Mohammed Ismail and Mohammed Haneefa v. Ismail Pillai

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 2ND DAY OF JANUARY 2012/12TH POUSHA 1933 RSA.No. 758 of 2004 ( ) ======================= AS.32/2002 of SUB COURT, NEDUMANGAD OS.619/1998 of PRL.MUNSIFF COURT,NEDUMANGAD APPELLANTS/DEFENDANTS. =================================== (*) 1. MOHAMMED ISMAIL, AGED 59 YEARS, THARATTA ROADARIKATHU VEEDU, S.N.PURAM, PANAVOOR VILLAGE (PASSED AWAY ON 5.8.11) 2. MOHAMMED HANEEFA, AGED 44 YEARS, ALAYIL VEEDU, S.N.PURAM, VELLANCHIRA, PANAVOOR VILLAGE. (*)IT IS RECORDED THAT THE 1ST APPELLANT PASSED AWAY ON 5.8.11 AND THAT HIS LRS.' NEED NOT BE IMPLEADED VIDE ORDER DATED 2.1.2012 IN STATEMENT OF FACTS BEARING CF 7206/11. BY ADV.SRI.M.RAMASWAMY PILLAI SRI.V.BAHULEYAN SRI.P.M.JOSEPH RESPONDENT(S)/PLAINTIFF. ======================== ISMAIL PILLAI, AGED 54 YEARS, HAJIM MANZIL, PANAYAMUTTAM, PANAVOOR VILLAGE. BY ADV. SRI.R.S.KALKURA THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.758 of 2004 -------------------------------------Dated this the 2[nd] day of January, 2012.** ## **JUDGMENT** Defendants 1 and 2 in O.S.No.619 of 1998 of the court of learned Principal Munsiff, Nedumangad are aggrieved by the judgment and decree of that court as confirmed by the learned Sub Judge, Nedumangad in A.S.No.32 of 2002. 2. O.S.No.619 of 1998 is a suit filed by the respondent for declaration of title and possession and for prohibitory injunction, originally in respect of 16 cents in survey No.4131/1, described as forming part of 41 cents towards its southern side as per Ext.A1, exchange deed. Respondent claimed title and possession of the said 16 cents as per Ext.A1, exchange deed No.3889 of 1977. Later plaint was amended confining the suit property as 4.10 Ares excluding portion of 16 cents which according to the respondent was taken for construction of road on the eastern side. 3. 1[st] appellant and 3[rd] defendant remained exparte. The 2[nd] appellant/2[nd] defendant filed written statement contending that the suit is barred by res judicata and that plaint schedule descriptions are not correct. He denied title and possession claimed by the respondent over the suit property and claimed that 5 cents belonging to him by virtue of Exts.A6 and B6 is also included in the suit property. According to the 2[nd] appellant, 41 cents in survey **RSA No.758/2004** 2 No.4131/1 originally belonged to Abdul Khader as per assignment deed and after his death, his legal representatives partitioned the said property as per Ext.A6, document No.2374 of 1956. 5 cents was allotted to Musthafa Kunju and on the death of said Musthafa Kunju, the said 5 cents was allotted to the 2[nd] appellant as per Ext.B6. 2[nd] appellant also made a counter claim for fixation of boundary of the said 5 cents and for its recovery of possession. Later, the counter claim was withdrawn with liberty to file a fresh suit. But admittedly no fresh suit was filed by the 2[nd] appellant. Trial court based on the oral and documentary evidence including Exts.C1 and C1(a), report and plan prepared by the Advocate Commissioner granted a decree in favour of respondent. That was confirmed by the learned Sub Judge in appeal. 4. This appeal was admitted on the following substantial questions of law: “(a) Can the respondent claim absolute title on the basis of the assignment based on Ext.A6 when there is ambiguity in Ext.A6, partition deed? (b) Can a sharer be expelled from his right of share solely on the basis of a mistake in the recital in the deed of partition? (c) Is the suit for declaration of title and possession maintainable without a further partition when the partition deed itself is ambiguous? - (d) Can a decree of declaration be passed when **RSA No.758/2004** 3 the plaint schedule property is not located or properly identified? (e) Is not the 2[nd] appellant entitled to his five cents from the entire 41 cents when it is found that the southern five cents given possession to him is not his and the northern five cents happened to be in the possession of some other sharers on the basis of mistake in Ext.A6?” 5. Though the above substantial questions are raised for a decision, in fairness the learned counsel for appellants submits that the only issue arising for decision is whether without proper identification of the suit property as claimed by respondent (substantial question No.(d)) courts below were correct in granting a decree in his favour. 6. It is contended by learned counsel for appellants that Exts.C1 and C1(a) were obtained before plaint schedule was amended and hence cannot be used of. It is contended that even going by Ext.C1 there is no proper identification of the suit property. According to the learned counsel, in a suit on title it is necessary that there is a properly measured plan identifying the property in question. Reliance is placed on the decision in **K.B.Ambujakshy Amma and another v. Gopi and another – 1989 (2) KLJ 705** , (page 706). 7. Learned counsel for respondent contends that Exts.C1 and C1(a) are sufficient to identify the suit property and that at any rate, appellants are not in any way prejudiced by the alleged want of proper identification of suit property since it is evident from the documents and Exts.C1 and C1(a) that 2[nd] appellant **RSA No.758/2004** 4 does not own or possess any property anywhere near the suit property described in the plaint schedule and as identified by the Advocate Commissioner and hence there is no reason why appellants should resist the decree granted by the courts below. It is also contended that 1[st] appellant and 3[rd] defendant have not even filed written statement disputing the plaint claim and that no attempt was made by any of the appellants either to set aside or remit Exts.C1 and C1 (a). In that circumstances it is not necessary for this Court to interfere in the matter so far as the claim made by appellants are concerned. According to the learned counsel, if identity of the suit property is disputed by any other person, it is not beyond the power of executing court to look into that question if found necessary. 8. Normally, it must be said that when a suit is based on title, as held ## in **K.B.Ambujakshy Amma and another v. Gopi and another** (supra) there must be a properly measured plan identifying the property with reference to the relevant documents. But the question is whether that principle should be applied to the facts of this case. 9. Respondent and 2[nd] appellant trace title to Abdul Khader who originally acquired 41 cents as per assignment deed. There were subsequent division of the property and respondent claims to have got the 16 cents as per Ext.A1, exchange deed dated 26.12.1977. In that exchange deed the 16 cents is described as being the southern extremity of 41 cents in survey No.4131/1. Southern boundary of the said 16 cents is described as the school compound. Thus going by Ext.A1, it would appear that the 16 cents originally referred to in **RSA No.758/2004** 5 the plaint schedule forms the southern portion of 41 cents acquired by Abdul Khader as per assignment deed and which was the subject matter of the subsequent partition,exchange as the case may be. 10. So far as the claim made by the 2[nd] appellant is concerned, it is based on Exts.A6 and B6. It is argued by learned counsel for appellants that as per Ext.A6, the 5 cents allotted to the 2[nd] appellant is towards southern portion of the 41 cents. Learned counsel has referred me to the boundary descriptions in Ext.A6 to impress upon the said contention. It is pointed out that the southern boundary of property is shown as the school compound. But, I find myself unable to accept that argument. The reason is that going by Ext.A6 the boundary description given is of the entire 41 cents, the school compound being the southern boundary (of the 41 cents) and, in Ext.A6 it is specifically stated that 5 cents allotted to the 2[nd] appellant is towards the northern portion of the 41 cents. Hence going by Ext.A6, it is clear that the 5 cents over which 2[nd] appellant is laying hands is not towards southern portion of the 41 cents but, it is towards the northern portion. It is only that in Ext.A6 the said 41 cents is stated to be bounded by the school compound on the south. Hence relying on Ext.A6, 2[nd] appellant cannot justifiably contend that the 5 cents he got is towards southern portion of 41 cents. 11. Yet another document 2[nd] appellant has pressed into service is Ext.B6. Item-1 in Ext.B6 is the 5 cents claimed by 2[nd] appellant. There, the said 5 cents is described as bounded by purayidom on all sides. Ext.B6 does not give the indication that the 5 cents is towards the southern portion of 41 cents. I **RSA No.758/2004** 6 must also bear in mind that Ext.B6 follows Ext.A6, referred above. 12. I shall also refer to Exts.C1 and C1(a). True that plaint schedule was amended as per order dated 09.11.2001 and that amendment was carried out on 16.11.2001. But as seen from Ext.C1, the Advocate Commissioner inspected the property on 10.02.2001, ie. before the amendment was carried out. It is seen that plaint schedule was amended to state the extent of suit property as 4.10 Ares (which is less than 16 cents originally stated in the plaint schedule). No attempt was made to get the 4.10 Ares specifically identified by the Advocate Commissioner. Now the question is whether the judgments and decrees of the courts below are to be set aside and the matter remitted to the trial court for fresh decision? 13. In paragraph 9 of Ext.C1, report the Advocate Commissioner states that as per objection preferred by the 2[nd] appellant to the application for commission, the 5 cents comes within the 41 cents comprised in survey No.4131/1 and is shown as CHJK. If that is to be accepted, then the 5 cents must be at the southern portion of the 41 cents (shown by Advocate Commissioner as DEJH), but, it is seen from paragraphs 10 and 11 of Ext.C1, that the Advocate Commissioner has shown the 5 cents (claimed by 2[nd] appellant as per Exts.A6 and B6) in blue shade which is towards the northern portion of 41 cents (DENO). That suits the description of 5 cents in Ext.A6. Therefore, based on what is stated in paragraph 9, 2[nd] appellant cannot justifiably contend that the 5 cents belonging to him is situated towards south of 41 cents or even 16 cents originally stated in the plaint schedule. **RSA No.758/2004** 7 14. In that view of the matter that the 4.10 Ares (which is part of 16 cents identified in Ext.C1(a)) is not specifically identified from out of the red shaded plot in Ext.C1(a) (16 cents - MLJH) does not in any way affect the right or interest of 2[nd] appellant for, going by Exts.C1 and C1(a), in between the blue shaded portion which is identified as property of 2[nd] appellant situated on the northern extremity of 41 cents and the 16 cents, there are properties allegedly in the possession of other persons. If that be so, that the 4.10 Ares is not specifically identified by the Advocate Commissioner does not in any way affect the right or interest of the 2[nd] appellant. In that view of the matter I do not find reason to interfere with the judgments and decrees of courts below at the instance of appellants. It is a different matter if any other person having interest in the suit property objects to the execution of the decree granted by the courts below. 15. Though a contention is raised in the Memorandum of Appeal as to ambiguity in Ext.A6, partition deed which I have extracted above, I do not find any ambiguity in so far as description of the 5 cents claimed by the 2[nd] appellant. 16. In the light of what I have stated above I am to hold that identification of the suit property made by Advocate Commissioner as seen from Exts.C1 and C1(a) does not in any way affect the interest of appellants particularly the 2[nd] appellant whose property is identified as situated towards northern portion of 41 cents. In that view of the matter, merely because the 4.10 Ares is not specifically identified by the Advocate Commissioner in the 16 **RSA No.758/2004** 8 cents which is properly identified, no interference is required with the judgments and decrees of the courts below. The substantial question of law which arose for a decision as aforesaid is answered accordingly. Second Appeal is dismissed without any order as to costs. I.A.No.1307 of 2004 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**