Judgment · High Court · 2024

FIROZ AGED 45 YEARS SON OF HAMEED PANOLAN, PANOLAN HOUSE, POOLAKKAL, PUNNAPPALA (P.O), PUNNAPPALA AMSOM DESOM, NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 328. RIYAS AGED 41 YEARS SON OF HAMEED PANOLAN, PANOLAN HOUSE, POOLAKKAL, PUNNAPPALA (P.O), PUNNAPPALA AMSOM DESOM, NILAMBUR TALUK, MALAPURAM DISTRICT, PIN- RSA NO. 810 OF 2022 3 13 14 679 328. SALEENA AGED 38 YEARS DAUGHTER OF HAMEED PANOLAN, WIFE OF MUJEEB POOLADAN, PANOLAN HOUSE, POOLAKKAL, PUNNAPPALA (P.O), PUNNAPPALA AMSOM DESOM, NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 328. ALIKKAPARAMBIL KADEEJA, AGED 54 YEARS WIFE OF PANOLAN ABDUL AZIZ, PORUR AMSOM DESOM NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 339. BY ADV R.RAJESH KORMATH RESPONDENTS/APPELLANTS, RESPONDENTS 14, 15, 21 TO 25- PLAINTIFFS AND SINCE IMPLEADED RESPONDENTS BEFORE THE FIRST APPELLATE COURT: 1 2 3 PARAMBUR MARIYAKUTTY AGED 74 YEARS DAUGHTER OF UNNEEN @ VALIYA KUNHIPPU, WIFE OF KOTTAMMAL THANDUPARAKKAL MOSSAKUTTY HAJI, PORUR AMSOM, POOTHRAKKOVE DESOM, PORUR (P.O.), NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 339.

K.T. SABEENA BABY AGED 50 YEARS DAUGHTER OF KOTTAMMAL THANDUPARAKKAL MOOSAKUTTY HAJI, PALLIKKARA HOUSE, THIRURANGADI AMSOM, THRIKKULAM DESOM, CHEMMAD (P.O.), THIRURANGADI TALUK, MALAPURAM DISTRICT, PIN-676 306. K.T. SAHEER BABU AGED 48 YEARS SON OF KOTTAMMAL THANDUPARAKKAL MOSSAKUTTY RSA NO. 810 OF 2022 4 4 5 6 7 8 9 HAJI, PORUR AMSOM, POOTHRAKKOVE DESOM, PORUR (P.O.), NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 339. K.T. FATHIMA SHIBA AGED 43 YEARS WIFE OF M.T. MUHAMMED RASHAL, RISHAS, NADAKKAVU, TANUR, TIRUR TALUK, MALAPPURAM DISTRICT, PIN-676 302. SALEEM AGED 53 YEARS SON OF HAMEED PANOLAN, PANOLAN HOUSE, POOLAKKAL, PUNNAPPALA (P.O.), PUNNAPPALA AMSOM DESOM, NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 328. SHAMEER AGED 51 YEARS SON OF HAMEED PANOLAN, PANOLAN HOUSE, POOLAKKAL, PUNNAPPALA (P.O.), PUNNAPPALA AMSOM DESOM, NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 328. MANSOOR AGED 30 YEARS SON OF PANOLAN ABDUL AZIZ, PORUR AMSOM DESOM, NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 339.

ANSABITH AGED 20 YEARS SON OF SALAM, PORUR AMSOM DESOM, NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 339. RIMI (MINOR) AGED 10 YEARS REPRESENTED BY HER MOTHER SHAHINA, WIFE OF PANOLAN SALAM, PORUR AMSOM DESOM, NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 339. RSA NO. 810 OF 2022 5 10 11 AMRA (MINOR) AGED 5 YEARS REPRESENTED BY HER MOTHER SHAHINA, WIFE OF PANOLAN SALAM, PORUR AMSOM DESOM, NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 339. SHAHINA AGED 32 YEARS WIFE OF PANOLAN SALAM, PORUR AMSOM DESOM, NILAMBUR TALUK, MALAPURAM DISTRICT, PIN-679 339. R1, R3 AND R4 BY ADV KRISHNAKUMAR M R9, R10 BY VIVEK VENUGOPAL (COURT GUARDIAN/PROBONO LAWYER) THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA NO. 810 OF 2022 6 JUDGMENT Dated this the 11th day of January, 2024 This regular second appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, challenging the judgment and decree dated

30.07.2022 in A.S.No.104/2014 on the files of the Additional District Court-II, Manjeri, arose out of the judgment and decree dated 29.08.2014 in O.S.No.376/2010 on the files of the Sub Court, Manjeri. The appellants herein are defendants 2, 5 to 12 and the respondents are the plaintiffs and the other defendants.

Heard the learned counsel for the appellants, the learned counsel for the respondents and Adv. Vivek Venugopal, the court guardian for minor respondents 9 and 10, as pro bono.

I shall refer the parties in this regular second appeal as 'plaintiffs' and 'defendants' for convenience. RSA NO. 810 OF 2022 7

In this matter, the plaintiffs filed suit for recovery of possession of plaint 'A' schedule property after asserting title over plaint 'B' schedule property, having an extent of 5 cents. According to the plaintiffs, they derived title on the basis of document No.2657/1962 of SRO Wandoor. The prior title deeds are also described in the plaint. According to the plaintiffs, plaint 'A' schedule is at the hands of the defendants and the same is liable to be recovered.

The defendants entered appearance and disputed possession of property belong to the plaintiffs. The defendants also disputed the title of the plaintiffs over the plaint schedule property.

The court below raised necessary issues and tried the case. PW1 examined and Exts.A1 to A12 were marked on the side of the plaintiffs. Exts.C1 and C4 also were marked. No evidence was let in by the defendants.

Ultimately, the trial court dismissed the suit, holding that the plaintiffs ought to have described the RSA NO. 810 OF 2022 8 property so as to identify the same in the plaint and also asked for the relief of boundary fixation.

When the matter was considered by the learned Additional District Judge in A.S.No.104/2014, the decree and judgment of the trial court were reversed and finally, relying on Ext.C4 sketch, recovery of possession of plaint 'A' schedule property was granted.

At the time of admission, my learned predecessor, as per order dated 14.07.2023, raised the following substantial questions of law: “i) Has not the Court below erred in decreeing the suit when the properties in question were not identified with reference to title-deeds? ii) Has not the Court below grossly erred in pronouncing judgment in the appeal without considering and passing orders on I.A.No.149 of 2018, the application filed in the appeal by the appellants (plaintiffs in the suit) to identify plaint A and B schedule properties within the assistance of a surveyor or in the alternative to remit Exhibit -C3-report and Exhibit-C4-plan RSA NO. 810 OF 2022 9 submitted by the commissioner for identification of the properties? iii) Has not the Court below arrived at the finding that the plaintiffs have got title over plaint schedule-properties on the basis of the mere conjectures? iv) Is not the judgment of the Court below vitiated as relevant considerations are discarded and irrelevant considerations are relied upon for the adjudication?

On perusal of the substantial questions of law raised, it requires reformulation as under: Whether the first appellate court erred in granting decree of recovery of possession without properly identifying the plaint 'A' schedule property on the strength of Ext.A1 title deed in continuation of Exts.A8 and A13 title deeds?

While substantiating the contention regarding want of identity of the plaint 'B' schedule property, segregating the plaint 'A' schedule, over which recovery of possession was sought for, it is submitted by the learned RSA NO. 810 OF 2022 10 counsel for defendants 2, 5 to 12 that as per Ext.C3 report and Ext.C4 sketch, nothing is stated as to how the properties were identified. It is submitted further that as per Ext.C4, the properties were seen to have identified on the basis of possession. It is also submitted that the property in plot Nos.1 and 2 together identified as plaint 'B' schedule, lies in 'L' shaped manner as per Ext.C4. Whereas the title deed description in Ext.A1 is 5.5 x 11. He also submitted that in the prior title deed also, the description of the property in measurement is similar to Ext.A1. So the first appellate court went wrong in giving emphasis to Ext.C4 to grant the relief of recovery of possession.

The learned counsel for the plaintiffs vehemently supported the verdicts of the first appellate court and submitted that as per Ext.C4, the property is well identified, though there is a small mistake while describing the same under the footnote. He also submitted that since the property is well identified and there is no substantive dispute raised by RSA NO. 810 OF 2022 11 the defendants in the matter of identity, the first appellate court rightly granted decree and the same does not require any interference.

While adjudicating the question as to whether the plaintiffs succeeded in identifying the plaint 'B' schedule property in tune with the title or description, it is noticed that as per Ext.A1, the property is 5.5 cents with measurement of

5.5 x 11. The immediate prior title deed of Ext.A3 is Ext. A8, where the property is described as having 5.5 feet width on the East-West and 11 feet on the South-North. The prior title deed of Ext.A8 is Ext.A13, wherein also, the property is described in a similar fashion. On perusal of Ext.C4, plaint 'B' schedule property is located in 'L' shaped manner and the report of the Commissioner or the notes given by the Surveyor in Ext.C3 and C4 do not depict what is the mode of measurement. On perusal of I.A.No.1421/11 filed by the plaintiffs to get the surveyor's plan also, the dispute regarding the identity is stated. But the property not specifically asked RSA NO. 810 OF 2022 12 to be located on the basis of the title deed. This is the reason why the trial court dismissed the suit for want of identity. But the first appellate court given emphasis to Ext.C4 to identify plaint 'B' schedule. In this matter, as per I.A.No.760/2014, the defendants sought to remit back Ext.C3 report and Ext.C4 plan so as to identify the property properly. But the learned Munsiff did not pass any detailed order therein and on the date of dismissal of the suit, I.A.760/2014 was also dismissed by one line order: “Heard. Petition dismissed.”

In this matter, the claim raised by the plaintiffs to get recovery of possession, on the strength of title, is a matter requires adjudication by properly identifying the same in accordance with the title deed description as well as old survey and resurvey plans. Since Ext.C4 is found to be one not exactly depict the plaint 'B' schedule property in tune with Exts.A1, A8 and A13, it is necessary to remit back Exts.C3 and C4 to the same Commissioner and surveyor for measuring properly, on the strength of title deed of the RSA NO. 810 OF 2022 13 plaintiffs as well as defendants and for the said purpose, the verdicts under challenge would require interference.

Therefore, the verdicts under challenge stand interfered and the matter remanded back to the trial court for fresh consideration, after remitting Exts.C3 and C4 to the same commissioner and surveyor with direction to measure the plaint schedule property as well as the property of the defendants on the basis of their respective title deeds, old survey plans and re-survey plans and produce exhaustive plans showing its lie so as to consider the relief sought for by the plaintiffs.

Since the trial court dismissed the suit on the ground that no relief of fixation of boundary was sought for, the plaintiffs are at liberty to amend the plaint to incorporate the said relief also, for which the defendants are at liberty to file additional written statement in accordance with law.

The parties are free to file petitions before the trial court with regard to the matters to be noted by the RSA NO. 810 OF 2022 14 Commissioner on remittance of Exts.C3 and C4 to get an exhaustive report and plan to decide the matter in issue.