DEVAKI Vs. JANAKI, W/O.LATE PALAKKAL BALAKRISHNAN

JUDGEMENT

(1.) PLAINTIFF appeals against the judgment of the learned single Judge dismissing her first appeal against the dismissal of the suit for declaration, recovery of possession and injunction.

(2.) SANKRAN Mestry and Paru Amma had four children; the plaintiff, first defendant, Vasu and Padmavathi. After the demise of Sankaran Mestry, the first defendant filed O.S.67/78 before the Munsiff Court, Kalpetta for partition. A preliminary decree was passed in that suit. Pending A.S.48/81, the first appeal from that preliminary decree, Vasu released his undivided right in favour of the plaintiff herein, as per Ext.A2. Padmavathi released the undivided share in her favour as per Ext.A3. The first defendant also released his undivided share to the plaintiff as per Ext.A1. Thus the plaintiff came to hold the title to the entire property which was the subject matter of O.S.67/78. A.S.48/81 was withdrawn, thereupon.

(3.) THE preliminary decree in O.S.67/78 was passed on 14.8.1980. THE Commissioner's report in that suit is dated 6.4.1982. A.S.48/81 - the first appeal from that preliminary decree was withdrawn only on 25.6.1987. THErefore, after the preliminary decree was passed by the trial court on 14.8.1980, the parties could be taken to have been aware of the fact that the actual extent of property is 12.50 acres. Though, Exts.A2 and A3 by Vasu and Padmavathi were executed in favour of the plaintiff before the said extent of the land being identified by the commissioner, . Ext.A1 by the first defendant was nearly three years after the Commissioner's report in O.S.67/78. It was only thereafter that the first appeal A.S.48/81 was withdrawn on 25.6.1987. Obviously therefore, the first defendant and the plaintiff, at that point of time, cannot be expected to have been ignorant of the fact that the property is not 10 acres, but 12.50 acres. As rightly noted by the learned single Judge in paragraph 5 of the impugned judgment, it was for the first time that the Commissioner reported that the extent is 12.50 ares and the first defendant must have known this fact and the plaintiff also must be attributed with knowledge of this fact because both were parties to that suit. Learned single Judge rightly noticed that it was nearly three years after the Commissioner submitted the report, that the first defendant executed Ext.A1 in 1985, which refers only to 10 acres. This, in our view, is a plausible appreciation of the facts on record, that too, in the process of confirming the judgment issued by the court of first instance in a litigation between siblings. We are of the view that such findings cannot be treated as wrong.