NANDINI AMMA Vs. KRISHNAN

JUDGEMENT

(1.) The appellant filed O.S.No.1 of 1986 before the Munsiff Court, Ponnani, against the defendants seeking a degree for recovery of possession of plaint A schedule property on the strength of her title and a decree for a mandatory injunction directing the defendants to demolish the wall in plaint A schedule property, which forms part of plaint B schedule property. Going by the averments in the plaint, plaint B schedule property belonged to the plaintiff's mother, Devaki Amma. The plaintiff obtained right over the said property by virtue of Ext.A1 registered Will dtd. 15/10/1979. The property described in plaint C schedule was assigned by Devaki Amma in favour of the 1st defendant. The property belonging to the plaintiff lies on all four sides of the property assigned to the 1st defendant. The 1st and 2nd defendants have constructed a wall in plaint A schedule property. When the husband of the plaintiff enquired about the construction made by the 1st and 2nd defendants, they told him that the said property belonged to them. The defendants have trespassed upon plaint A schedule property and reduced it to their possession. Therefore, the plaintiff is entitled to get a decree for recovery of possession of plaint A schedule property on the strength of her title. She is also entitled to a decree for a mandatory injunction directing the defendants to demolish the wall in plaint A schedule property.

(2.) Defendants 3 to 8 were subsequently impleaded in the suit. Defendants 1, 4 and 5 to 8 filed written statement and additional written statement, contending that the extent of the property shown in the plaint schedules is not covered. At the time of assignment of the property in favour of the 1st defendant, the property was measured by the person brought by Devaki Amma and the document was prepared on that basis. The 1st defendant is not aware of the measurements of the property. The entire property as per the assignment deed was entrusted to the 1st defendant. Thereafter he assigned a portion of that property to one Chacko. He gifted the remaining property in favour of the 4th defendant, who is his wife. Defendants 5 to 8 are unnecessary parties to the suit. The defendants have not trespassed upon plaint A schedule property. The plaintiff is not entitled to get a decree for recovery of possession of plaint A schedule property. Defendants 2 and 3 filed separate written statements, contending that the property shown in the schedules to the written statement belonged to them and they have not trespassed upon any property belonging to the plaintiff.

(3.) Before the trial court, PWs 1 to 3 were examined on the side of the plaintiff and Exts.A1 to A7 were marked. On the side of the defendants, DWs 1 to 3 were examined and Exts.B1 to B7 were marked. The report and plan of the Advocate Commissioner, who was examined as PW3, were marked as Exts.C1 to C5. After appreciating the pleadings and evidence on record, the trial court found that the plaint schedule properties are not properly identified and accordingly the suit was dismissed by the judgment and decree dtd. 28/2/1991. Feeling aggrieved, the plaintiff filed A.S.No.106 of 1991 on the file of the Sub Court, Tirur. The 2nd defendant died during the pendency of the appeal and his legal representatives were impleaded as additional respondents 9 to 21. That appeal ended in dismissal by the judgement and decree dtd. 13/8/2002, which is under challenge in this Second Appeal filed before this Court, under Sec. 100 of the Code of Civil Procedure, 1908.