Allowed

Poovammalla Prambath Kandiyan Kunhikanna (Died) v. Vellamvally Anandan, (Died)

Kerala HC7 Jun 2023AS/278/2003

Case brief

AI extract

What is this about?

This appeal challenged the dismissal of a suit for recovery of possession due to failure to prove title and identity of the property. The High Court allowed the appeal, set aside the trial court's findings on property identification, and remanded the trial for a fresh identification based on the Ext.B2 plan and title deeds.

What did the court decide?

The appeal allowed. Decree and judgment of trial court set aside. Suit remanded for fresh identification based on Ext.B2 plan. Costs of Rs. 25,000 awarded to respondent.

Poovammalla Prambath Kandiyan Kunhikanna (Died) Vs Vellamvally… — Partition | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SATHISH NINAN

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WEDNESDAY, THE 7^TH DAY OF JUNE 2023 / 17TH JYAISHTA, 1945

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AS NO. 278 OF 2003

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AGAINST THE JUDGMENT DT. 13.08.01 IN OS 57/1996 OF

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PRINCIPAL SUB COURT, THALASSERY

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APPELLANTS:

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1 POOVVAMMALLA PARAMBATH KANDIYAN KUNHIKANNAN S/O. KUNHIRAMAN,RESIDING AT MOKERI AMSOM,VALLIYAI DESOM, THALASSERY TALUK. [DIED; LRs IMPLEADED]

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*ADDL. APPELLANTS 2 TO 10

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ADDL. A2 PALAKKANDY MADHAVI, W/O. LATE KANDYAN KUNHIKKANNAN, MOKERI AMSOM,VALLIYAYI DESOM, MUTHIYANGA P.O. THALASSERY TALUK.

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ADDL. A3 VILASINI, D/O. LATE KANDYAN KUNHIKKANNAN, MOKERI AMSOM,VALLIYAYI DESOM, MUTHIYANGA P.O. THALASSERY TALUK.

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ADDL. A4 P.P. PRASANNA, D/O. LATE KANDYAN KUNHIKKANNAN, MOKERI AMSOM,VALLIYAYI DESOM, MUTHIYANGA P.O. THALASSERY TALUK.

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ADDL. A5 P.P. THANKAM, D/O. LATE KANDYAN KUNHIKKANNAN, MOKERI AMSOM,VALLIYAYI DESOM, MUTHIYANGA P.O. THALASSERY TALUK.

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AS NO. 278 OF 2003

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-: 2 :-

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ADDL. A6 P.P. BHARATHAN, S/O. LATE KANDYAN KUNHIKKANNAN, RESIDING AT MOKERI AMSOM,VALLIYAYI DESOM, MUTHIYANGA P.O. THALASSERY TALUK.

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ADDL. A7 P.P. PRAKASHAN, S/O. LATE KANDYAN KUNHIKKANNAN, RESIDING AT MOKERI AMSOM,VALLIYAYI DESOM, MUTHIYANGA P.O. THALASSERY TALUK.

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ADDL. A8 P.P. PRADEEPAN, S/O. LATE KANDYAN KUNHIKKANNAN, RESIDING AT MOKERI AMSOM,VALLIYAYI DESOM, MUTHIYANGA P.O. THALASSERY TALUK.

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ADDL. A9 P.P. SANAL KUMAR, S/O. LATE KANDYAN KUNHIKKANNAN, RESIDING AT MOKERI AMSOM,VALLIYAYI DESOM, MUTHIYANGA P.O. THALASSERY TALUK.

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ADDL. A10 P.P. BIJU, S/O. LATE KANDYAN KUNHIKKANNAN, RESIDING AT MOKERI AMSOM,VALLIYAYI DESOM, MUTHIYANGA P.O. THALASSERY TALUK.

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***[THE LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 10 VIDE ORDER DATED 04.10.10 IN IA 3497/2010]**

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BY ADVS.

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SRI.A.K.ALEX SRI.CIBI THOMAS

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RESPONDENT/DEFENDANT:

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1 VELLAMVALLY ANANDAN, (DIED; LRs IMPLEADED) S/O. RAMAN, AGRICULTURIST,RESIDING AT PUTHUR AMSOM, CHENDAYAD DESOM, THALASSERY TALUK.

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AS NO. 278 OF 2003

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-: 3 :-

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**** ADDL. RESPONDENTS 2 TO 6**

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ADDL. R2 JANU, W/O. DECEASED ANANDAN,KOLANGARANTAVIDA HOUSE,PUTHUR AMSOM,CHENDAYAD DESOM, CHENDAYAD P.O. THALASSERY - 670 692.

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ADDL. R3 PREMI, D/O. DECEASED ANANDAN, KOLANGARANTAVIDA HOUSE,PUTHUR AMSOM,CHENDAYAD DESOM, CHENDAYAD P.O. THALASSERY - 670 692.

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ADDL. R4 SHYLAJA, D/O. DECEASED ANANDAN, KOLANGARANTAVIDA HOUSE,PUTHUR AMSOM,CHENDAYAD DESOM, CHENDAYAD P.O. THALASSERY - 670 692. ADDL. R5 SAJEEVAN, S/O. DECEASED ANANDAN, KOLANGARANTAVIDA HOUSE,PUTHUR AMSOM,CHENDAYAD DESOM, CHENDAYAD P.O. THALASSERY - 670 692. ADDL. R6 SINOJ, S/O. DECEASED ANANDAN, KOLANGARANTAVIDA HOUSE,PUTHUR AMSOM,CHENDAYAD DESOM, CHENDAYAD P.O. THALASSERY - 670 692.

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**** [THE LEGAL HEIRS OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS SUPPLEMENTAL RESPONDENTS 2 TO 6 VIDE ORDER DATED 03.09.2015 IN IA 4321/2010]**

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BY ADV SRI.V.V.ASOKAN (SR.)

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THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 07.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = A.S. No.278 of 2003

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= = = = = = = = = = = = = = = = = = Dated this the 7^th day of June, 2023

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J U D G M E N T

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The suit for recovery of possession on the strength

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of title was dismissed by the court. The plaintiff is in appeal.

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The plaint schedule property is described as 2 acres in R.S. 137 of Cheruvancherry desom. The plaintiff claims title over the property on the basis of Exts.A1 and A2 documents. The property of the defendant is on the immediate north of the plaint schedule property. Alleging trespass, the suit has been filed for recovery of possession on the strength of title.

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The defendant denied the title of the plaintiff and contended that the property belongs to him as per Ext.B9 document.

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The trial court held that the plaintiff failed to prove title and identity of the plaint schedule

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A.S. No.278 of 2003

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-: 2 :-

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property, and accordingly dismissed the suit.

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Heard learned counsel on either side.

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A larger extent of property including the plaint schedule property was the subject matter of a suit for Partition as, OS 529/1934. Ext.B1 is the final decree, Ext.B2 is the plan and Ext.B3 is the share list, therein. As per Ext.B1 decree, plot-B in Ext.B2 plan was allotted to one Ambu Nair of Akkare Veettil. As per Ext.B9 the defendant obtained property included in plotB in Ext.B2 plan. Exts.B4 and B8 are the prior deeds whereunder title flowed from Ambu Nair. Thus the defendant obtained property included in plot-B in Ext.B2 plan.

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Plaintiff claims title to the property as per Exts.A1 and A2 documents. Exts.A4 and A5 are the prior deeds. According to the plaintiff, the property claimed by him is included in plot-A in Ext.B2 plan. It is not in dispute between the parties that plot-B in Ext.B2 is

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A.S. No.278 of 2003

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-: 3 :-

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on the northern side and plot-A in Ext.B2 is to its south. The best way to identify the properties of the

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parties is to identify the plots A and B in Ext.B2 plan. However, the same was not done.

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Though the suit is one on title, the property

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has not been identified with reference to the title deeds. Therefore, there has been no proper identification of the plaint schedule property.

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One Rajan, who is allegedly a nephew of the plaintiff, filed a suit as OS 18/1980 against the defendant herein. The said suit was dismissed. Exts.B10 and B11 are the judgment and decree. The appeal filed against the same was also dismissed as per Ext.B12. Referring to the Commissioner's report and plan in that suit, which were marked as Exts.B13 to B16, the trial court entered a finding that the properties included in that suit is included in plot-B in Ext.B2 plan. The commissioner who prepared the said report and plan was

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A.S. No.278 of 2003

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not examined. The plaintiff was not a party to the said suit. That apart, as noticed above, in the present suit there has been no identification of the plaint schedule property with reference to Ext.B2 plan. Therefore, the Court could not have relied on Exts.B13 to B16.

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The trial court has next relied on Ext.B21 Commissioner's plan prepared in OS 120/1987. That was a suit filed by the plaintiff against the defendant for prohibitory injunction against trespass. The suit was dismissed for default. The restoration application filed was also dismissed. The plaintiff was unsuccessful in the appeal and revision before this Court. The suit was not disposed of on merits. The Commissioner who prepared the said plan – Ext.B21 was not examined. The Commissioner in the present case has not made any identification based on the said plan. Therefore, the trial court could not have relied on Ext.B21 plan in OS 120/1987 to arrive at a finding regarding identity of

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A.S. No.278 of 2003

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the plaint schedule property. The findings of the trial court with regard to identification is thus, liable to be set aside.

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As held supra, Exts.C1 report and C2 plan

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prepared in the case are not at all helpful to resolve the issue involved. Going by Exts.C1 report and C2 plan though the defendant is entitled for only 2 acres of property he is presently in possession of almost double the extent. The property has not been identified.

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The learned counsel for the appellant prayed

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that the suit being one on title and the Commissioner having not properly identified the property, an opportunity may be granted to the plaintiff to have a proper identification of the property.

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Of course, it was for the plaintiff to have the identification done properly. He should have at least sought for remitting the report. Anyhow, considering the entire facts as noted above, it is deemed appropriate

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A.S. No.278 of 2003

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-: 6 :-

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that the plaintiff be afforded an opportunity for a proper identification of the plaint schedule property. As noticed supra, the findings arrived at by the trial court with regard to identification of the plaint schedule property are liable to be set aside and I do so.

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Considering the fact that the suit is of the

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year 1996 and the inconvenience caused to the respondent-defendant, I deem it appropriate to order costs.

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Resultantly, this appeal is allowed. The decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for disposal denovo after fresh identification based on Ext.B2 plan and the title deeds of the parties. The suit is being one of the year 1996, the trial court shall expedite its disposal. The appellant shall pay an amount of ` 25,000/- as costs to the counsel appearing for the respondent-defendant

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A.S. No.278 of 2003

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before this Court within a period of two weeks from today. Parties to appear before the trial court on

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30.06.2023.

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Sd/-

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SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

Poovammalla Prambath Kandiyan Kunhikanna (Died) v. Vellamvally Anandan, (Died)

Case brief

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Poovammalla Prambath Kandiyan Kunhikanna (Died) v. Vellamvally Anandan, (Died)

Case brief

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