INDIRA V. MENON Vs. PADMAVATHY AMMA

JUDGEMENT

(1.) THESE second appeals arise from a common judgment of the Subordinate Judge's Court, Ernakulam in A S. Nos. 43 and 46 of 1986. Bath these appeals were filed by one Balakrishna Menon. He died some time later and hence his daughter Indira V. Menon and son inlaw K. P. V. Menon were impleaded as legal heirs in view of the recital contained in the assignment deed executed by him in favour of them. Deceased Balakrishna Menon was the second defendant in O. S. No. 809 of 1981 filed by his sitter Padmavathy Amma. The rights of the first defendant Kochammini Amma where later assigned to Balakrishna Menon. Thus the main contest in these appeals is between Padmavathy Amma and legal heirs of Balakrishna Menon.

(2.) THE common facts involved in these appeals are narrated hereunder: Balakrishna Menon along with three sisters, Janaki Amma, Ammalu Amma and Kochammini Amma jointly purchased an item of property as per the deed No. 432/1125. That property was later divided among the sharers as per the partition deed No. 420/1966. Balakrishna Menon and his sister Kochammini Amma obtained their share of 35 1/2 cents jointly. In the year 1968 Kochammini Amma executed a conditional sale deed in respect of six cents, a portion of the above joint property in favour A of Padmavathy Amma as per registered deed No. 1786/68 (Ext. A1 in O.S. 809/81) Kochammini Amma having failed to fulfil the conditions, the sale in favour of Padmavathy Amma became absolute. Thereupon Balakrishna Menon executed a registered deed releasing his rights in respect of the above six cents of land assigned to Padmavathy Amma. This six cents of land is the plaint A schedule property in O. S. No 809/81. A portion of this property having an area of about 40 feet in length and 2 1/2 feet in width is the plaint schedule property in the said suit. Later a portion of the joint property belonging to Kochammini Amma and Balakrishna Menon was again sold to one Sarada Amma leaving a balance of 13 cents in the possession of Balakrishna Menon. In October 1981 Kochammini Amma released all her rights over the 13 cents to Balakrishna Menon as per the release deed. Thus Balakrishna Menon became the absolute owner of this 13 cents of land. This is plaint A schedule property in O. S. No. 1039/81. O.S. No. 809/81: In this suit filed by Padmavathy Amma, she prayed for a declaration of title and recovery of possession of plaint B schedule property. She had started construction of a residential building in plaint A schedule property. When construction reached upto the level of sunshade, Kochammini Amma and Balakrishna Menon, defendants in the suit, under the guise of putting up additional construction in the western side of their property encroached into plaint B schedule property. It was under that situation O. S. No 809/81 was filed before the Munsiff's Court, Ernakulam O. S. No 1039/81: Balakrishna Menon who was the second defendant in O. S. No 809/81 filed this suit before the Munsiff's Court, Ernakulam for a permanent prohibitory injunction restraining Padmavathy Amma from completing the construction of the building which she had put up la plaint B schedule property in O.S. 809/81. The plaintiffs case is that the water from the sunshade of the building constructed by Padmavathy Amma falls into his property. It was in that background O. S. No 1039/81 was filed by Balakrishna Menon with the aforesaid prayer. The above two suits were tried together by the learned Munsiff as per order In I. A, No 1241/83 in O.S. No 809/81.

(3.) THE question of law very forcefully argued by Mr. C. Chandrasekharan in both the appeals is one and the same. The question is whether the lower appellate court is justified in law in placing reliance on the second commission report without setting aside the report submitted by the Trial Court. As far as this court is concerned, the law is settled by the reason of the decision of the Division Bench in Swami Premananda Bharathi v. Swami Yogananda Bharath. (1985 KLT 144) where it has been held that the first commission report and proceedings should be set aside and then only the court can proceed to appoint another commissioner. This is the 'wholesome rule of law based on public policy. His Lordship Justice K. S. Paripoornan while speaking on behalf of Bench observed: