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RAFIYA BEEVI MUHAMMED BEEVI versus MAITHEEN PILLAI AHAMMED KHAN

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RAFIYA BEEVI MUHAMMED BEEVI v. MAITHEEN PILLAI AHAMMED KHAN - CMA No. 94 of 1994 [2005] RD-KL 126 (23 September 2005)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CMA No. 94 of 1994()

1. RAFIYA BEEVI MUHAMMED BEEVI
... Petitioner

Vs

1. MAITHEEN PILLAI AHAMMED KHAN
... Respondent

For Petitioner :SRI.N.SUKUMARAN,S.SHYAM.

For Respondent :.

The Hon'ble MR. Justice K.T.SANKARAN

Dated :23/09/2005

O R D E R

K.T. SANKARAN, J.

................................................................................... C.M.A. Nos. 93 AND 94 OF 1994 ...................................................................................

Dated this the 23rd September, 2005



J U D G M E N T

These Civil Miscellaneous Appeals arise out ofA.S.259 of 1988 and 286 of 1988 on the file of the Court of District Judge, Thiruvananthapuram, which arose from O.S.116 of 1985, Sub Court, Thiruvananthapuram. The suit was filed by the predecessor in interest of the appellants in the Civil Miscellaneous Appeals. The reliefs prayed for in that suit are for declaration of title and possession over the plaint schedule property, for injunction and for fixation of the boundary of the plaint schedule property on its northern, western and eastern sides. The trial court decreed the suit for declaration of title and possession and fixation of boundary, but refused to grant the prayer for injunction. A.S.286 of 1988 was filed by the 34th defendant while A.S. 259 of 1988 was filed by defendants 29 to 31. The Appellate Court disposed of those appeals by a common judgment whereby the judgment and decree of the trial court was set aside and the case was remanded not to the trial C.M.A.NOS. 93 AND 94 OF 1994 2 court but to the Munsiff's Court for trial and disposal afresh.

2. The plaintiff claims title to an extent of 3 acres 25 cents and 312 1/2 sq.links as per Ext.A1 final decree in O.S.816 of 1961 of the Munsiff's Court, Neyyattinkara. The plaintiff contends that the plaint schedule property was allotted to his share as Plot No.3 shown in the plan attached to Ext.A1 final decree. The further contention of the plaintiff is that there are no boundaries on the eastern, northern and western side of the suit property and the absence of the boundaries has caused great inconvenience and hardship to the plaintiff in the matter of enjoyment of the property. It is stated by the plaintiff that as per the custom, while putting up the boundaries, the expenses are to be shared by the owners of the properties on either side of the property and according to him, the defendants are liable to pay one half of the expenses for putting up the boundaries. It is stated that defendants 1 to 25 are parties to the suit while defendant Nos.26 onwards are alienees of some among defendants 1 to 25. It is contended that defendants are attempting to exploit the absence of the boundaries and they made attempts to trespass upon the plaint schedule property. C.M.A.NOS. 93 AND 94 OF 1994 3

3. Defendants 29 to 31 as well as defendant No.34 contended that they are not bound by Ext.A1 final decree as they were not parties to that suit. The plan in O.S. 816 of 1961 shows several plots and the plaint schedule property cannot be identified for finding out the boundaries unless measured from some fixed point on the side of the eastern 'Edavazhi' and the boundaries found out. There is clear visible boundary between the properties of defendants Nos. 29, 30 and 31 and the property in the possession of the plaintiff. There is difference in level also. The dispute involved in the case can be resolved only if a Commission is appointed and the plan of the plaint schedule property is prepared by the Commissioner. The exact extent of the property can be found out only by issuing a Commission. Defendants Nos.26 onwards are not transferees of any portion of the property involved in O.S.816 of 1961.

4. The trial court held that defendants 26 onwards are alienees of some among the defendants 1 to 25 and that the alienees are bound by Ext. A1 final decree. This finding was arrived at on the assumption that alienation was in respect of the property involved in Ext.A1 suit. C.M.A.NOS. 93 AND 94 OF 1994 4 On the basis of the finding that alienees are pendente lite transferees, the Trial Court found that the final decree in Ext.A1 is binding on the alienees. On that finding, it was held that the plaintiff is entitled to get a declaratory decree as prayed for and a decree for fixation of boundary as prayed. However, the relief for injunction was not granted by the trial court on the ground that the plaintiff was not examined and no evidence was adduced to show that the plaintiff was in possession of the plaint schedule property.

5. The Appellate Court held that the defendants Nos.29 to 31 and 34 are not bound by Ext.A1 decree as the property purchased by them were not included in Ext.A1 suit. Before the Appellate Court, the appellants in A.S. 259 of 1988 produced two documents, which are assignment deeds executed by the plaintiff in the year 1972 and 1984. In the affidavit accompanying I.A.2591 of 1993, defendant No.29 stated that the plaintiff had executed document Nos.1382 of 1972 and 869 of 1984, whereby the right alleged to have been obtained by him has been transferred by him. It is also stated that the plaintiff suppressed those documents and claimed title to the entire plaint schedule property though C.M.A.NOS. 93 AND 94 OF 1994 5 really he was not having the title over the entire extent of the plaint schedule property. In I.A. 2591 of 1993, respondent No.57 in the appeal, who is one of the legal representatives of the plaintiff, filed a counter affidavit and contended that the property covered by document No.1382 of 1972 was assigned in favour of the Government and the Government was made a party to the suit. The counter affidavit in I.A. 2591 of 1993 was not filed within the time allowed by the Court and the counter affidavit was not accepted. The documents were received as additional evidence as per the order dated 08.03.1994 in I.A. 2591 of 1993 and those documents were marked as Exts. B5 and B6.

6. The Appellate Court took note of the fact that the plaintiff did not adduce any oral evidence in spite of the contentions raised by the contesting defendants that the plaintiff has no right over the whole of the plaint schedule property and that the plaintiff is not in possession of the plaint schedule property. The Appellate Court took the view that the plaintiff has to establish his title and possession, particularly when the plaintiff has assigned portions of the plaint schedule property and he cannot claim title to the whole of the plaint C.M.A.NOS. 93 AND 94 OF 1994 6 schedule property. It was held that it is necessary that "the plaintiff should enter the witness box and give evidence in support of his right and possession". The Appellate Court thought that a remand is necessary to permit the parties to adduce evidence and to allow the contesting defendants to amend their written statement, as the additional documents were accepted to incorporate their contention that the plaintiff has no title to the entire extent of the plaint schedule property. The Appellate Court also held that the trial court was not right in relying on the plan appended to Ext.A1 final decree as the Commissioner who prepared the plan was not examined by the Court. The remand was made to the Munsiff's Court, Neyyattinkara, probably taking into account the contention raised by the defendants that the Sub Court has no pecuniary jurisdiction to entertain the suit. The defendants had raised a contention in the written statement that the suit could be filed only before the Munsiff's Court.

7. I.A. 2589 of 1993 in A.S. 259 of 1988 was filed by the appellants therein to permit them to amend their written statement. The lower Appellate Court passed an order dated 21.03.1994 which reads as C.M.A.NOS. 93 AND 94 OF 1994 7 follows:

"As the additional pleading were available at the time of original written statement, I do not find any bonafide in this petition. Hence dismissed. No costs". It is to be noted that this order was passed on the date on which the judgment was passed by the lower Appellate Court, whereby permission was granted to the defendants to amend their written statement.

8. Learned Counsel for the contesting respondents raised an objection that no question of law is formulated in the C.M.As and in view of the decision of the Honourable Supreme Court in Narayanan vs. Kumaran and others (2004 (4) S.C.C 26), the appeals are liable to be dismissed. The Supreme Court held that an appeal against a remand order could be entertained only on the grounds mentioned in Section 100 of the C.P.C. C.M.As were filed in the year 1994. Though no question of law is seen raised, I do not propose to dismiss these appeals on the ground that no questions are raised. If questions of law really C.M.A.NOS. 93 AND 94 OF 1994 8 arise for consideration, those questions can be formulated and decision arrived at.

9. Learned Counsel for the appellants contended that the lower Appellate Court failed to exercise the jurisdiction vested in an appellate forum and it did not consider the appeals on its merits. The Counsel contended that on that short ground the C.M.As are liable to be allowed with a direction to the lower Appellate Court to consider and dispose of the appeals on the merits. He pointed out that the Appellate Court also did not properly consider whether the additional documents produced by the contesting defendants were really liable to be accepted as additional evidence. It was pointed out that though a stay was granted by the lower Appellate Court against the execution of the decree, later the stay order was modified limiting the scope of stay in so far as fixation of boundary on the northern side of the plaint schedule property is concerned. Though defendants 29 to 31 filed C.R.P. 386 of 1991 challenging the order passed in the stay petition by the Appellate Court, the revision was dismissed by this Court. The Counsel pointed out that on the basis of the modification of the stay order, western and eastern boundaries of the C.M.A.NOS. 93 AND 94 OF 1994 9 plaint schedule property were fixed and what remains is fixation of northern boundary alone. It was argued by him that the contesting defendants are bound by Ext A1. decree and the alienations in their favour are hit by lis pendens.

10. Counsel for the contesting respondents submitted that there is no plea regarding lis-pendens. It is not stated in the plaint that defendants 29 to 31 and 34 are bound by the decree in O.S.816 of 1961. Counsel submitted that in spite of the contention raised by the defendants, the plaintiff did not take out a Commission to identify the plaint schedule property and to find out whether the boundary should be fixed. The property was not measured. It was pointed out that a portion of the property was carved out for the formation of a road and unless that area is found out, the northern boundary cannot be fixed properly. The Counsel also submitted that the plaintiff has not adduced any oral evidence and that material facts were suppressed by him. The plaintiff is not entitled to the discretionary remedy of declaratory decree, since facts were suppressed and the material documents were not produced before the Court. He relied on the decision in S.P. Chengalvaraya (dead) C.M.A.NOS. 93 AND 94 OF 1994 10 by L.Rs. vs. Jagannath (dead) by L.Rs.( AIR. 1994 S.C. 853) to support his contention in that regard.

11. I am of the view that the remand order is really in favour of the plaintiff. On the basis of the materials available before the trial court, the suit could not be decreed. The plaintiff has not taken out a Commission to identify the property. He has not adduced any oral evidence, though he has stated that he is the owner of 3 acres 25 cents and 312 1/2 Sq. links as allotted to him under Ext.A1 final decree. It has come out in evidence that that portion of the plaint schedule property was assigned by him. This fact was not brought to the notice of the Court and he did not disclose the full facts before the Court. A declaratory decree is in the discretion of the Court. It is not as of right. But the Appellate Court did not decide against the plaintiff and granted an opportunity to both parties to adduce evidence and to produce materials and data. This is really in favour of the plaintiff as well, and therefore, he was not justified in filing the appeals challenging the remand.

12. Though the Appellate Court dismissed I.A.2589 of 1993 filed by the contesting defendants to amend the written statement, as C.M.A.NOS. 93 AND 94 OF 1994 11 per the impugned judgment, they were allowed to amend the written statement. I am of the view that I.A. 2589 of 1993 is liable to be allowed. Therefore, the order in I.A. 2589 of 1993 is set aside and that petition is allowed.

13. The additional documents produced by the appellants in A.S. 259 of 1988 were accepted by the lower Appellate Court and those documents were marked as Exts. B5 and B6. At the same time, the document produced by the appellants herein (legal representatives of the plaintiff) was not accepted in evidence probably on the ground that counter affidavit filed by them was not accepted on the ground of delay. I set aside the order rejecting the counter affidavit and accept the counter affidavit in I.A.2591 of 1993 and also accept the documents produced along with the counter affidavit in I.A. 2591 of 1993 and mark the same as Ext.A28.

14. I am of the view that the Appellate Court was not justified in holding that alienation in favour of defendants Nos. 29 to 31 and 34 are not hit by lis-pendens. The Appellate Court arrived at this finding on the basis that the properties covered by assignment deeds in favour of C.M.A.NOS. 93 AND 94 OF 1994 12 those defendants are not included in O.S.816 of 1961. As a matter of fact, it was not ascertained either by the trial court or by the lower Appellate Court as to whether those properties were included in O.S. 816 of 1961. Since no Commission report was available and since the property was not measured, a decision, either way, on that point would be premature. It is to be noted that there is absolute lack of pleadings on that point and absolute lack of materials to arrive at a finding in one way or other in that regard. I am of the view that, in nature of the judgment that is to be passed in these C.M. Appeals, I would be justified in setting aside the finding of the Appellate Court that alienation in favour of defendants Nos. 29 to 31 and 34 are not hit by lis-pendens.

15. The Appellate Court has held that the plaintiff is liable to take out a Commission to identify the plaint schedule property. An experienced Commissioner shall be appointed by the trial court. The Commissioner shall file a detailed report and a plan with the assistance of a Taluk Surveyor or a Village Officer. The plaintiff shall meet all the necessary expenses in connection with the issuing of Commission.

16. In view of the liberty given to the defendants to amend their C.M.A.NOS. 93 AND 94 OF 1994 13 written statement and in view of the fact that there is lack of pleadings on the question of lis-pendens, I think that the plaintiff can also be given the liberty to amend the plaint and to set out such contentions, as are relevant. Needless to say that on such amendment of the plaint, defendants shall have the opportunity to file additional written statement.

17. Counsel for the appellants contended that the lower Appellate Court was not justified in remanding the case to a Court other than the trial court. The suit was tried and disposed of by the Sub Court but the remand was made to the Munsiff's Court . On the materials available , I am of the view that the suit is maintainable before the Sub Court and therefore, the remand should have been made to the Subordinate Court.

18. No substantial question of law really arise for consideration in favour of the appellants and therefore there is no justification for interference in these C.M. Appeals. However, when it is noticed that the lower Appellate Court erred in its finding that the alienation in favour of defendants Nos. 29 to 31 and 34 is not by lis-pendens as it is based on insufficient materials, I am inclined to set aside that finding, exercising my jurisdiction under Order XLI Rule 33 C.P.C. C.M.A.NOS. 93 AND 94 OF 1994 14

19. It is submitted by the Counsel on either side that the properties involved in the suit are situated within the territorial jurisdiction of Court of the Subordinate Judge, Neyyattinkara at present, as territorial jurisdiction limit has since been changed. Therefore, it is only just and proper to remand the suit to Sub Court, Neyyattinkara for trial and disposal. Accordingly the judgment of the lower Appellate Court is modified to the extent indicated above. The appeals are disposed of as above. No costs. SD/- K.T. SANKARAN,

JUDGE.

/true copy/

P.A. TO JUDGE

C.M.A.NOS. 93 AND 94 OF 1994 15 lk C.M.A.NOS. 93 AND 94 OF 1994 16 KURIAN JOSEPH,

JUDGE.

C.M.A.NOS. 93 AND 94 OF 1994 17 K.T. SANKARAN,

JUDGE.

lk KURIAN JOSEPH &

K.T. SANKARAN, JJ.

........................................................ No. .........................................................

Dated this the

J


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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