Research › Search › Judgment

Kerala High Court · body

2023 DIGILAW 1080 (KER)

Nandini Amma v. Krishnan

2023-12-22

ANIL K.NARENDRAN

body2023
JUDGMENT : Anil K. Narendran, J. The appellant filed O.S.No.1 of 1986 before the Munsiff Court, Ponnani, against the defendants seeking a degree for recovery of possession of plaint A schedule property on the strength of her title and a decree for a mandatory injunction directing the defendants to demolish the wall in plaint A schedule property, which forms part of plaint B schedule property. Going by the averments in the plaint, plaint B schedule property belonged to the plaintiff's mother, Devaki Amma. The plaintiff obtained right over the said property by virtue of Ext.A1 registered Will dated 15.10.1979. The property described in plaint C schedule was assigned by Devaki Amma in favour of the 1st defendant. The property belonging to the plaintiff lies on all four sides of the property assigned to the 1st defendant. The 1st and 2nd defendants have constructed a wall in plaint A schedule property. When the husband of the plaintiff enquired about the construction made by the 1st and 2nd defendants, they told him that the said property belonged to them. The defendants have trespassed upon plaint A schedule property and reduced it to their possession. Therefore, the plaintiff is entitled to get a decree for recovery of possession of plaint A schedule property on the strength of her title. She is also entitled to a decree for a mandatory injunction directing the defendants to demolish the wall in plaint A schedule property. 2. Defendants 3 to 8 were subsequently impleaded in the suit. Defendants 1, 4 and 5 to 8 filed written statement and additional written statement, contending that the extent of the property shown in the plaint schedules is not covered. At the time of assignment of the property in favour of the 1st defendant, the property was measured by the person brought by Devaki Amma and the document was prepared on that basis. The 1st defendant is not aware of the measurements of the property. The entire property as per the assignment deed was entrusted to the 1st defendant. Thereafter he assigned a portion of that property to one Chacko. He gifted the remaining property in favour of the 4th defendant, who is his wife. Defendants 5 to 8 are unnecessary parties to the suit. The defendants have not trespassed upon plaint A schedule property. The entire property as per the assignment deed was entrusted to the 1st defendant. Thereafter he assigned a portion of that property to one Chacko. He gifted the remaining property in favour of the 4th defendant, who is his wife. Defendants 5 to 8 are unnecessary parties to the suit. The defendants have not trespassed upon plaint A schedule property. The plaintiff is not entitled to get a decree for recovery of possession of plaint A schedule property. Defendants 2 and 3 filed separate written statements, contending that the property shown in the schedules to the written statement belonged to them and they have not trespassed upon any property belonging to the plaintiff. 3. Before the trial court, PWs 1 to 3 were examined on the side of the plaintiff and Exts.A1 to A7 were marked. On the side of the defendants, DWs 1 to 3 were examined and Exts.B1 to B7 were marked. The report and plan of the Advocate Commissioner, who was examined as PW3, were marked as Exts.C1 to C5. After appreciating the pleadings and evidence on record, the trial court found that the plaint schedule properties are not properly identified and accordingly the suit was dismissed by the judgment and decree dated 28.02.1991. Feeling aggrieved, the plaintiff filed A.S.No.106 of 1991 on the file of the Sub Court, Tirur. The 2nd defendant died during the pendency of the appeal and his legal representatives were impleaded as additional respondents 9 to 21. That appeal ended in dismissal by the judgement and decree dated 13.08.2002, which is under challenge in this Second Appeal filed before this Court, under section 100 of the Code of Civil Procedure, 1908. 4. On 26.03.2003, when this Second Appeal came up for admission, this Court ordered notice to the respondents on the substantial questions of law formulated in the memorandum of the Second Appeal. By the order dated 26.07.2023 in I.A.No.3 of 2015, the applicant therein, who has entered into an agreement for sale dated 23.08.2000 in respect of 33.5 cents of land, which forms part of plaint A schedule property, comprised in Sy.Nos.204/3, 205/2A and 2B of Ezhavathiruthi Village was impleaded as the additional 20th respondent. 5. Heard the learned Senior Counsel for the appellant, the learned Senior Counsel for respondents 1 to 6, the learned counsel for respondents 7 to 19 and also the learned counsel for the additional 20th respondent. 5. Heard the learned Senior Counsel for the appellant, the learned Senior Counsel for respondents 1 to 6, the learned counsel for respondents 7 to 19 and also the learned counsel for the additional 20th respondent. 6. The learned Senior Counsel for the appellant contended that the trial court as well as the first appellate court went wrong in non-suiting the plaintiff only on account of the failure of the Advocate Commissioner appointed by the court to properly measure the properties. When there is difference between the boundaries and the description in the document that has to be resolved by measurement, which should have been ordered to be undertaken by the Advocate Commissioner properly, instead of non-suiting the plaintiff. 7. On the other hand, the learned Senior Counsel for respondents 1 and 3 to 6, the learned counsel for the respondents 7 to 19 and also the learned counsel for the 20th respondent contended that the trial court as well as the first appellate court non-suited the plaintiff on a proper appreciation of the pleadings and evidence on record. The reasoning of the courts below in the impugned judgments are neither perverse nor patently illegal and no substantial question of law arises for consideration in this second appeal. 8. The document marked as Ext.A1 is a registered Will dated 15.10.1979 executed by Devaki Amma, the mother of the plaintiff, bequeathing all her properties in favour of the plaintiff. Devaki Amma acquired the properties by virtue of Ext.A2 deed dated 29.04.1935 executed by Kozhiprath Narayana Menon. As per Ext.A2 document several items of properties were acquired by Devaki Amma. According to the plaintiff, the property described in plaint B schedule belonged to Devaki Amma and after her death, the plaintiff acquired right over that property by virtue of Ext.A1 Will executed by her mother. It is not in serious dispute that the pleadings in the plaint are not sufficient to indicate the identity of plaint B schedule property, with reference to the properties acquired by Devaki Amma vide Ext.A2 deed. 9. Devaki Amma assigned property in favour of the 1st defendant vide Ext.A5 deed dated 15.03.1975. As per Ext.A5 deed, the property lies in 7 thaks'. According to the plaintiff, the 1st defendant is in possession of the property in excess of the property covered by Ext.A5 deed. Such excess property held by the 1st defendant belongs to the plaintiff. 9. Devaki Amma assigned property in favour of the 1st defendant vide Ext.A5 deed dated 15.03.1975. As per Ext.A5 deed, the property lies in 7 thaks'. According to the plaintiff, the 1st defendant is in possession of the property in excess of the property covered by Ext.A5 deed. Such excess property held by the 1st defendant belongs to the plaintiff. As noticed in the impugned judgment, the 1st defendant has no case that he had acquired the property from any person other than Devaki Amma. There is no plea in the written statement filed by the 1st defendant that he is in possession of any property obtained otherwise than by virtue of Ext.A5 deed. When examined as DW1, the 1st defendant deposed that he was satisfied with the measurements of the property shown in Ext.A5 deed, at the time of execution of that document. Therefore, in the impugned judgment, it was found that excess property, if any, in the possession of the 1st defendant or his assignees, belongs to the plaintiff. 10. Regarding the identification of excess property, if any, in the possession of the 1st defendant or his assignees, with reference to Ext.A5 deed, the first plan and report submitted by the Advocate Commissioner after inspection of the plaint schedule properties were marked as Exts.C1 and C2. In Ext.C1 plan, the property trespassed upon by the defendants is shown within red lines. However, the measurements of the property shown within red lines, alleged to have been trespassed upon by the 1st defendant, cannot be gathered from Ext.C1 plan. Further, the measurements shown in Ext.C1 plan do not tally with the measurements of all the 'thaks' shown in the schedule of Ext.A5 document. 11. Exts.C3 and C4 are the second plan and report submitted by the Advocate Commissioner after the measurement of the property with the assistance of the surveyor. As evident from Ext.C4 report, Ext.C3 plan was prepared merely based on the possession of the properties by the parties. Ext.C3 plan does not reveal any excess property in the possession of the defendants, as alleged by the plaintiff. 12. Exts.C1 and C2 or Exts.C3 and C4 reports and plans submitted by the Advocate Commissioner do not enable identification of the property with reference to Ext.A5 document, in order to find out the excess property, if any, in the possession of the defendants. 12. Exts.C1 and C2 or Exts.C3 and C4 reports and plans submitted by the Advocate Commissioner do not enable identification of the property with reference to Ext.A5 document, in order to find out the excess property, if any, in the possession of the defendants. The identity of plaint A schedule property could not be proved by the plaintiff, in the absence of which, it cannot be found that the plaintiff has title to that property. When the plaintiff failed to establish the identity of plaint A schedule property, she is not entitled to get a decree for recovery of possession of that property or even a decree of mandatory injunction directing the defendants to demolish the wall constructed by them. 13. Before the first appellate court, the learned counsel for the appellant/plaintiff requested that the suit be remanded to the trial court to give the plaintiff an opportunity to take steps for identification of the property with reference to documents of title of the parties. The lower appellate court rightly rejected the said request, since the plaintiff did not take any steps before the trial court to remit or set aside Exts.C1 and C2 and Exts.C3 and C4 plans and reports, for the purpose of identification of the properties with reference to title deeds. Though the plaintiff had filed an application before the trial court to remit the first report of the Advocate Commissioner, that application was only for the purpose of identification of the properties with reference to survey numbers. The plaintiff failed to submit any objections to Exts.C3 and C4 final plan and report filed by the Advocate Commissioner. Therefore, the request made by the appellant/plaintiff for a remand of the suit, which is of the year 1985, to the trial court cannot be allowed. 14. Exts.C1 and C2 plan and report submitted by the Advocate Commissioner are dated 28.07.1987. Exts.C3 and C4 plan and report of the Advocate Commissioner are dated 17.09.1990. Till the disposal of O.S.No.1 of 1986 by the judgment dated 28.02.1991, no steps were taken by the plaintiff for correct identification of plaint schedule properties or for remitting the report of the Advocate Commissioner. The trial court noticed that in the objections filed by the plaintiff to the report of the Advocate Commissioner any shortfall in that report regarding the identity of the property has been pointed out. The trial court noticed that in the objections filed by the plaintiff to the report of the Advocate Commissioner any shortfall in that report regarding the identity of the property has been pointed out. As noticed by the trial court in the impugned judgment, unless C schedule property is correctly identified and plotted out, no decree as prayed for can be granted. 15. The power of attorney holder of the plaintiff, who was examined as PW1, pleaded ignorance of every material fact and his wife, the plaintiff, has not chosen to mount the box. It is not in dispute that the defendants have been in possession of the disputed property since 1975. Even Devaki Amma has not objected to the defendants' occupation. When the excess property alleged to be in the possession of the 1st defendant and his assignees could not be identified with reference to Ext.A5 document, the trial court and the first appellate court rightly declined relief to the plaintiff. The plaintiff who failed to take any steps before the trial court to remit or set aside Exts.C1 and C2 and Exts.C3 and C4 plans and reports submitted by the Advocate Commissioner or even to file a proper objection to those reports and plans cannot contend that the trial court as well as the first appellate court committed a grave error in non-suiting him on account of the failure of the Advocate Commissioner to properly measure the properties. As already noticed hereinbefore, the plaintiff has not chosen to mount the box. PW1, the husband of the plaintiff, who was her power of attorney holder, pleaded ignorance of every material fact for seeking a decree for recovery of possession of plaint A schedule property on the strength of title and decree for mandatory injunction directing the defendants to demolish the wall in plaint A schedule property, which forms part of plaint B schedule property. 16. In the above circumstances, no interference is warranted in the impugned judgment and decree of the trial court and the first appellate court, in exercise of the appellate jurisdiction of this Court under section 100 of the Code of Civil Procedure, 1908. No substantial question of law as stated in the memorandum of second appeal arises for consideration in this matter. The second appeal fails and the same is accordingly dismissed.