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2023 DIGILAW 1012 (KER)

Ithachutty v. Asia Umma

2023-12-07

SATHISH NINAN

body2023
JUDGMENT : Sathish Ninan, J. Challenging the decree for recovery of possession on the strength of title, the defendants 5, 10 and 14 are in appeal. 2. The plaint 'A' schedule property is a portion of the plaint 'B' schedule. Plaint 'A' schedule is item No.3 (Tak 3) in the 'B' schedule. The plaint 'B' schedule is a portion of plaint 'C' schedule. Recovery of possession is sought in respect of plaint 'A' schedule property. 3. The sole plaintiff died and the legal heirs are the supplemental plaintiffs. According to the plaintiffs, the 'C' schedule property belonged in Jenmom to one "Kozhikkotte Kizhakkekovilakam". One Payi Amma got assignment of the property from the Jenmi under Kanam Deed No.1024 of 1889. Subsequently the said Payi Amma and others conveyed the property under Ext.A1 Sale Deed No.1094 dated 26.10.1889 to one Veerankutty, the maternal grand father of the original plaintiff. On the death of Veerankutty, the plaintiff's mother Kunhathunni Umma enjoyed the plaint 'B' schedule property as a legal heir. While so, she took the plaint 'B' schedule property on direct lease from the Jenmi as per Lease Deed No.209 of 1087. Subsequently the lease was renewed as per Ext.A7 document No.1637 dated 25.08.1928. The plaint 'B' schedule property is included as item No.5 in Ext.A7. The plaint 'A' schedule property is claimed to be the property described in Tak 3 in the said item 5 in Ext.A7 and situated as the western most among the three Taks. On the death of the mother-Kunhathunni Umma, the rights over the property vested with the plaintiff as the sole legal heir. Thus the plaintiff claimed title over the property. 4. According to the plaintiff, in respect of the property situated on the immediate eastern side of the plaint 'A' schedule herein, the predecessor-in-interest of the defendants viz. one Kunhimuhammad had filed a suit as OS 359/1971 before the Munsiff's Court, Manjeri, against the original plaintiff herein and others, claiming right over the property. The suit was later transferred to the Munsiff's Court, Perinthalmanna, and was re-numbered as OS 335/1973. Ext.A1 document produced in the present suit was marked as Ext.A34 therein. The larger extent of property including the plaint schedule property herein was identified in the said suit in Ext.C8 plan prepared therein, as included in item No.10 in Ext.A1. The said plan is produced in the present suit as Ext.A4. Ext.A1 document produced in the present suit was marked as Ext.A34 therein. The larger extent of property including the plaint schedule property herein was identified in the said suit in Ext.C8 plan prepared therein, as included in item No.10 in Ext.A1. The said plan is produced in the present suit as Ext.A4. Ext.A4 plan identified the eastern and western boundaries of item No.10 property in Ext.A1. 5. The earlier suit was decreed by the trial court. In first appeal, the first appellate court reversed the decree and dismissed the suit. Thereupon the present suit was filed for injunction simplicitor. However, on appeal before this Court in S.A.1062 of 1989, this Court found that the property situated on the western side of the 'A' schedule property therein, that is the plaint 'A' schedule property in this suit and the property further to its west, is admittedly in the possession of the plaintiffs therein (by then the original plaintiff was no more and the legal heirs namely, the defendants in this suit were impleaded). A decree for prohibitory injunction was granted in respect of the said property. Thereafter, the present suit was amended for recovery of possession on the strength of title. 6. The defendants denied the title of the plaintiffs. It was claimed that their predecessor Kunhimuhammad had obtained title over the property as per Ext.B3 Sale Certificate dated 14.08.1933, in O.S. 87/1931 of the District Munsiff, Manjeri and Ext.B4 delivery kaichit therein. The plaint 'A' schedule property herein is a portion of item No.8 in Ext.B3, it was contended. 7. The trial court held that the Advocate Commissioner had in Ext.A4 plan prepared in O.S. 359/1971 (renumbered as O.S. 335/73) identified item 10 in Ext.A1 and that the present plaint 'A' schedule property forms its part. However, the suit was dismissed finding that the plaintiff has not produced the title deed and has not proved title over the property. There was another suit as O.S.135 of 1991 filed by the supplemental 5th defendant in O.S.249 of 1989 for injunction, he being the assignee of a portion of the property. The said suit was also jointly tried and was dismissed. The plaintiff in O.S.249 of 1989 alone preferred appeal before this Court as A.S.39 of 2001. There was another suit as O.S.135 of 1991 filed by the supplemental 5th defendant in O.S.249 of 1989 for injunction, he being the assignee of a portion of the property. The said suit was also jointly tried and was dismissed. The plaintiff in O.S.249 of 1989 alone preferred appeal before this Court as A.S.39 of 2001. This Court as per judgment dated 12.10.2009 set aside the decree and remanded the matter enabling the plaintiff to produce the relevant document and directing the trial court to consider the issue of title. Thereafter the plaintiffs produced their title deed, Ext.A7. The trial court upheld the title of the plaintiff and granted a decree for recovery of possession. 8. I have heard Sri.S.V.Balakrishna Iyer, the learned Senior Counsel for the appellants and Sri.T.Sethumadhavan, the learned Senior Counsel on behalf of the contesting respondents. 9. The points that arises for determination are :- (i) Is the finding of the trial court upholding the title of the plaintiff on the basis of Exts.A4 and C3, the Commissioner's plans, sustainable? (ii) In the light of Ext.A4 Commissioner's plan which was accepted by the Courts in the earlier round of litigation, are the defendants entitled urge regarding indentification at variance from Ext.A4 plan ? 10. Ext.C3 is the Commissioner's plan prepared in the suit. Ext.A4 is the Commissioner's plan in the previous suit O.S. 359/1971 (re-numbered as OS 335/1973). As stated earlier, the earlier suit was one filed by the predecessor-in-interest of the defendants against the plaintiff herein, in respect of the property which lies adjacent to the east of the present plaint 'A' schedule property. In that suit, the predecessor-in- interest of the present defendants relied on Exts.B3 sale certificate and B4 delivery kaichit, and contended that the property is included in item 8 therein. The original plaintiff in the present suit, who was the defendant in that suit had relied on Ext.A1 document herein which was marked as Ext.A34 therein. 11. The Commissioner in the earlier suit identified the property covered under Exts.A1 and B3 herein. Ext.A4 Commissioner's plan prepared in the said suit and Ext.C3 the Commissioner's plan prepared in the present suit are virtually identical. The admitted property of the plaintiff herein is on the eastern side and that of the defendant is on the western side. The main issue is on the boundary separating the properties of the parties. Ext.A4 Commissioner's plan prepared in the said suit and Ext.C3 the Commissioner's plan prepared in the present suit are virtually identical. The admitted property of the plaintiff herein is on the eastern side and that of the defendant is on the western side. The main issue is on the boundary separating the properties of the parties. The western boundary of item 10 in Ext.A1 is a 'Kuzhinjodi'. So also, the eastern boundary of item No.8 in Ext.B3 claimed by the defendants herein is, 'Kuzhinjodi'. In Ext.A4 plan, the Commissioner identified the 'Kuzhinjodi' as claimed by the defendants therein (plaintiffs herein) as situated on the western side of the present plaint 'A' schedule property and was shown in green shade. The same is marked in Ext.C3 plan as "K1". The plaintiffs therein (defendants in the present suit) claimed that the 'Kuzhinjodi' described as the boundary is the one situated further towards the east and it forms the eastern boundary of the plaint 'A' schedule property described therein. As noticed earlier, the plaint 'A' schedule property in the earlier suit is situated on the immediate eastern side of the present plaint 'A' schedule property. The 'Kuzhinjodi' on the eastern side as claimed by the plaintiffs in the said suit (defendants herein) was marked in red shade in Ext.A4 plan. The same is marked as "K2" in Ext.C3 plan. The Commissioner reported that there is no 'Kuzhinjodi' as such in existence in the place "K2", but that the said portion is lying at a lower level. If "K1" is accepted as the boundary separating the properties of the parties then the present plaint 'A' schedule property will fall within item 10 in Ext.A1. 12. The present plaint 'A' schedule property is known as "Orappankunnu" and the property to its east is known as "Annakarakunnu". The present plaint 'A' schedule property is shown in green shade in Ext.C3 plan and is shown in tick marks in Ext.A4 plan. 13. 12. The present plaint 'A' schedule property is known as "Orappankunnu" and the property to its east is known as "Annakarakunnu". The present plaint 'A' schedule property is shown in green shade in Ext.C3 plan and is shown in tick marks in Ext.A4 plan. 13. Every attempt is made by the learned counsel for the appellant to establish before this Court that the identification done in Ext.A4 plan fixing the green shaded 'Kuzhinjodi' on the west ("K1" in C3) as the western boundary of item 10 in Ext.A1 is not correct and that the western boundary could only be the red shaded 'Kuzhinjodi' in Ext.A4 (i.e. K2 in Ext.C3); and so also that it is the red shaded 'Kuzhinjodi' which is the eastern boundary of item 8 in Ext.B3. The learned Senior Counsel made every endeavour to establish the same by referring to the boundary descriptions of the various items included in Ext.A1 and Ext.B3. However, the argument is not liable to be accepted in the light of the remand order by this Court in A.S.39 of 2001 accepting the identification done in Ext.A4 plan. For the said reason the said arguments are not being adverted to in detail. 14. Ext.A1 marked in the present suit was produced and marked as Ext.A34 in the earlier suit. Item No.10 in Ext.A1 which is claimed to include the present plaint 'A' schedule property and also the plaint 'A' schedule property in the earlier suit, which is situated on the immediate eastern side, were identified in Ext.A4 plan obtained in the earlier suit, as included in item No.10 in Ext.A1. In the remand order dated 12.10.2009 in AS 39/2001, this Court held that the eastern and western boundaries of item 10 in Ext.A34 (Ext.A1 herein) has been identified and located by the Commissioner in Ext.A4 (Ext.C8 in the earlier suit). The identification done under Ext.A4 was accepted by this Court. It would be appropriate to refer to paragraph 4 of the remand order :- "4. I have perused Ext.A4 plan in detail. The property shown as plaint A schedule property in OS No.335/1973 is identified and shown in red stripes. The measurement is 69 x 81 (six feet koles). The Commissioner also identified the properties possessed by the plaintiff in that suit by red tick marks. The Commissioner also located the western and eastern boundaries of item No.10 of Ext.A34. The property shown as plaint A schedule property in OS No.335/1973 is identified and shown in red stripes. The measurement is 69 x 81 (six feet koles). The Commissioner also identified the properties possessed by the plaintiff in that suit by red tick marks. The Commissioner also located the western and eastern boundaries of item No.10 of Ext.A34. The lines denoting railway track are the western and eastern boundaries respectively. In Ext.C8 the Commissioner has shown the property in the possession of the plaintiff with red tick marks and the disputed portion lying to the east of it with red stripes." This Court noticed that item 10 in Ext.A1 has been identified in the earlier round of litigation. It would be appropriate to refer paragraph 14 of the remand order which reads thus:- "14. I have examined the common judgment passed by the trial court in O.S. Nos.249/1989 and 135/1991. Apart from narrating the facts and respective contentions of the parties, the trial court did not discuss effectively the questions relating to the title to the plaint schedule property and related questions. Moreover, the trial court declined to accept the plaintiff's title in the absence of production of documents. The properties belonging to the plaintiff was identified by the commissioner in Ext.C8 plan and the same was accepted by the lower appellate court and this Court in second appeal. So the question of identification of the disputed property cannot be re-agitated by the parties. The further question for decision in this case is whether the plaintiff has got title to plaint schedule property which is lying on the west of AB line and east of the line denoting railway track in Ext.C8 plan (Ext.A4 plan in the present suit). Though the matter was elaborately considered by the court below the claim of the plaintiff's title is not seen effectively discussed or appreciated in the judgment. Moreover the issue regarding title was not considered based on the respective contentions and documents supporting title. Therefore, the documents relied on by the respective parties shall be discussed on the basis of the identification made by the Commissioner in Ext.A4 plan. A judgment on the above said issues can only be passed after considering other documents which are yet to be produced by the appellants. Therefore, the documents relied on by the respective parties shall be discussed on the basis of the identification made by the Commissioner in Ext.A4 plan. A judgment on the above said issues can only be passed after considering other documents which are yet to be produced by the appellants. In such circumstances, the matter shall be reconsidered by the trial court within the time frame to be fixed by this Court." So, in the remand order this Court held :- (i) Item No.10 in Ext.A1 has been located in Ext.A4 plan. (ii) The plaint 'A' schedule property herein (disputed property) has been identified in Ext.A4 plan. (iii) Issue of identification of the plaint 'A' schedule property (disputed property) cannot be re-agitated. (iv) The title deed of the plaintiff has not been produced. (v) Whether the plaintiff has title over plaint 'A' schedule property is to be decided with reference to the title deed of the plaintiff which is to be produced. (vi) Opportunity was granted to the plaintiff for production of the title deed. 15. The parties are bound by the remand order. At this stage it is not open for the defendants-appellants to contend against the identification done in Ext.A4. 16. After the remand what survives for consideration is, whether the plaintiff has proved title over plaint 'A' schedule property on the strength of their title deed which remained to be produced. No doubt, Ext.A4 plan identified the present plaint 'A' schedule property to be included in item 10 in Ext.A1. However, Ext.A7 relates only to a portion of the property covered under item No.10 in Ext.A1. After the remand, the plaintiff produced Ext.A7, being their title deed. Whether Ext.A7 relates to the plaint 'A' schedule property is the question to be decided. 17. At paragraphs 2 and 3 of the plaint it is stated that the plaint 'C' schedule property belonged to the plaintiff's maternal grand father Veerankutty as included in item No.10 in Ext.A1, and that on his death the plaint 'B' schedule property which is a portion of plaint 'C' schedule was in the enjoyment of the plaintiff's mother Kunhathunni Umma. It is claimed that the plaint 'B' schedule along with other properties, was taken on direct lease by the plaintiff's mother from the Jenmi under document No.209/1087. The lease was subsequently renewed as per Ext.A7 document of the year 1928. It is claimed that the plaint 'B' schedule along with other properties, was taken on direct lease by the plaintiff's mother from the Jenmi under document No.209/1087. The lease was subsequently renewed as per Ext.A7 document of the year 1928. The plaint 'A' schedule is claimed to be included in Tak 3 of item No.5 to Ext.A7 and is a portion of the plaint 'B' schedule. Therefore, even according to the plaintiff, the entire property included in item No.10 in Ext.A1 was not taken on lease by the plaintiff's mother but only a portion thereof. Therefore, to get a decree it is not sufficient for the plaintiff to prove that the plaint 'A' schedule is taken in item 10 to Ext.A1, but has to prove that it is included in Tak 3 of item No.5 to Ext.A7 as claimed by him. It is to enable the same that this Court had remanded the suit. 18. In the plaint it is pleaded that the plaint 'A' schedule property is included in Tak 3 of item 5 to Ext.A7 and that it is the western most portion of Ext.A34=Ext.A1 property, the said contention is denied by the defendants. 19. In Ext.A7, Tak 3 of item 5 is described as, . Its four boundaries are described as on the east, on the west, and on the north". The plaint 'A' schedule property herein, as identified in Exts.A4 plan and C3 plan, is situated to the north of " and not to the north of " ". From the plan, it is evident that "Pathekkodan Poyil (Pathirikkodan Poyil)" is situated to the east of "Kozhikkodan Poyil". In Exts.A4 and C3 plans the Commissioner has identified that the plaint 'A' schedule property is situated to the north of "Pathekkodan Poyil". In the plaint there is a specific plea that, in Ext.A7 there has occurred mistakes while describing the southern boundary and also the extent. The contention is that, there was omission to include "Kozhikkodan Poyil" as one of the southern boundaries. 20. Here it is necessary to be noted that, in the schedule to the plaint the plaintiff has described the boundaries of plaint 'A' schedule, not as stated in A7 item 4 Tak 3, but has made changes to suite the claim of the plaintiff. 21. 20. Here it is necessary to be noted that, in the schedule to the plaint the plaintiff has described the boundaries of plaint 'A' schedule, not as stated in A7 item 4 Tak 3, but has made changes to suite the claim of the plaintiff. 21. It needs to be borne in mind that, even going by the plaint averments, it is only a portion of item 10 in Ext.A1 that was obtained on lease by the plaintiff's mother, which was renewed under Ext.A7. The southern boundary of item 10 in Ext.A1 reads :- As noticed before, "Kozhikkodan Poyil" is to the west of "Pathirikkodan Poyil" as identified in Exts.A4 and C3 plans. Tak 3 of item No.5 to Ext.A7 mentions only the "Pathirikkodan Poyil" as a southern boundary. It is possible that the property obtained on lease which was renewed under Ext.A7 was the portion of item 10 in Ext.A1 situated just to the east of "Kozhikkodan Poyil". This could be so since, the western boundary of Tak 3 of item 5 to Ext.A7 is described as "Orappankunnu". As noticed earlier, the plaint 'A' schedule is known by the name "Orappankunnu". If Tak 3 of item 5 to Ext.A7 was the western most portion of item 10 in Ext.A1, its western boundary description must have been the same as that of item 10 in Ext.A1. The western boundary of Ext.A1 item 10 is . It is that "Kuzhinjodi" that is identified as "K1" in Ext.C3 and in green shade in Ext.A4. However, in Ext.A7 item No.5 Tak No. 3 the western boundary is not "Kuzhinjodi" but is "Orappankunnu". C3 Commissioner's plan identifies the plaint 'A' schedule property as "Orappankunnu". If that be so, the contention of the plaintiff that the non-mentioning of "Kozhikkodan Poyil" as a southern boundary was an inadvertent omission would not be probable. It is pertinent to note that, though the plaint mentioned about omission in the description of the southern boundary, he had no complaints with regard to the western boundary as mentioned in Ext.A7 item 5 Tak 3. If the Tak 3 item 5 in Ext.A7 was the western most portion of item No.10 in Ext.A1 then, its western boundary must have been "Kuzhinjodi" in tune with the description of the western boundary of item 10 in Ext.A1. However, conspicuously the western boundary of Tak 3 of item 5 in Ext.A7 is "Orappankunnu". If the Tak 3 item 5 in Ext.A7 was the western most portion of item No.10 in Ext.A1 then, its western boundary must have been "Kuzhinjodi" in tune with the description of the western boundary of item 10 in Ext.A1. However, conspicuously the western boundary of Tak 3 of item 5 in Ext.A7 is "Orappankunnu". The western boundary description when considered along with the description of the southern boundary as "Pathekkodan Poyil" leads to the conclusion that the property covered under Tak 3 of item 5 of Ext.A7 is situated towards the east of the plaint 'A' schedule property. At any rate, it could only be held that the plaintiff has failed to establish their title over plaint 'A' schedule property under Ext.A7 document. 22. The trial court has not considered whether the plaintiff has established title over plaint 'A' schedule property under Ext.A7 item 5 Tak 3. It was carried away by the identification of item 10 in Ext.A1 as noticed supra. Further the trial court failed to notice that the boundaries of the plaint 'A' schedule as described in the schedule is different from the boundary description of Ext.A7 item 5 Tak 3 though it is claimed to be included in Tak 3. The finding of the trial court that the plaintiff has established title over plaint 'A' schedule property is thus liable to be set aside. The points are answered accordingly. 23. Having found that the plaintiff has failed to establish title over plaint 'A' schedule property, the plaintiff is not entitled for recovery of the same from the defendants. The decree and judgment of the trial court is thus liable to be interfered with. In the result, this appeal is allowed. The decree and judgment of the trial court is set aside. The suit will stand dismissed.