IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 SA.No. 41 of 1990(E) -------------------- AS.109/1986 of SUB COURT, VADAKARA OS.5/1984 of MUNSIFF COURT, QUILANDY .................... APPELLANT: APPELLANT:PLAINTIFF: --------------------------------------------------------- * KIZHAKKUMPURATH CHANKOYI ALIAS CHEKKAYI, S/O.VELANCY, AGRICULTURIST, AGED 70 YEARS, NADERI AMSOM, MOOZHIKUMEETHAL DESOM, RESIDING AT THANIKKUZHI, QUILANDY TALUK. ( D I E D) – ADDL.APPELLANTS 2 & 3 IMPLEADED: *SOLE APPELLANT DIED – ADDL.APPELLANTS 2 & 3 IMPLEADED: ADDL.APPELLANT NO.2: T.K.ANDY, S/O.KIZHAKKUMPURATH CHANKOYI, RESIDING IN THANIKKUZHIYI, NATERI POST, VIA KOYILANDY, KOZHIKODE DISTRICT, KERALA. ADDL.APPELLANT NO.3: T.K.VELAYUDHAN, S/O....DO.....DO.... *ADDL.APPELLANTS 2 & 3 ARE IMPLEADED AS LR'S OF DECEASED SOLE APPELLANT IN S.A. AS PER ORDER DTD. 29/09/06 OF SUPREME COURT OF INDIA ON INTERLOCUTORY APPLICATION NO.5 IN CIVIL APPEAL NO.5075 OF 1998. BY ADV. SMT. PRABHA R.MENON RESPONDENTS:RESPONDENTS:DEFENDANTS: ---------------------------------------------------------------------- 1. THANIKKUZHIYIL VELLAYI, D/O.ARIYAN, AGED ABOUT 60 YEARS, COOLI, NADERI AMSOM, MOOZHIKUMEETHAL DESOM, QUILANDY TALUK. 2. ...DO... JANU, D/O.VIRUTHAN, AGED ABOUT 45 YEARS, RESIDING IN NELLIKUNNUMMAL, KUNNATHARA AMSOM, KANNUR DESOM, QUILANDY TALUK. 3. M.C.GOPALAN, S/O.VIRUTHAN, AGED ABOUT 35 YEARS, NOW WORKING AS SECTION OFFICER, DEVELOPMENT DEPARTMENT, GOVERNMENT SECRETARIAT, GOVERNMENT OF KERALA, TRIVANDRUM. Kss ...2/- ...2..... S.A.NO.41/1990 4. THANIKKUZHIYIL AMMALU, AGED ABOUT 32 YEARS, D/O.VIRUTHAN, NADERI AMSOM, MOOZHIKKUMEETHAL DESOM, QUILANDY TALUK. **5. ...DO... VELU, S/O...DO... TEACHER, WORKING IN JAWHARLAL NEHRU MEMORIAL HIGH SCHOOL MAHE. ( D I E D) - LR'S IMPLEADED – ADDL. 10 TO 12. 6. ....DO.....PANCHALI, AGED ABOUT 28 YEARS, D/O..DO..NADERI AMSOM, MOOZHIKUMEETHAL DESOM, QUILANDY TALUK. 7. ...DO... BHASKARAN, S/O..DO... AGED ABOUT 20 YEARS, ...DO....DO..... 8. ...DO... MEENAKSHI, D/O...DO... VARATARAMBATH THAZHA KUNIYIL, KARUVANGAD AMSOM, PERUVATTOOR DESOM, QUILANDY TALUK. 9. ...DO.... RAVI, S/O...DO..... AGED ABOUT 19 YEARS, RESIDING IN THANIKUZHIYIL, NADERI AMSOM, MOOZHIKUMEETHAL DESOM, QUILANDY TALUK. **ADDL.RESPONDENTS: ADDL.R10: DEVI, W/O.VELU, R/O. THANIKKUZHIYIL, NATARI POST, (VIA) KOYILANDY, KOZHIKODE DISTRICT, KERALA. ADDL.R11: VEDESH, S/O.VELU, ....DO...DO..... ADDL.R12: VIDYA, D/O.VELU, .....DO....DO..... **ADDL.RESPONDENTS 10 TO 12 ARE IMPLEADED AS LR'S OF DECEASED 5TH RESPONDENT IN SA AS PER ORDER DTD. 29/09/2006 OF SUPREME COURT OF INDIA ON INTERLOCUTORY APPLICATION NO.3 IN CIVIL APPEAL NO.5075 OF 1998. BY ADV. SRI U. K RAMAKRISHNAN SRI. P V LOHITHAKSHAN, SRI MATHEWS J NEDUMPARA-R3 SRI.E.K.MADHAVAN SMT.P.VIJAYAMMA SMT.UMA GOPINATH SRI.V.KRISHNA MENON SRI.SANDEEP.E. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO. 41 OF 1990 =========================== Dated this the 17th day of January, 2008 JUDGMENT Plaintiff in O.S.5/1984 on the file of Munsiff Court, Quilandy is the appellant. Defendants are the respondents. Plaintiff instituted the suit claiming recovery of possession of plaint C schedule property on the strength of title. According to appellant, plaint A schedule property belonged in jenm right to Veliyannurkav Devaswom and the property along with other properties was obtained by Kunhirama Marar from the Devaswom and under Ext.A1 he leased out plaint A schedule property in favour of appellant on 7.9.1937. While appellant has been in possession of the property, under Ext.A2 he granted plaint B schedule property on lease in favour of Viruthan brother of the appellant and Viruthan has been in possession of the property. Subsequently as his legal heirs, respondents are in possession of S.A.41/1990 2 plaint B schedule property. It was contended that while so respondents trespassed into plaint C schedule property, which is a portion of the plaint A schedule property excluding the property covered under Ext.A2, having an extent of 36 cents and reduced it into their unlawful possession. It is claimed that the remaining property covered under Ext.A1 is the plaint D schedule property and it is in the possession of the appellant. Contending that respondents have no manner of right or title to plaint C schedule property, recovery of possession of plaint C schedule property is sought on the strength of title. Respondents resisted the suit admitting Ext.A2 lease but contending that Viruthan had also obtained 29 cents of land which lies to the north of the property covered under Ext.A2 lease, from Krishna Marar and Kelappa Marar and he has been in possession of the said 29 cents along with the property covered under Ext.A2 and plaint C schedule property is part of plaint B schedule property and it was not the property trespassed by respondents as claimed by appellant. It was also contended that subsequent to the death S.A.41/1990 3 of Viruthan his properties were in the possession of respondents and they purchased jenm right of both properties obtained under Ext.A2 as well as the property which lies to its north and obtained on lease from Krishna Marar and Kelappa Marar, from the Land Tribunal and in any case as respondents have been in possession of the property for the last more than 25 years the title of the appellant if any is lost by adverse possession and limitation. 2. Learned Munsiff on the evidence of Pws.1 and 2, Dws.1 and 2 and Exts.A1 to A5 and Exts.B1 to B10 and Exts.C1 to C5 found that appellant did not establish that plaint C schedule property is part of the remaining property covered under Ext.A1 excluding the property covered under Ext.A2 and appellant did not establish his title to plaint C schedule property and dismissed the suit. Appellant challenged the judgment before Sub Court, Badagara in A.S.109/1986. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. Appellant filed the second appeal challenging the S.A.41/1990 4 concurrent findings of the courts below. As per judgment dated 10.3.1998, this court originally allowed the appeal and set aside the findings of courts below and granted a decree in favour of the appellant. Defendants challenged the judgment by filing Civil Appeal 5075/1998, before Supreme Court. Apex Court set aside the judgment of this court as per judgment dated 29.1.2004 holding that without formulating substantial questions of law second appeal should not have been heard. The appeal was remanded to this court. But before the date of disposal of the civil appeal, original appellant had died. This fact was not brought to the notice of the Apex Court when the civil appeal was allowed and the second appeal was remanded to this court. Finding the defect, when this fact was brought to the notice of this court after remand, respondents approached Apex Court by filing interlocutory application to implead legal heirs of deceased appellant, the respondent before the Apex Court. Those petitions were allowed and the additional appellants herein were impleaded as additional respondents in the civil appeal by the S.A.41/1990 5 Apex Court. Thereafter additional appellants appeared before this court. 3. After hearing the learned counsel for both sides the following substantial question of law was formulated. 1. Whether courts below were justified in dismissing the suit on finding that plaint C schedule property is not proved to be part of the property covered under Ext.A1, the plaintiff had taken out a commission to identify the property and the Commissioner identified plaint C and D schedule properties and without setting aside the report and plan submitted by the Commissioner and that too without affording an opportunity to the plaintiff to establish that plaint C schedule property forms part of S.A.41/1990 6 plaint A schedule property, excluding property granted on lease under Ext.A2. 4. The dispute in the appeal is with regard to plaint C schedule property. The fact that Ext.A2 lease was obtained by Viruthan, the predecessor in interest of respondents from deceased plaintiff was admitted. The property granted on lease under Ext.A2, is part of the property obtained under Ext.A1. Under Ext.A1 an extent of 80 x 60 feet were obtained on lease by the original plaintiff. It is out of the said property 1.11 acres was granted on lease under Ext.A2, to Viruthan who is none other than the brother of the plaintiff. Respondents are claiming right to the plaint C schedule property under Ext.A2. When appellants claim that plaint C schedule property is part of the property covered under Ext.A1 excluding the property covered under Ext.A2, respondents contend that plaint C schedule property is part of the property covered under Ext.A2. Plaint D schedule property is admittedly part of the property covered under Ext.A1. S.A.41/1990 7 According to appellants, it is the remaining property of plaint A schedule property excluding the property covered under Ext.A2 lease and plaint C schedule property. There is no dispute with regard to the plaint D schedule property. The courts below negatived the claim of the plaintiff, finding that plaint C schedule property, which is marked by the Commissioner in Ext.C3 plan as plot E and C, was not proved as part of the remaining property covered under Ext.A1, less the property covered under Ext.A2. 5. On the evidence on record or based on the report submitted by the Commissioner or based on Ext.C3 plan, it is not possible to enter a specific finding whether plaint C schedule property forms part of the property covered under Ext.A1 excluding the the property covered under Ext.A2. That question can be settled only on a proper identification of the properties. When respondents themselves claim that plaint C schedule property forms part of the property obtained under Ext.A2 and the property obtained under Ext.A2 is part of the property obtained by plaintiff under S.A.41/1990 8 Ext.A1, if it is to be found that plaint C schedule property does not form part of the property covered under Ext.A2, it must necessarily find that plaintiff has title to the plaint schedule property. On the other hand, if it is to be found that plaint C schedule property forms part of the property covered under Ext.A2, plaintiff cannot claim title to that property and claim for recovery of possession can only be rejected. Unfortunately these aspects were not considered by the courts below. Though Commissioner was appointed to identify the plaint schedule properties plaint A schedule which is the property covered under Ext.A1 as such was not identified. Commissioner has only idetified plaint B schedule property as plot B and plaint D schedule as plot D and the disputed C schedule property as plots E and C. Courts below found that from Ext.C3 plan it is not possible to hold that plot E and C form part of remaining property covered under Ext.A1 less the property covered under Ext.A2 or that they are not part of the property covered under Ext.A2. On the evidence that finding is correct. S.A.41/1990 9 6. But the question is for the failure to identify plaint A schedule property, plaintiff is to be non-suited. Considering the fact that parties were litigating for the last more than 20 years, it is in the interest of justice, to have a proper decision in the dispute after proper identification. As there was no proper identification, it is necessary to grant an opportunity to the appellants to establish the identity. In such circumstance, the appeal is allowed. The decree and judgment passed by courts below in O.S.5 of 1984 ad A.S.109/1986 are set aside. O.S.5/1984 is remanded to Munsiff Court, Quilandy for fresh disposal in accordance with law. Learned Munsiff shall appoint an experienced Commissioner at the expense of the plaintiffs to identify the property covered under Ext.A1. Commissioner shall be directed to identify the property covered under Ext.A2 also. If on such litigation, it is to be found that plaint C schedule property forms part of the property covered under Ext.A2, necessarily the suit is to be dismissed. If it is to be found that plaint C S.A.41/1990 10 schedule property does not form part of the property covered under Ext.A2 and forms part of the remaining property covered under Ext.A1, learned Munsiff has to consider whether title of the plaintiffs has been barred by adverse possession and limitation as claimed by respondents. Parties are entitled to adduce further evidence. Parties are directed to appear before the Munsiff court on 3.3.2008. Send back the records immediately. Learned Munsiff to dispose the suit as expeditiously as possible. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A.NO.41 /1990 --------------------- JUDGMENT 17th JANUARY,2008