IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 AS.No. 39 of 2001() ------------------- OS.249/1989 of SUB COURT, MANJERI .................... APPELLANT:PLAINTIFF ------------------------------------ *AYAMU HAJI, SON OF KORAMANGALATH VEERAVUNNI (DIED) THIRUVALI AMSOM AND DESOM P.O THIRUVALI , NILAMBUR TALUK MALAPPURAM DISTRICT Addl. A2. ASSIA UMMA, DAUGHTER OF AYAMU HAJI, KORAMANGALATH HOUSE, THIRUVALI AMSOM AND DESOM, P.O THIRUVALI , NILAMBUR TALUK MALAPPURAM DISTRICT Addl. A3. MARIYUMMA, DAUGHTER OF AYAMU HAJI, KORAMANGALATH HOUSE, THIRUVALI AMSOM AND DESOM, P.O THIRUVALI , NILAMBUR TALUK MALAPPURAM DISTRICT Addl. A4. AYISHA UMMA, DAUGHTER OF AYAMU HAJI, KORAMANGALATH HOUSE, THIRUVALI AMSOM AND DESOM, P.O THIRUVALI , NILAMBUR TALUK MALAPPURAM DISTRICT Addl. A5. BEERAN, SON OF AYAMU HAJI, KORAMANGALATH HOUSE, THIRUVALI AMSOM AND DESOM, P.O THIRUVALI , NILAMBUR TALUK MALAPPURAM DISTRICT Addl. A6. PATHUMMA, DAUGHTER OF AYAMU HAJI, KORAMANGALATH HOUSE, THIRUVALI AMSOM AND DESOM, P.O THIRUVALI , NILAMBUR TALUK MALAPPURAM DISTRICT 2 AS.No. 39 of 2001 Addl. A7. KADEEJA, DAUGHTER OF AYAMU HAJI, KORAMANGALATH HOUSE, THIRUVALI AMSOM AND DESOM, P.O THIRUVALI , NILAMBUR TALUK MALAPPURAM DISTRICT Addl. A8. ABDULLA, SON OF AYAMU HAJI, KORAMANGALATH HOUSE, THIRUVALI AMSOM AND DESOM, P.O THIRUVALI , NILAMBUR TALUK MALAPPURAM DISTRICT Addl. A9. SARA BEEVI, DAUGHTER OF AYAMU HAJI, KORAMANGALATH HOUSE, THIRUVALI AMSOM AND DESOM, P.O THIRUVALI , NILAMBUR TALUK MALAPPURAM DISTRICT Addl. A10. HUSSAIN, SON OF AYAMU HAJI, KORAMANGALATH HOUSE, THIRUVALI AMSOM AND DESOM, P.O THIRUVALI , NILAMBUR TALUK MALAPPURAM DISTRICT Addl. A11. AFSAL (minor), AYAMU HAJI, KORAMANGALATH HOUSE, THIRUVALI AMSOM AND DESOM, P.O THIRUVALI , NILAMBUR TALUK MALAPPURAM DISTRICT Addl. A12. AMINA, WIDOW OF AYAMU HAJI, KORAMANGALATH HOUSE, THIRUVALI AMSOM AND DESOM, P.O THIRUVALI , NILAMBUR TALUK MALAPPURAM DISTRICT (MINOR 11th ADDL. APPELLANT IS REPRESENTED BY HER GUARDIAN MOTHER 12th Addl. APPELLANT) BY ADVS. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SRI.ANISH S.AMBADY SMT.BIJIMOL JOSE SRI.MEENA A. SMT.SANJANA R.NAIR SRI.JAYKAR.K.S. SRI.RAHUL VARMA SRI.M.GOPIKRISHNAN NAMBIAR 3 AS.No. 39 of 2001 RESPONDENTS: (DEFENDANTS 1 TO 8 AND 10 TO 12) -------------------------------------------------------------------------- 1. AHAMMEDKUTTY SON OF CHERUPALLIKKAL KUNHIMUHAMMAD EDAVANNA AMSOM AND DESOM P.O. EDAVANNA, MALAPPURAM DISTRICT 2. ASSAN, SON OF CHERUPALLIKKAL KUNHIMUHAMMAD EDAVANNA AMSOM AND DESOM P.O, EDAVANNA, MALAPPURAM DISTRICT. 3. KADEESA UMMA DAUGHTER OF CHERUPALLIKKAL KUNHIMUHAMMED WIFE OF ALIKUTTY MANHAPATTA P.O, MALAPPURAM DISTRICT 4. MARIYA UMMA DAUGHTER OF CHERUPALLIKKAL KUNHIMUHAMMAD P.O, PAYYANAD, MALAPPURAM DISTRICT 5. ITHACHUTTY DAUGHTER OF CHERUPALLIKKAL KUNHIMUHAMMAD P.O, KARAKUNNU , MALAPPURAM DISTRICT 6. AYISHAKUTTY DAUGHTER OF CHERUPALLIKKAL KUNHIMUHAMMED WIFE OF KAREEM MASTER P.O VANIYAMBALAM, MALAPPURAM DISTRICT 7. PATHOMAKUTTY DAUGHTER OF CHERUPALLIKKAL KUNHIMUHAMMED WIFE OF KIZHISSERI KUNHAPPUTTY P.O MELE KIZHISSERI, MALAPPURAM DISTRICT 8. NABEESAKUTTY DAUGHTER OF CHERUPALLIKKAL KUNHIMUHAMMED P.O EDAVANNA, MALAPPURAM DISTRICT 9. MAJEED SON OF MALANGADAN MAMMAD KARAKUNNU AMSOM AND DESOM P.O, KARAKUNNU, MALAPPURAM DISTRICT 10. POTHANGODAN NAFEESA KARAKUNNU AMSOM AND DESOM P.O, KARAKUNNU, MALAPPURAM DISTRICT. 11. KADAVATH ABU KARAKUNNU AMSOM AND DESOM P.O KARAKUNNU, MALAPPURAM DISTRICT 4 AS.No. 39 of 2001 * ADDL.R12. UMMER, SON OF AYAMU HAJI, KORAMANGALATH HOUSE THIRUVALI AMSOM AND DESOM P.O, THIRUVALI, NILAMBUR TALUK MALAPPURAM DISTRICT * ADDL.R13. ISAHAC , SON OF AYAMU HAJI KORAMANGALATH HOUSE THIRUVALI AMSOM AND DESOM P.O, THIRUVALI, NILAMBUR TALUK MALAPPURAM DISTRICT (LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 12 AND ADDITIONAL RESPONDENTS 12 AND 13 AS PER ORDER DATED 4.11.2008 IN I.A. NO.200/2004.) BY ADV. SRI.C.CHANDRASEKHARAN FOR R1TO 9 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/10/2009, THE COURT ON 12/10/2009 DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- A.S.No.39 of 2001 ---------------------------------------- Dated this the 12th day of October, 2009 JUDGMENT The plaintiff in O.S. No. 249/1989 on the file of the sub Court Manjeri is the appellant. The said suit was filed for permanent injunction and damages and in the alternative for recovery of possession. The trial court dismissed the suit. Hence the appeal. The supplemental 10th defendant in the above said suit, filed O.S. 135/1991 The said suit was filed for injunction. Both suits were jointly tried and a common judgment was passed by which both suits were dismissed. The supplemental 10th defendant did not file any appeal against the dismissal of O.S. No. 135/1991. The parties hereinafter referred to as plaintiff and defendants as arrayed in O.S. No. 249/1989. 2. The material averments made in the plaint in brief are as follows: The plaint A schedule property is part of plaint B and C schedule properties. The C schedule property including A schedule property admittedly belonged in jenm to Kozhikotta Kizhakke Kovilakom. It is the plaintiff's case that one K.V.Payi Amma got leasehold right (kanom right) over the said properties along with some other properties as per kanom lease deed No. 1024/1889. Subsequently as per a registered assignment deed dated 26.10.1889 the said Payi Amma and others assigned their rights in the properties in favour of C.K.Veerankutty who is the father of the plaintiff's mother. It is further averred in the plaint that the plaint C A.S. No. 39 of 2001 -2- schedule is described as Item No. 10 in Ext.A1 assignment deed ( the same is produced as Ext.A34 in O.S.335/1973). On the death of the said Veerankutty, his legal heirs including the mother of the plaintiff continued to possess and enjoy the plaint B and C schedule properties along with some other properties. It is the plaintiff's case that his mother by name Kunjathunni Umma got leasehold right as per a renewal deed dated 6.8.1928, that on her death the rights obtained by his mother is devolved on her only son who is the plaintiff. The plaintiff also averred that plaint A and B schedule properties are items 3 and 5 properties respectively in the renewal deed dated 6.8.1928. 3. According to the plaintiff, the boundaries are described in the kanom lease deed of 1889; but in the renewal deed it was omitted to show “Kozhikodan Poyil” as southern boundary. It is an admitted fact that the plaintiff and his ancestors were in possession of the property which lies on the northern side of kozhikodan Poyil” as of right continuously. Due to the said omission and with an intention to get plaint A schedule property and the eastern side of it, the predecessors in interest of the defendants filed O.S. 359/1971 before the Munsiff's Court, Manjeri , which was transferred to Munsiff Court, Perinthalmanna and renumbered as O.S. 335/1973 The said suit was filed for injunction simplicitor. The kanom assignment deed of 1889 was marked as Ext.A34 in that suit. A Commissioner was appointed in O.S No. 335/1973 for submitting plan and report after inspection of the property described as item No.10 in the aforesaid renewal deed. The plan submitted by the Commissioner was marked as Ext.C8 which was marked as Ext.A4 in the present suit.. From Ext.A4 plan, it A.S. No. 39 of 2001 -3- can be seen that plaint A schedule property is situated on the eastern side of the properties described in Ext.A34 and is located at the western side of the property in O.S. No. 335/1973. The said suit was decreed. Against which the defendants therein preferred appeal as A.S. No. 24/1983. While the appeal was pending Kunhimuhammed (plaintiff) died and his legal heirs were impleaded in that appeal. It was found that the property described as plaint A schedule to the plaint in O.S. No. 335/1973 belonged to the plaintiff herein. The document by which plaintiff got right over the property was produced in O.S. No. 335/1973 by the predecessor-in-interest of the defendants. That document was marked as Ext.A34. The Commissioner was appointed in that case identified the property described as item No. 10 in that document. The lower appellate court found that the plaint A schedule property herein is part of the property marked in the above said plan and it is in the possession of the plaintiff. It was the western portion of item No.10 property in Ext.A34 that was given on lease to the mother of the plaintiff. This Court by judgment in S.A. 1062/1989 dated 23.1.1995 found that the plaint schedule property in this case is not in possession of the plaintiff herein. So the plaintiff instituted O.S. No. 249/1989 for a decree of permanent injunction restraining the defendant and their men from entering into the plaint A Schedule property and committing waste, in the alternative for recovery of possession of the plaint schedule property. 4. I have perused Ext.A4 plan in detail. The property shown as plaint A schedule property in O.S. No. 335/1973 is identified and shown in red stripes. The measurement is 69 x 81 (six feet koles) The A.S. No. 39 of 2001 -4- Commissioner also identified the properties possessed by the plaintiff in that suit by red tick marks. The Commissioner also located the western and eastern boundaries of item No.10 of Ext.A34. The lines denoting railway track are the western and eastern boundaries respectively. In Ext.C8 the Commissioner has shown the property in the possession of the plaintiff with red tick marks and the disputed portion lying to the east of it with red stripes. 5. In S.A. No. 1062 of 1989, this Court observed that the 1st defendant as DW1 admitted that he is in possession of the property lying east of AB line. This Court also found that both Exts.C4 and C8 show that there was no serious dispute regarding possession of the plaintiff at the time of the Commissioner's visit in respect of the portion lying to the west of the line AB in Ext.C8 plan and therefore this Court held that in such situation the lower appellate court in its judgment in A.S. No. 24/1983 committed an error by reversing the judgment in O.S No. 335/1973. This Court allowed S.A. No. 1062 of 1989 and granted a decree for a perpetual injunction restraining the defendants from interfering with the plaintiff's possession of the property marked with red tick marks and lying to the west of the line AB marked in Ext.C8 plan and held that the suit(O.S. No. 335/1973) in respect of the portion marked with red stripes lying to the east of the line AB will stand dismissed. 6. This Court in the judgment dated 23.1.1995 in S.A. No.1062 of 1989 also observed that the 1st defendant in O.S. No. 335/1973 ( the plaintiff in O.S. No. 249/1989) in his deposition as DW1, clearly admitted that a portion of the property included in the plaint belonged to him under A.S. No. 39 of 2001 -5- Ext.B2 and was in his possession and that the plaintiff is not entitled to any relief in respect of that property. In paragraph 2 of the judgment in S.A. No.1062 of 1989 this Court observed that it was stated by the 1st defendant that he was not claiming any right of possession over the property shown as plaint B schedule . This Court after referring to Exts. C4 and C8 plan held that the claim of the 1st defendant was confined only to the red striped portion lying to the east of AB line. 7. The plaintiff in the present suit i.e O.S. No. 249/1989 accepted the judgment in O.S. No. 335/1973 which attained finality in second appeal The present Suit was filed by the 1st defendant in O.S. No. 335/1973 against the legal heirs of the sole plaintiff therein for recovery of the plot on the strength of title lying on the west of AB line which according to him is a portion of item No. 10 in Ext.A1 (Ext.A34) The plaintiff has also a case that plaint A Schedule is item No. 5 in the renewal deed dated 6.8.1928 8. In the present suit, the plaintiff was examined as PW1 and Exts A1 to A6 were marked on his side. DW1 was examined on the defendants' side and Exts. B1 to B8 were marked on their side. Exts. C1 to C4 were marked as Court Exhibits. 9. Defendants 1 to 4 and 6 to 9 jointly filed a written statement denying the title of the plaintiff. According to them the disputed property originally belonged to the predecessor in interest of defendants 1 to 8 and husband of the 9th defendant. It is also contended that the disputed property was later assigned in favour of the son of the 5th defendant and it is in the possession of 5th defendant and his children A.S. No. 39 of 2001 -6- 10. The present suit was resisted by the 5th defendant. The 5th defendant filed a separate written statement and contended that plaint A and B and C schedule properties cannot be properly identified and further contended that plaint A Schedule property is not part of plaint B and C properties and denied the claim of the plaintiff that his predecessor in interest has got title over the plaint A schedule property. According to 5th defendant plaint A schedule property was obtained by her father Kunhimuhammed, as per a sale certificate .The 5th defendant also contended that the plaintiff has not claimed right over the disputed property which was the subject matter of O.S. No. 335/1973 and that the plaintiff is estopped from claiming right over the said property. 11. O.S. No. 135/1991 was filed by 10th defendant in O.S. No. 249/1989 praying for passing a decree of perpetual injunction restraining the plaintiff in O.S No. 249/1989 and others from interfering with his possession and enjoyment of the plaint schedule property which is the plaint schedule in O.S. No. 249/1989. 12. The trial court examined the respective contentions of the parties and the evidence adduced in this suit . 13. The learned counsel for the plaintiff/appellant submitted that in support of his claim for title, Ext.A1 title deed alone was produced . The reason for non- production of other documents including the renewal deed of 1928 is that the documents were produced in the earlier suit i.e O.S.No. 335/1973. It is submitted that at the time when the present suit i.e O.S. No. 249/1989 was filed, the Second Appeal No. 1062/1989 was pending before this Court. All the documents relating to the title were produced in A.S. No. 39 of 2001 -7- O.S No. 335/1973 and therefore the same could not be produced in the present suit. 14. I have examined the common judgment passed by the trial court in O.S. Nos. 249/1989 and 135/1991. Apart from narrating the facts and respective contentions of the parties, the trial court did not discuss effectively the questions relating to the title to the plaint schedule property and related questions. Moreover, the trial court declined to accept the plaintiff's title in the absence of production of documents. The properties belonging to the plaintiff was identified by the commissioner in Ext.C8 plan and the same was accepted by the lower appellate court and this Court in second appeal. So the question of identification of the disputed property cannot be re-agitated by the parties. The further question for decision in this case is whether the plaintiff has got title to plaint schedule property which is lying on the west of AB line and east of the line denoting railway track in Ext.C8 plan (Ext.A4 plan in the present suit). Though the matter was elaborately considered by the court below the claim of the plaintiff's title is not seen effectively discussed or appreciated in the judgment. Moreover the issue regarding title was not considered based on the respective contentions and documents supporting title. Therefore the documents relied on by the respective parties shall be discussed on the basis of the identification made by the Commissioner in Ext.A4 plan . A Judgment on the above said issues can only be passed after considering other documents which are yet to be produced by the appellants. In such circumstances, the matter shall be reconsidered by the trial court within the time frame to be fixed by this Court. A.S. No. 39 of 2001 -8- In the result, the judgment and decree under appeal are set aside. The case is remanded to the trial court for fresh consideration. The parties are at liberty to produce additional documents in support of their respective contentions. The case shall be disposed of within a period of 9 months from the date of appearance of the parties. The parties shall appear before the trial court on 12.11.2009. Transmit the records immediately. The appellant is entitled to refund of court fee. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S. No. 39 of 2001 ---------------------------- JUDGMENT 12th October, 2009