IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 AS.No. 669 of 2001(B) ------------------------------- OS.138/1995 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S): ---------------------- ANANDRAJ, S/O. SADANANDAN, RESIDING AT ANANDA MANDIRAM, NELLIYAMKUNNAM, KATTUSSERY AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.V.CHITAMBARESH SRI.KRISHNA PRASAD. S RESPONDENT(S): ------------------------- K.A.PREMALATHA, D/O K.A.PARUKUTTY AMMA, RESIDING AT 'PREYASREE', KANNIPDATH, SHORNUR,OTTAPALAM TALUK, PALAKKAD, DISTRICT. ADV. SRI.TOM K.THOMAS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.N.KRISHNAN, J ---------------------------- A.S.NO.669 OF 2001 ----------------------------------- Dated this the 23rd day of November, 2010 JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judges Court Palakkad in OS No.138 of 1995 of the Additional Sub Court, Palakkad. The brief facts necessary for the disposal of the appeal are stated as follows: The property described in the plaint schedule which was a subject matter of a partition suit in OS No.139 of 1982 was bid in auction by the plaintiff and thereby the plaintiff was conferred title of the said property. In the said suit when a commission inspected the property he has reported that the defendant is in possession of the property. It is understood that Sri.Govindan Nair, the predecessor in interest of the plaintiffs in O.S.No.139 of 1982 had assigned his fractional right over the property in favour of one Hamsa Rawuthar who in turn had assigned it to two other persons and from the said two persons the defendant had purchased the property. Therefore, even if the defendant is entitled to any right over the property it is only the share with respect to Govindan Nair. In OS No.139 of 1982 the Court has declared the share of the parties and the plaintiff in A.S.NO.669 OF 2001 2 that suit who claimed as the legal representatives of deceased Govindan Nair was allotted only one out of 43 shares in the property and therefore, even if the document executed in favour of the defendant is found to be valid the defendant will be entitled to only one out of 43 shares and the plaintiff the remainder. The defendant on the other hand, had raised so many contentions including the extent of the property involved in the plaint schedule as well as the right of the plaintiff alleged to be lost by the adverse possession and limitation and further that the property has not been brought to the common hotch pot for division. Let me first consider about the share. OS No.139/1982 is the litigation which has declared the right of the parties over the Thavazhi property whereby Govindan Nair's legal representatives were found to be entitled to have only one out of 43 shares in the property. The maximum entitlement for the defendant claiming through Govindan Nair can be only one out of 43 shares and therefore, the said finding does not call for any interference. Now let me consider the above second question of bringing the property into common hotch pot for effecting division. Most probably the learned counsel for the appellant has in his mind the decision of this Court reported in 1973 KLT 148 SAROJINI AMMA v PAPPI A.S.NO.669 OF 2001 3 AMMA & OTHERS. It was a case where the property was totally outstanding with strangers at the time of the suit and therefore, the court held that unless the property is brought into the common hotch pot there cannot be a division by metes and bounds. But so far as, the present case is concerned the defendant is claiming right over the property only as the purchaser of a fractional share that belonged to Mr.Govindan Nair. It can be very safely said that the purchaser from Govindan Nair can only step into the shoes of Govindan Nair and therefore, the possession of a purchaser will be that of co-owner and the said possession of a co-owner shall always be and on behalf of the other co-owner. Therefore, there is no necessity to bring property into the common hotch pot as contended by learned counsel for the appellant. Now the question of ouster. The ouster is based on the principle of nec-vi nec-claim nec-previrio. The possession must be continuous, uninterrupted with hostile animus. When a person purchase the property as a co-sharer he cannot have intention to possess against the interest of the other co-owners unless it is explicitly made clear. Here, the present defendant had been assigned the property only in the year 1989 and the suit is filed in the year 1995 and therefore, the question of ouster also does not arise. A.S.NO.669 OF 2001 4 Now comes the main dispute between the parties. Most probably, this is one of the classical litigation where the traditional civil dispute is reflected. According to the defendant now property available for division is 4.5 X 8 carpenter Kole having a measurement of only less than 1 cent. 1 carpenter Kole comes to 28 inches and if it is converted into feet measurement it will come into 10 feet X 18 feet. But the other side would contend that Ext.B5 document which is relied upon by the defendant would show that the extent of the property is 3 cents i.e. 4.5 X 8 six feet Koles which would have 36 perukkams amounting to 3 cents of land. So now the question is whether the available property for division is only 4.5 X 8 carpenter Koles or is it 4.5 X 8 six feet Koles. Now this contention requires consideration for the following reasons: Ext.B1 is the original document of the year 1907 which is executed in favour of Achuthan Nair by one Appukkutty Rawuthar. This, Achuthan Nair is the predecessor in interest of Govindan Nair and others. In that the description of the property is given and it is specifically stated that it is not six feet Koles but only on carpenter Koles, the boundaries are given. Ext.B3 is a Jenmam assignment deed executed by Govindah Nair in favour of Hamsa Sahib the predecessor in interest of the defendant. The description shows that A.S.NO.669 OF 2001 5 it is carpenter Koles but relying upon a certificate of purchase the extent is shown as 3 cents. But when it comes to Ext.B5 there is a total sea change and the carpenter Kole is ignored and it is made as six feet Kole and then the extent of 3 cents is shown. The certificate of purchase also shows 3 cents of property. Ext.B2 which is a rent Chit executed between Govindan Nair and Basheer whereby a portion of Govindan Nair's property is taken only by Basheer. The extent of property is shown as 3 cents but the measurement to shown in carpenter Kole with boundaries. So it has become inevitable for the court find out what is the actual property available under B1, B2, B4 and B5. It is only that property which is available for division. So as held in so many decision the property can be found out depending on the measurement, boundaries etc. and it is also settled principle that in the case of discrepancy between measurement and extent boundaries can be relied on. Ultimately it has been held that the court has to apply the principle which is the least infallible so as to arrive at a decision. So the matter requires reconsideration on the point of the extent of the property. Most probably a visit by the commissioner may be necessary to find out the extent of the property and since the very extent is in dispute it may not be correct on the part of the court to direct the final decree court to adjudicate that A.S.NO.669 OF 2001 6 point. Therefore, unless the extent of property available for division is also fixed in the preliminary decree the final decree proceedings may be handicapped. Therefore, the judgment and decree of the trial court is partly set aside with respect to the extent and it is made clear that the court below shall apply its mind to the documents and if necessary by issuing a commissioner find out the extent of the property available, then permit both parties to adduce evidence with reference to their respective contentions and thereafter dispose of the matter in accordance with law. Being an old matter and as the dispute crystallise only to a minor point the trial court shall see that the matter is disposed of within three months from the date of the first appearance of the parties. The parties are directed to appear before the trial court on 17-12-2010. Commission be issued, if necessary with the assistance of surveyor. M.N.KRISHNAN,JUDGE pm