MUJEEB RAHMAN Vs. V M AHAMMADKHAN

JUDGEMENT

(1.) FIRST defendant in O.S.593 of 2005 on the file of FIRST Additional Munsiff Court, Neyyattinkara is challenging the decree for declaration of title to the plaint B schedule property and recovery of possession of D schedule property concurrently granted by the courts below, in this appeal. FIRST plaintiff and additional third plaintiff are the respondents. Plaintiffs instituted the suit for injunction which was subsequently converted to one for declaration of title and recovery of possession. Item No.1 of Plaint A schedule property is 15 cents alloted as item No.2 of A schedule of Ext.A1 partition to the first plaintiff and item No.2 of plaint A schedule property is 15 cents alloted as item No.4 of B schedule of Ext.A1. Plaint B schedule property is the remaining property of plaint A schedule properties, excluding three cents alienated and plaint C schedule property is a strip of land having an extent of ten cents which is part of item No.2 of plaint A schedule property having an extent of 10 cents being its southern portion and plaint D schedule property is a portion of plaint C schedule property having an extent of 9.809 cents, allegedly trespassed and reduced into possession by the appellant. Plaint schedule property admittedly originally belonged to Late Maitheen Pillai. On his death, the legal heirs divided the property under Ext.A1 partition deed. Second defendant Kunsan Beevi, who is entitled to a share did not execute Ext.A1. Therefore F schedule therein was alloted to her share. As she was not a signatory, it was stated in Ext.A1 that it is a gift and Ext.A3 settlement deed was executed as a gift in respect of F schedule therein. The plaintiffs would contend that they have title to the plaint B schedule property being the remaining property excluding 3 cents of plaint A schedule properties and plaint C and D schedule properties are part of the plaint B schedule property and defendants including the appellant have no manner of right or title to that property. As plaint D schedule property was in the unlawful possession of the appellant, plaintiffs sought a decree for recovery of possession of plaint D schedule property. The appellant resisted the suit contending that the property which was in possession of Kunsan Beevi was not the F schedule shown in Ext.A1 partition deed and Kunsan Beevi was in possession of 10 cents, bounded by well defined boundaries on all sides and the property in possession of Kunsan Beevi was the one shown in Ext.B1, and it was assigned in favour of appellant on 29.6.2005 by Ext.B2 sale deed 1481/2005 and therefore appellant has title to the property and respondents are not entitled to the decree.

(2.) LEARNED Munsiff on the evidence found that it was F schedule which was alloted to second defendant the assignor of the appellant and the property which could be claimed by the appellant is only F schedule to Ext.A1 and plaint A schedule properties were alloted to the share of plaintiffs 1 and 2 under Ext.A1 and therefore they have title to the property. LEARNED Munsiff also found that plaint C and D schedule properties are part of plaint B schedule property alloted to respondents under Ext.A1 partition deed excluding the alienated three cents and granted a decree for declaration of title of the plaintiffs to plaint B schedule property. Decree for recovery of possession of plaint D schedule property from the appellant was also granted. A decree for recovery of possession of plaint D schedule property viz plot BCEGR as marked by the Commissioner in Ext.C2(a) plan was also granted. Appellant challenged the decree and judgment before Sub Court, Neyyattinkara in A.S.111 of 2010. LEARNED Sub Judge, on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal.