IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 RFA.No. 418 of 2005() -------------------------------- OS.636/1987 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT/DEFENDANT: ---------------------------------------- MADHAVAN, AGED 70, S/O. RAMAN, KAREPARAMBIL HOUSE, NATTIKA AMSOM AND DESOM, CHAVAKKAD TALUK, THRISSUR. BY ADV. SRI.K.S.MADHUSOODANAN, SRI.T.V.JAYAKUMAR NAMBOODIRI. RESPONDENT/PLAINTIFF: --------------------------------------- SHELLY, AGED 36, S/O. MADHAVAN, KOZHIPARAMBIL HOUSE, KAIPAMANGALAM, CHAVAKKAD TALUK, THRISSUR (NOW RESIDING AT HOUSE NO.55-A, WARD NO.16, GANDHIGRAM, IRINGALAKUDA). BY ADV. SRI.P.V.CHANDRA MOHAN. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA.No. 418 of 2005 ORDER ON I.A. NO.984/2006 IN R.F.A.NO.418/2005 DISMISSED 03/08/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = R.F.A. NO. 418 OF 2005 = = = = = = = = = = = = = = = Dated this the 3rd day of August, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the 1st Addl. Subordinate Judge, Thrissur in O.S.636/87. The suit is one for recovery of possession of the property on the strength of title. By virtue of Exts.A1 and A2 documents the plaintiff had been gifted two acres of land by the father and the father and son are continuously fighting and are knocking at the doors of justice for almost 25 years. But after hearing the learned counsel for both the sides the matter still cannot attain a finality. The brief facts are, by virtue of two documents, Exts.A1 and A2 of the year 1972, father had gifted 3 items of R.F.A. 418 OF 2005 -:2:- property, i.e. one acre one cent in Re.Sy.No.109/2, 10 cents in 109/4 and 89 cents in 109/2 totaling 2 acres. 2. The borne of contention to start with was that Exts.A1 and A2 are not documents which had confirmed title on the son, plaintiff but now by virtue of a ruling of a Division Bench of this Court it has attained finality holding that Exts.A1 and A2 are valid documents. This Court by way of remand directed the property to be identified for granting the relief of recovery of possession. It is a very difficult case. Several portions of the property had been taken away by the sea which is situated on the western side. A perusal of the Commissioner's plan and report would show that the portion marked as item No.1 is 10 cents which forms item No.1 of Ext.A2. Item No.3 of the Commissioner's plan is R.F.A. 418 OF 2005 -:3:- covered by Ext.A1. Item No.2 in the Commissioner's plan is the property described as item No.2 in Ext.A2. The plan itself would show that if the properties are measured in accordance with the measurement in the document more than 20 mtrs. of item No.2 and 3 are inside the sea. It is also stated that Sy.No. 109/1 is totally in the sea. But a perusal of this plan, C2(a) would show that the Commissioner has not marked the area according to the measurement taken away by the sea. If the present plan is looked into it may appear that 89 cents and one acre one cent are available. It cannot be correct in the light of the Commissioner's report that 20 mtrs. are taken away by the sea. Similarly when there is a dispute regarding identification of the property it is to be borne in mind that the total property has to be first R.F.A. 418 OF 2005 -:4:- found out. Thereafter the properties gifted has to be marked so that one can find out which is the property that is gifted. Unfortunately defendant's father does not produce this title deed. It is seen from the documents Exts.A1 and A2 that he is claiming title over the property by virtue of a document of 1969. So unless one is able to find out that, it cannot be possible to really locate the property. In case the defendant is not prepared to cooperate for the same, then also there must be a solution for the litigation. In such cases what can be done is to find out the east-west measurement of the property after fixing the eastern line. Then take the east-west measurement and find out how much portion is taken away by the sea and mark the balance as the property available under the document, Exts.A1 and A2. When it is found out R.F.A. 418 OF 2005 -:5:- it can be safely stated that it is the property that the plaintiff is entitled to recover. Therefore the matter requires reconsideration at the hands of the trial Court. The father who has gifted the property to the son continues to enjoy the property and is merrily litigating for the 25 years. He must be asked to pay some amount to the son as mesne profits. The quantum, ultimately will depend upon the final result of the suit. By virtue of the finding of the this Court Exts.A1 and A2 are valid. Necessarily the plaintiff is entitled to some property. Now the only question is which is that property. I am informed that Rs.50,000/- has already been deposited. I direct the defendant in the case to remit Rs.30,000/- more and also permit the plaintiff to take that amount from the Court deposit on furnishing security. R.F.A. 418 OF 2005 -:6:- Therefore the judgment and decree passed by the trial court are set aside and the matter is remitted back for the following. (1) The trial court is directed to depute the very same Commissioner, if he is available, with the assistance of the Taluk Surveyor to properly identify the property and especially the property covered by Ext.A1 and A2 minus the land taken by the sea. Or in other words the property taken by the sea from Exts.A1 and A2 has to be separately shown and so it can be found which is the land which is available for recovery. (2) If the defendant co-operates and produces his title deeds let the entire property be identified and demarcate the property under Exts.A1 and A2 and then find out the portion taken away by the sea. R.F.A. 418 OF 2005 -:7:- (3) If the defendant does not cooperate the Commissioner can fix the eastern boundary taking the east-west measurements and find out the boundary and then deduct the land taken by the sea and fix the remaining property. (4) The defendant is directed to deposit a sum of Rs.30,000/- within a period of two months from today and the plaintiff is entitled to withdraw that amount plus any amount already in deposit by furnishing some security so that he can also have some enjoyment of that property which he is entitled to. (5) If the defendant fails to deposit the amount then the Court may direct delivery of the property as passed by the court below. (6) The quantum of mesne profits be adjudicated in this proceedings itself without referring it under Order 20 Rule 12 so that R.F.A. 418 OF 2005 -:8:- there can be a finality to the litigation. Parties are directed to appear before the trial Court on 4.10.2010. The trial Court shall endeavour its level best to have an early disposal of the matter. M.N. KRISHNAN, JUDGE. ul/- ul/-