K K AMMUKUTTY AMMA Vs. EDAKALUR MEETHAL KALLIANI

JUDGEMENT

(1.) Plaintiffs in O.S.23/1986 on the file of Munsiff Court, Payyoli are the appellants. Respondents are the defendants. On the death of nineth respondent, respondents 11 to 13 were impleaded as his legal heirs. Appellants instituted the suit for fixation of boundary and for permanent prohibitory injunction. Plaint schedule property is 7.90 acres in Survey No.38/2 of Maniyur Village. First appellant and seventh respondent, who was the first defendant, are the children of Kunhilakshmi Amma. Case of the appellants is that plaint schedule property was allotted to the share of the thavazhi of Kunhilakshmi Amma under Ext.A1 partition deed dated 24.9.1955 as item No.31 and subsequently the said thavazhi with subsequent born children divided the property along with others properties by Ext.A2 partition deed dated 6.3.1964 and as item No.6 of the D schedule therein plaint schedule property was allotted to the share of the appellants and respondents 7 to 10 and they have been in possession and enjoyment of the property and respondents 1 to 6 who were defendants 5 to 10 have no manner of right or possession of the same and they attempted to trespass into the property and therefore boundary of the plaint schedule property is to be fixed and respondents 1 to 6 are to be restrained by a permanent prohibitory injunction from trespassing into the property. Respondents 1 to 6 filed a written statement contending that the property described in the written statement was obtained by Choyi their predecessor under Ext.B1 unregistered kuzhikanam deed from Kunhilakshmi Amma and he executed Ext.B2 marupattom deed in favour of Kunhilakshmi Amma and since then Choyi has been in possession of the property and on his death his right devolved upon respondents 1 to 6. It is also contended that under Ext.B3 assignment deed dated 20.9.1962 (Ext.A8 being its registration copy) Choyi has purchased the property covered by the said sale deed from Narayana Kurup who in turn got the property from Narayanan Nambiar and since then the properties covered under B1 to B3 were in the possession of Choyi and subsequent to the death of Choyi, it is in the possession of respondents 1 to 6 and appellants have no right or possession over the said property. It is also contended that plaint schedule property is not the property claimed by appellants and there is a specific boundary to separate the property of the appellants and the respondents 1 to 6 and the order of Land Tribunal dropping the suo motu proceedings is not binding on respondents 1 to 6 and they are filing an appeal against that order and the suit is barred by limitation, as respondents 1 to 6 have been in possession of the property for more than twenty years and hence the suit is to be dismissed.

(2.) A Commissioner was appointed to identify the properties and the Commissioner submitted Ext.C2 report and C1 plan. When it was remitted back to the Commissioner he submitted Ext.C4 plan and C5 report. Subsequently the report and plan were again remitted to the Commissioner and the Commissioner submitted Exts.C7 report and C6 plan. The husband of the first appellant was examined as PW1 and fifth respondent was examined as DW1. A witness on their behalf was also examined as DW2. Exts.A1 to A9 were marked on the side of appellants and Exts.B1 to B16 on the side of respondents 1 to 6. On the evidence, learned Munsiff found that plaint schedule property is plots C, B and A2 as shown by the Commissioner in Ext.C6 plan and plots A1, A3 and A4 is the property obtained by Choyi under Ext.A8 assignment deed from Narayana Kurup, who in turn had obtained it under Ext.A7. Learned Munsiff also found that Exts.B1 were not proved to be executed by Kunhilakshmi Amma and there is no evidence to prove that there was a lease as claimed by respondents 1 to 6 or that they have been in possession of that property and granted a decree permitting appellants to put up boundary on a e line marked in Ext.C6 plan separating the property of appellants and respondents 1 to 4 finding that the disputed plots B and A2 belong to the appellants along with the undisputed plot C, under Exts.A1 and A2.

(3.) Respondents 1 to 6 challenged that decree and judgment before Sub court, Quilandy in A.S.27/1991. Learned Sub Judge on reappreciation of evidence found that the suit being one for putting up the boundary and for injunction, burden is on the appellants to establish the identity of the property, title and possession of the property. Learned Sub Judge also found that though under Exts.A1 and A2 appellants have title to the property covered thereunder, as side measurements are not given in Exts.A1 and A2, the property cannot be identified and therefore the identification made by Commissioner in Ext.C6 plan cannot be accepted. Learned Sub Judge also found that appellants have failed to establish that plots A2 and B in Ext.C6 plan form part of the property obtained by them under Ext.A1 and A2 partition deeds and as they failed to establish their title as well as possession, they are not entitled to the decree granted by the trial court. Appeal was allowed and the northern boundary of plot C namely c-d line was fixed as the boundary of appellants property as there was no dispute with regard to plot C. Plaintiffs arechallenging the decree and judgment in this appeal.