OUSEPH POULOSE Vs. KUTTAPPAN CHOTHI

JUDGEMENT

(1.) THE legal representatives of the plaintiff in a suit for recovery of possession with mesne profits is before this Court in appeal. The original plaintiff filed the suit claiming recovery of possession of 98 cents of property, on the basis of Ext.A1 settlement deed executed by one Rev. Fr. Thomas, the brother of the original plaintiff, in the year 14.10.1965. The plaintiff contended that earlier, himself, the executor of Ext.A1 and another brother had filed O.S No.433/1973 against the father of the defendants claiming injunction against trespass into the 98 cents of property called 'Karimalathandu Purayidom'. In the said case, the father of the defendants had set up a claim of 'kudikidappu'. He also claimed that he has filed an original application under the Kerala Land Reforms Act, 1963(hereinafter referred to as the KLR Act). However, there is nothing on record as to what happened in the said proceedings under the KLR Act. The defendants too are silent on that aspect

(2.) IN any event, the defendants who are the sons of the defendant in the earlier suit, do not have a case with respect to any purchase certificate having been granted in favour of their father or them. It is also evident from the records of the case, more specifically the commission report, that the father of the defendant, Chothi was alive, since the commissioner has specifically noticed that the plaint schedule properties were pointed out to the commissioner by the said Chothi. One of the items which was the subject matter of the earlier suit O.S.No.433/1973 was the 98 cents of property called 'karimalathandu purayidom', which is shown as Item No.2 in Ext.A4; the decree in the said suit. The defendants father had challenged the same unsuccessfully in First Appeal and second appeal.

(3.) IN appeal, this Court remanded the matter back to the court below for facilitating an application for issuance of commission for the conduct of a measurement with the assistance of the survey authority. The commissioner, who visited the property along with the Taluk Surveyor, identified the property and filed a report with a sketch prepared by the Taluk Surveyor based on the field measurement book. The Taluk Surveyor found that though the survey number was 117, the subdivision 1A/421/139 shown in Ext.A1 was an obvious mistake, especially since the properties in the said subdivision were lying 200 to 250 metre away from the properties claimed by the plaintiff. It was also noticed that the plaintiff or his predecessors-in-interest had no property in the said subdivision. The property called 'karimalathandu purayidom' was, as per the revenue records, said to exist in subdivision 1B of survey No.117 of Kuttamangalam village. The 98 cents of property was identified as pointed out by the plaintiff and Chothi, the father of the defendants. When the said commission report was filed before Court, the plaintiffs sought for an amendment wherein new survey number; rather the correct subdivision was sought to be incorporated. That application was dismissed and the plaintiffs were again before this Court. The amendments were allowed on terms, but, however, leaving open the question of limitation. The court below has specifically noticed that the question of limitation was not argued by the defendants. There is no appeal from that finding also.