GOPALANGUTTY NAIR Vs. KUNHIRAMA THARAKAN

JUDGEMENT

(1.) Leave granted.

(2.) This appeal filed by the plaintiff is directed against the judgment of the High Court of Kerala in second appeal No. 601/89 in which the High Court set aside the decisions of the first appellate Court and disposed of the suit granting portions of the suit property to both the parties with certain other directions. The operating portion of the judgment reads as follows:

(3.) The controversy raised in the case relates to a bund referred to as 'thadaya varamba' or 'coconut varamba' or 'thengu varamba' situated in survey No. 183/4 which is described in Schedule B of the plaint. On the eastern side of the bund lies the land of the plaintiffs and on the western side lies the land of the contesting defendant. The plaintiffs went to Court with the cause, inter alia, that the bund (varamba) on survey No. 183/4 is a part of their property and they have exclusive title and possession over the same. They alleged that the first defendant illegally trespassed when a portion of the bund (varamba). The plaintiffs prayed for declaration of their title to the property and recovery of possession of the portion allegedly trespassed upon by the first defendant. The further claim of the plaintiffs was that the bund (varamba) along with other land lying on its eastern side was allotted to their predecessor in interest in the final decree in partition suit No. 44/1943. Since then their predecessor in interest and the plaintiffs themselves had been in exclusive enjoyment of the properties allotted in their favour in the decree including the properties in Schedule B of the plaint. The vendor of the first defendant, Sankaranarayanan Nair, having trespassed on portion of the bund the plaintiffs had filed O.S. No. 682 of 1962. During the pendency of the said suit a compromise was entered into between the parties and Sankara-narayanan Nair accepted the position that the bund (varamba) on survey No. 183/4 belonged to the plaintiff and he vacated the portion encroached by him. In view of settlement of the dispute between the parties the suit was allowed to be dismissed. Subsequently, Sankaranarayanan Nair, executed a sale deed on 25-3-1982 in favour of the first defendant alienating certain properties including survey No. 183/4, though he had no interest therein. Thereafter the first defendant trespassed upon a portion of the bund.