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KUNJUKRISHNA PILLAI JANANRDHANAN PILLAI v. VELAYUDHAN PILLAI VIKRAMAN NAIR - SA No. 878 of 1994  RD-KL 13791 (23 July 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMSA No. 878 of 1994()
1. KUNJUKRISHNA PILLAI JANANRDHANAN PILLAI
1. VELAYUDHAN PILLAI VIKRAMAN NAIR
For Petitioner :SRI.V.GIRI
For Respondent :SRI.G.UNNIKRISHNON
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
S.A. NO. 878 OF 1994
Dated this the 23rd day of July, 2007
Defendants in O.S.925/1983 on the file of Additional Munsiff Court, Neyyattinkara are the appellants. Plaintiff is the first respondent and second respondent the third defendant. First respondent instituted the suit seeking a decree for declaration of his title to the plaint schedule property and also for permanent prohibitory injunction contending that he has been in possession of the property under Ext.A2 assignment deed. Appellants and respondents are the children of Kunjukrishna Pillai. Plaint schedule property is the southern 3.250 cents of 6.50 cents which was allotted to Ambujakshi Amma as plot No.23 under Ext.A1 partition deed. On the death of Ambujakshi Amma, her rights devolved on her two sons Ramachandran Nair and Vikraman Nair. Under Ext.A2, first respondent purchased one half right being the S.A.878/1994 2 southern 3.250 cents and under Ext.A3 appellants purchased the northern 3.250 cents. Appellants resisted the suit contending that Ambujakshi Amma was not in possession of the property and under Ext.A2 first respondent did not obtain any right or title or possession and therefore first respondent is not entitled to the decree sought for. Since the identity of the property was disputed PW2 was appointed as the Commissioner. Commissioner submitted Ext.C1 report along with Ext.C1(a) and C1 (b)plan. Ext.C1(a) plan was prepared in accordance with the lie of the property and Ext.C1(b) plan was prepared which according to Commissioner should be the property, if it is located with reference to the links line provided in the plan accompanying Ext.A1 partition deed. It was so prepared stating that that links line as provided in the plan is not available in the property. On the side of the first respondent, first respondent as PW1 and Commissioner as PW2 were examined. Exts.A1 to 10 were also marked. Exts.C1 to C1(b) were also S.A.878/1994 3 marked. Appellants did not adduce any evidence, either documentary or oral. Learned Munsiff accepted Ext.C1(a) plan and fixed A B K L as the plaint schedule property and plot B C K J as 3.250 cents obtained by appellants under Ext.A3 and declared title of respondents to plot A B K L and granted a decree for injunction. Appellants challenged decree and judgment before District Court, Thiruvananthapuram in A.S.59/1988. Learned District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the Second appeal.
2. The appeal was admitted formulating the following substantial questions of law. 1) Whether courts below were justified in granting a decree on the basis of the lie of the property when the suit is based on a partition deed and parties claim their right under the partition deed? 2) Whether courts below were justified in S.A.878/1994 4 granting an injunction when appellants are in uninterrupted possession of the property? 3) When a plan or report is found to be not acceptable, is it not the duty of the court to remit the same and obtain fresh plan and report?
3. Learned counsel appearing for appellants and first respondent were heard.
4. The argument of learned counsel appearing for appellants was that along with Ext.A1 partition deed, Ext.A10 plan was appended wherein the properties allotted to different sharers were shown and the Commissioner should have fixed the disputed property on the basis of that plan and as it is not so done courts below should not have accepted Ext.C1(a) plan and should have accepted Ext.C1(b) plan and if it is insufficient the report and plans should have been set aside or remitted and Commissioner should have been directed to furnish a proper plan after proper identification of the property. It was also argued that in the plaint itself plaint schedule S.A.878/1994 5 property was described with reference to the plan appended to Ext.A1 partition deed and in such circumstance, without proper identification with reference to that plan in Ext.A1, courts below should not have granted the decree.
5. Learned counsel appearing for first respondent argued that Ext.C1(b) plan was rejected by courts below as it was prepared only on the basis of surmises and existence of a compound wall on A L line marked by the Commissioner in Ext.C1(a) plan establish and it was not disputed that and it is the northern boundary of plot No.20 allotted to the plaintiff and 3.250 cents covered under Ext.A2 was purchased as a way to the property which was being used as a way even earlier and that way could only be to the north of A L line and the Commissioner correctly demarcated the same in Ext.C1(a) plan and both the courts accepted the same and in such circumstance, there is no reason to interfere with the identification of the property. It was also pointed out that as per S.A.878/1994 6 Ext.A1 partition deed an extent of 79 cents less 6 = cents covered under plot No.6 was allotted to appellants and along with that appellants have purchased 3.250 cents covered under Ext.A3 sale deed and the total extent owned by them can only be less than 79 cents and as per Ext.C1(a) plan even after excluding the plot A B K L appellants are in possession of more extent than 79 cents and in such circumstance there is no reason to interfere with the decree granted by courts below. Learned counsel also argued that what was contended by appellants in the written statement was that first respondent did not get any right under Ext.A2 sale deed and Ambujakshi Amma was never in possession of the property and courts below on the evidence found that Ambujakshi Amma was in possession of the property much earlier and eventhough decree for redemption was obtained possession was not taken from her and in such circumstance, courts below found that plaint schedule property is demarcated in Ext.C1(a) plan and there is no reason to S.A.878/1994 7 interfere with the decree.
6. Under Ext.A1 partition deed the family
properties were divided in 1952. Ext.A10 plan
shows the division of
M.SASIDHARAN NAMBIAR, J.
23rd JULY, 2007
M.SASIDHARAN NAMBIAR, J.S.A.NO.878 /94
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