Sreedevi et al. v. Sakunthala and V.R. Sasikumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 4[TH] DAY OF AUGUST 2022 / 13TH SRAVANA, 1944** **RSA NO. 404 OF 2014** **AGAINST THE JUDGMENT AND DECREE DATED 30.11.2013 IN A.S. 25/2007 OF SUB COURT, CHERTHALA, WHICH IS ONE CHALLENGING THE JUDGMENT AND DECREE DATED 12.04.2006 IN OS 1091/1997 OF PRINCIPAL MUNSIFF** **COURT, CHERTHALA.** ## **APPELLANTS/RESPONDENTS/PLAINTIFFS:** - **1 SREEDEVI,PERINGARAYIL, PALLATHURUTHY MURI, KAINAKARY NORTH, KUTTANAD.** - **2 SUMANGALA, D/O.NARAYANI, KIZHAKKETHURUTHIL, T.V.PURAM, VAIKOM. (DIED ADDL.APPELLANTS 8 AND 9 IMPLEADED)** - **3 ROY, S/O.RAMAN, KIZHAKKETHURUTHIL, T.V.PURAM, VAIKOM.** - **4 VAIJAYANTHI, ARUN NIVAS, KALATHIL, ASRAMAM WARD, AVALOOKUNNU P.O., ALAPPUZHA.** - **5 SELVAKUMARI, PERINGARA, PALLATHURUTHY MURI, KAINAKARY NORTH, KUTTANAD, ALAPPUZHA.** - **6 AMBIKA, KARUVALLIL, MOOLEDAM, KOTTAYAM.** - **7 SHEELA, MADATHIPARAMBIL, PATHIMATTOM, AYMANAM P.O., KOTTAYAM.** - **8 R.RAO, PRANAVAM HOUSE, T.V.PURAM, VALAKOM, KOTTAYAM-686 606. (THE LEGAL HEIRS OF DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 8 AND 9 AS PER THE ORDER DATED 22/06/2018 IN I.A.NO.1709/2018.** - **9 ANITHA K.R., CHELLASSERIL HOUSE, THALAYOLAPARAMBU, KOTTAYAM-686 606.** - **BY ADV SRI.RAJEEV V.KURUP** ## **RESPONDENTS/APPELLANTS/DEFENDANTS:** - **1 SAKUNTHALA, D/O.BHANUMATHY, THOMMAN VELIYIL, THANNERMUKKAM P.O, CHARAMANGALAM MURI,ALAPPUZHA-688587.** - **2 V.R.SASIKUMAR, S/O.RAMAN, THOMMAN VELIYIL, THANNERMUKKAM P.O., CHARAMANGALAM MURI, ALAPPUZHA-688587.** - **BY ADVS. R.RAMESH, R.UMASANKAR** ## **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** **27.07.2022, THE COURT ON 04.08.2022 DELIVERED THE FOLLOWING:** R.S.A. No. 404 of 2014 **2** ## **JUDGMENT** This appeal has been filed against the judgment in A.S.No.25/2007 on the file of Sub Court, Cherthala which was disposed by a common judgment with A.S.No.26/2007. A.S.No.25/2007 arise out of judgment in O.S.No.1091/1997 which was commonly tried along with O.S.No.821/1997 by Munsiff Court, Cherthala. 2. Plaint item Nos.1 and 2 properties originally belonged to Ittikandon Kesavan, who gifted the same to his wife Narayani. Later, Narayani executed settlement deed No.395/1988 by which 22 Cents each out of 87 Cents was alloted to her three daughters, Bhanumathi, the mother of the 1[st] plaintiff, Sumangala and Soudamini. Plaint schedule item No.1 property belongs to 1[st] plaintiff, who obtained the same as per settlement deed No.4279/1997 executed by her mother Banumathi and she is in absolute possession and enjoyment of item No.1 property from the R.S.A. No. 404 of 2014 **3** date of execution of the settlement deed. Plaint schedule item No.2 property belongs to 2[nd] plaintiff who obtained the same by virtue of the settlement deed No.395/1998 referred above executed by the mother, who obtained the same from her mother Narayani and she is in absolute possession of the same and enjoyment of the property. Defendants have no manner of right over the plaint schedule properties. 4[th] plaintiff is the son of the 2[nd] plaintiff, who is conducting agricultural operations in item No.1 and 2 properties. At the time of executing settlement deed No.395/1998, Narayani reserved her life interest in the property and the possession was given to the daughters on the very date of execution of the deed and deed has come into effect. Though partition was also sought with respect to plaint item No.3 almirah, that was found against and it was not further challenged by the plaintiffs. It is also alleged that though properties described as 87 Cents, actually there is only an extent of 77 Cents, as per village records, it comes to an extent of 76 Cents. As per the settlement deed of 1988, A, B, and C schedule properties were alloted to the share of 3[rd] plaintiff, 2[nd] plaintiff and Soundamini, R.S.A. No. 404 of 2014 **4** sister of plaintiffs 2 and 3 who expired on 26.04.1997. The remaining 11 Cents was sold by Narayani to one Beena during her life time. It is also alleged that the mother Narayani was taking the yield from the entire property till her death, as per stipulations in the deed. After her death plaintiffs 2 and 3 were taking the yield and presently plaintiffs 1 and 2 are taking yield from the plaint item No.1 and 2 properties. 3. Defendants, who were residing with Soudamini, filed O.S.No.821/1997 before the Munsiff's court, Cherthala alleging that the entire properties including plaint item No.1 and 2 are in their possession and the settlement deed of 1988 has not come into effect pertaining to item No.1 and 2 and hence, they sought for declaration of their possessory right over the entire properties. Since they are raising false claim over plaint item Nos.1 and 2 properties, plaintiffs filed suit for the declaration of their right title and possession over item No.1 and 2 properties. 4. Defendants 1 and 2 filed written statement contending that R.S.A. No. 404 of 2014 **5** plaintiffs 1 and 2 have no right over plaint item Nos.1 and 2 properties and they are not in possession of the same and the properties are in the possession of the defendants. They are carrying out agricultural operations in the plaint schedule properties. Out of 87 Cents, 66 Cents were gifted to daughters by Narayani and remaining 21 Cents was stipulated to be devolved upon Soudamini. Out of which, she sold 11 Cents to a stranger. Though properties were separately allotted to 2[nd] and 3[rd] plaintiffs as per the gift deed, they never took possession of their respective shares nor mutation was effected during the life time of Narayani. Hence, the gift deed has not come into effect with respect to plaint schedule item 1 and 2 properties. 5. 1[st] defendant and Soundamini were residing along with Narayani in the house situated in the total 87 Cents of land. It is contended that 1[st] defendant is in possession of total 77 Cents of property. It is also contended that on 13.10.1993, Soudamini executed a registered Will deed, as per which, 22 Cents of property R.S.A. No. 404 of 2014 **6** obtained as per settlement deed of 1988 and the property remaining in the name of Narayani after her death, as item No.4 devolved upon 1[st] defendant. So, 1[st] defendant is in a possession of the above said property along with 76 Cents. Plaintiffs destroyed improvements in the property having an extent of 76 Cents and hence, they filed O.S.No.821/1997 and they never tried to destroy the improvements in the plaint schedule property. So plaintiffs is not entitled to any relief as sought for. The learned Munsiff jointly tried O.S.No.1091/1997 along with O.S.No.821/1997 taking O.S.No.1091/1997 as the leading case. 6. Ext.A1 to A8(a) marked from the side of plaintiff. Dw1 to Dw11 examined and Exts. B1 to B10 marked from the side of defendants. Exts.C1 to C2(b) and Exts.X1 to X7 were also marked. 7. On evaluating the facts and circumstances and evidence adduced, the learned Munsiff dismissed O.S.No.821/1997 and decreed O.S.No.1091/1997 in part, declaring the plaintiff's right title and possession over the plaint schedule item No.1 and 2, specifically R.S.A. No. 404 of 2014 **7** noted by the Commissioner in Exts.C2(b) report and defendants are restrained by a permanent prohibitory injunction from trespassing into plaint schedule item Nos.1 and 2 property or cutting trees standing therein or in any way interfering with the peaceful enjoyment possession and taking yield from the plaint item No.1 and 2 properties. 8. Aggrieved by the judgment and decree passed by the learned Munsiff, the defendants in O.S.No.1091/1997 filed A.S.No.25/2007 and A.S.No.26/2007 against the dismissal of O.S.No.821/1997. The learned Sub Judge, Cherthala heard both appeals together and again dismissed A.S.No.26/2007 confirming the dismissal of O.S.No.821/1997 by the learned Munsiff. But allowed A.S.No.25/2007 and judgment and decree passed by the learned Munsiff was reversed and in O.S.No.1091/1997 was dismissed. 9. Aggrieved by the same, the plaintiffs in O.S.No.1091/1997 approached this Court in appeal in this R.S.A. This Court admitted the R.S.A on the substantial question of law formulated in the appeal R.S.A. No. 404 of 2014 **8** ## memorandum which reads thus; _A) Had not the 1[st] appellate court erred in accepting an interim Report by ignoring a proper report and plan relied on by the trial court to decree the suit ? Was it legal and proper to accept an interim report to non suit the plaintiffs ?_ _B) Did the 1[st] appellate court misconstrue the evidence on record to non suit the plaintiffs when the identity of the property was never in dispute ?_ _C) Is not the 1[st] appellate court bound to remand the case to get a proper report and plan if it is of the opinion that the survey plans and report on record are not reliable rather than to non-suit the plaintiff saying that the reports are not dependable ?_ 10. The learned counsel for the appellants would vehemently contend that the judgment and decree passed by the 1[st] appellate court is erroneous in view of the fact that the suit for injunction filed by the defendants as O.S.No.821/1997 was dismissed, finding that they have no possession over plaint schedule item No.1 and 2 properties. But contrary to that finding, by misconstruing the evidence and commissioner's report, the 1[st] appellate court dismissed R.S.A. No. 404 of 2014 **9** the suit filed by the appellants. 11. The learned counsel for the respondents/defendants on the other hand would contend that the 1[st] appellate court has correctly evaluated the facts and circumstances and there is no oral evidence adduced by the plaintiffs and hence there is no reason whatsoever to interfere with the judgment and decree passed by the 1[st] appellate court. 12. Originally the plaint schedule property belonged to the father Ittikandon Kesavan, who gifted the property to his wife as per Ext.A6 gift deed. She gifted 22 Cents each to her daughters and at the time of argument, the learned counsel for the appellants was also very specific that their claim is limited to plaint item No.1 and 2 properties which is 22 Cents each, total 44 Cents. Ext.A2 settlement deed executed by Narayani would prove that the plaint schedule item No.1 and 2 has been set apart to plaintiffs 2 and 3 by Narayani and out of which the share of 3[rd] plaintiff was subsequently gifted to 1[st] plaintiff as per Ext.A1 settlement deed. In Ext.A2 settlement deed R.S.A. No. 404 of 2014 **10** executed by Narayani, it has been specifically stated that plaintiff Nos.2 and 3 have already been given away in marriage and they are residing in their matrimonial homes and the 3[rd] party Soundamini is remaining as a spinster and accordingly, she is set apart 21 Cents out of total 87 Cents to her well being and the balance 66 Cents is divided equally as A, B and C. A schedule was alloted to Banumathi, B schedule to Sumangala and C schedule to Soundamini. There is a specific direction further to take possession from the date of execution of the deed and enjoyment of the property and it is further clarified that the right of alienation would be obtained only after her death and she would continue to reside in the house situated in the C schedule and she would take the income from the entire property during her life time. Nobody has right to question the same. It is also stipulated that the 21 Cents set apart to her share if remains after her life time it will be devolved upon 3[rd] party Soudamani and nobody else and others will not have any right over the same. The property is also described as balance 66 Cents leaving 21 Cents set apart on the south eastern portion and northern 44 Cents lying east-west. The R.S.A. No. 404 of 2014 **11** western portion to 3[rd] plaintiff and eastern portion to 2[nd] plaintiff and Soudamini was given southern 22 Cents leaving 21 Cents set apart to Narayani on the south-eastern portion. 13. Ext.B2 is the settlement deed in original executed by Narayani in favour of her daughters. On the same day, Narayani sold 11 Cents to Beena by virtue of sale deed, the copy of which is marked as Ext.B3. According to plaintiffs, after the execution of Ext.B2 and Ext.B3, there was no property left with Narayani. Though total extent as per Ext.B2 is shown as 87 Cents, there was only 77 Cents of property and as per the village records it comes to 76 Cents. Ext.B10 tax receipt dated 19.10.1993 issued in favour of Narayani with respect to the remaining property held by her would show the extent as 76 Cents. It is of the year 1993 after the sale of property to Beena in 1988. But the learned Munsiff has not entered into a definite findings with respect to the balance property held by Narayani after Exts.B2 and B3 for the reason that the plaintiff is concerned only with item No.1 and 2 properties extending to 44 R.S.A. No. 404 of 2014 **12** Cents. Narayani died in the year 1992. Though defendants contended that Ext.B2 has not come into effect and they were in possession and enjoyment of the entire property, the suit filed by the defendants for declaration of possession and consequential injunction as O.S.No.821/1997 has been dismissed concurrently by the two courts. That has become final also. So no further discussion with regard to the plaintiff's rights and possession of plaint item Nos.1 and 2 actually remains for consideration. The defendants have no claim of right by adverse possession also. So, plaintiff's rights over plaint item Nos.1 and 2 have been established. 14. So the only question is with regard to the identity of the properties. The learned counsel for the appellant bring to my attention to the commission report in O.S.No.821/1997, the suit filed at the instance of the defendants. Item Nos.1 and 2 in that suit is plaint item No.1 and 2 in the present case. Total plaint schedule property is 76 Cents. Item No.3 is the property allotted to Soudamini. Item No.4 is the property set apart to Narayani. R.S.A. No. 404 of 2014 **13** 15. Commission report in O.S.No.821/1997 would indicate that there were boundary marks separating plaint item No.1. It has been reported that there was boundary fence separating plaint item Nos.1 and 3 properties and somebody has demolished the same. Commissioner also noted that there was a fence separating plaint item Nos.1 and 2 properties and that was also seen demolished. Due to the demolition of boundaries, the plaint item Nos.1, 2 and 3 are lying together. Commissioner further noted that there was cultivation in plaint item Nos.1 and 2 and hence, there was no ground growth in item Nos.1 and 2 and item No.3 was filled with natural growth. 16. Further plaintiffs produced basic tax receipts proving payment of tax by the plaintiffs with respect to plaint item No.1 as per Exts.A3 and A4 dated 23.10.1996 and 03.09.1997 respectively in the name of 3[rd] plaintiff. Ext.A5 is the basic tax receipt with respect to item No.2 property issued in the name of 2[nd] plaintiff dated 03.09.1997. Mutation seen to have been effected after the death of R.S.A. No. 404 of 2014 **14** Narayani. Defendants also effected mutation only in the year 1997. Hence as rightly found by the learned Munsiff all the parties in Ext.B2 had effected mutation after the death of Narayani. So, the learned Munsiff rightly found that plaintiffs proved their right and possession over plaint item Nos.1 and 2 properties. 17. It is true that in the operative portion of the judgment, the learned Munsiff while declaring the right, title and possession of the plaintiffs over plaint schedule item Nos.1 and 2 referred Ext.C2(b). But Ext.C2 report dated 16.02.1998 and sketch attached is a rough sketch prepared by the commissioner. Exts. C1(a) and C1(b) plans are marked through Dw2, the surveyor (Rtd. Survey Asst. Director) and Dw5 is the Commissioner who prepared Exts.C1 report. Dw5 deposed that properties were identified based on old survey plan and re-survey plan and both properties were the same. During cross examination, it was brought out that the area of property as per Exts.C1(a) and C1(b) is the same. So Ext.C1(b) sketch is seems to be more acceptable since property set apart to the road has also been R.S.A. No. 404 of 2014 **15** clearly shown in Ext.C1(b) sketch. 11 Cents sold to third party is also shown as plot 3 in Ext.C1(b). plaint schedule item Nos.1 and 2 is also clearly demarcated. 18. The learned counsel for the appellants/plaintiffs would contend that re-survey has become final and hence, acceptance of the plan based on title deeds and old survey would create further issues. But it has come out that as per Ext.C1(a) and Ext.C1(b), the area of item No.1 and 2 is 22 Cents each. So also re-survey records will not confer any title to the parties. (See _**Kannan v. Kannan [1964 KLT 228: 1964 KHC 67; Ibrahim and Others v. Seythumuhammed and Others [2013 (4) KLT 435: 2013 4 KHC 241**_ ). Hence, Ext.C1(b) sketch is hereby accepted and plaintiffs rights and possession over plaint item Nos.1 and 2 based on Ext.C1(b) sketch is hereby declared. Defendants had filed O.S.No.821/1997 claiming possessionary right over the entire property covered by Ext.B2. It has been dismissed concurrently by both courts. So the apprehension of the plaintiffs stands proved by the filing of O.S.No.821/1997 by the defendants. R.S.A. No. 404 of 2014 **16** 19. Hence, defendants are permanently restrained from trespassing into plaint item Nos.1 and 2 properties as demarcated in Ext.C1(b) sketch and committing any waste therein and causing any interference in the peaceful enjoyment of plaint item Nos.1 and 2 by the plaintiffs. In the result, appeal allowed and the judgment and decree passed by the first appellate court in A.S.No.25/2007 is set aside. In the facts and circumstances, considering the relationship between the parties, there is no order as to cost. Sd/- **M.R.ANITHA, JUDGE** rps/