Exhibits C1 and C1(a). 5. Is the appellate court justified in remanding the case when evidence in the case sufficient to dispose of the appeal on merits. Points 3. It is the case of the plaintiff that the property originally belonged to one Moideen Kannu and Mohammed Haneefa and by virtue of a document described as Sreedhanakuri, they had given C.M.A.No. 197/2000 -3- the same to Podikannummal and her husband Peerukannu. DW2 Shahul Hameed is the son of Moideen Kannu and brother of Mohammed Haneefa. The marriage between this Podikannummal and Peerukannu broke and both of them remarried. Podikannummal married one Mohammed Sali and had two children namely Abbas and Peerukannu. Peerukannu married one Sainaba Beevi and he had two children Aboobaker Kunju and Shahul Hameed. Both Podikannummal and Peerukannu died and Abbas and Peerukannu executed Ext. A2 and Aboobaker Kunju and Shahul Hameed executed A3 along with one Naseema Beevi also. Ext.A4 is a release deed by Aboobaker Kunju in favour of Peerukannu. The total extend of the property covered by the document 1 acre 57 cents out of which 82 cents is the plaint schedule property. It is also the case of the plaintiff and the defendants that the 2nd defendant is in possession of 75 cents of land in the plaint survey number. It is a further case of the plaintiff that 75 cents of property lying on the eastern side of 1 acre and 57 cents obtained by him as per Ext. A2 and A3 to the 2nd defendant by Ext. A5 sale deed. Ext. A5 is the document executed by the plaintiff in favour of D2 by which it has transferred 75 cents property out of 1 acre and C.M.A.No. 197/2000 -4- 57 cents. So a conjoint reading of all these documents would show that the property having an extent of 1 acre and 57 cents had been transferred in favour of the two persons Podikannummal and Peerukannu and by subsequent devolution, assignment etc., it has come to the hands of plaintiff and 77 cents of that property has been assigned as per Ext. A5. The trial court after considering these materials held that title is there with respect to the property in favour of the persons who obtained the same under Ext. A1. 4. Then the trial court considered the question regarding the rival case of the defendant. After analysing the documents Exts. B2, B3 and B4, the trial court came to the conclusion that by virtue of the document of the year 1113 ME, the owners of the property had divested and transferred their right in favour of the persons mentioned in Ext. A1. There remained nothing with the original owners for transfer of that property and therefore any documents subsequently executed by them will not confer any title on the persons who had obtained it under those documents. Therefore the trial court held that the plaintiff had succeeded in proving the factum of title with respect to the plaint schedule property as well as Ext. A1. Then the trial court considered about the plaint survey C.M.A.No. 197/2000 -5- plan of plaint schedule property which was produced as Ext. A6, Ext. C1 and C1(a) plan of the commissioner and his report. The commissioner has noted the plaint schedule property within the lines A B C D. He also reported that the property lying west of the D E line that is the plot A B E D is lying along with the property in possession of the defendant. The property lying east of the D E line that is plot D E C is lying along with the property in the possession of the plaintiff. The trial court also held that the plot A B E D is having an extent of 51.150 cents and it is in the possession of the defendant. 5. So on a consideration of these materials the trial court held that : (1) The plaintiff is entitled to the declaration with respect to the entire property. (2) The plaintiff is having possession of 30.866 cents and that the plaintiff is entitled to recover possession of 51.150 cents from the defendants on the strength of title. 6. It is against this decision the appeal was preferred. I find the appellate court did not consider the matter in the proper perspective in which it deserves to be considered. The appellate C.M.A.No. 197/2000 -6- court observed that Ext. B4 is prior to the execution of Ext. A2. Ext. A2 sale deed would show that a major portion of the plaint schedule was also obtained by the 1st defendant. It has to be remembered that Exts. A2 and A3 documents are subsequent documents which comes into effect after Ext. A1 that is in the year 1113 ME. The property comes to the legal heirs of the original persons Podikannummal and Peerukannu and therefore just because Ext. B4 is prior to Exts. A2 and A3 will not improve the case of the 1st defendant for the reason that the person who had transferred the property under Ext. B4 did not have any valid title to or possession over that property so as to effect a transfer in favour of anybody else. So unnecessarily the appellate court went wrong and disturbed the considered finding of the trial court. So far as the identity of the property is concerned, it has to be held that the property is held under Ext. A 1 and other documents. It is the plaint schedule property that is sought to be identified. It has been identified by the commissioner who has inspected the property. The commissioner was able to show which is the plaint schedule property and thereafter carved out the portions which is in the possession of the plaintiff as well as that is in the possession of the C.M.A.No. 197/2000 -7- defendants and thereafter directed the defendants to surrender possession of the property on the strength of the title of the plaintiff. We cannot find any fault with the trial court arriving at a decision on the basis of Exts. C1 and C1(a) and therefore there was absolutely no necessity for the appellate court to interfere on that point also. So from a consideration of these materials, I hold that the trial court was absolutely right and justified in finding title in favour of the plaintiff as well as possession with respect to 30.866 cents and also for the recovery of possession with respect to 51.150 cents as detailed in the judgment. Therefore the judgment of remand is unsustainable and therefore it is liable to be set aside and the decree granted by the trial court has to be confirmed. The C.M.A is accordingly disposed of as follows: The judgment and decree passed by the trial court is restored and the judgment passed by the appellate court is set aside. The decree of the trial court is restored. Parties shall bear their respective costs. M.N. KRISHNAN,JUDGE vkm