AIYSUMMA Vs. MARIYAMMA

JUDGEMENT

(1.) The plaintiff who was successful in the Trial Court and who lost in appeal is the appellant. The suit was one for a permanent injunction restraining the two defendants respondents from entering into the plaint schedule property, from dismantling and removing the fence and edus on all the sides and from doing anything which will change the character and lie of the property and from interfering with the peaceful possession and enjoyment of the same by the plaintiff. The property concerned is 1.83 acres of land in Sy.No.1117/13A and 17 cents in Sy.No.1117/138 of Thrikkakara North Village. It is styled as Kollamparambu Purayidom, on the south-west and north of which are properties belonging to the defendants.

(2.) According to the allegations in the plaint, this property which formed part of a larger extent of 3.58 acres known as Kollamparambu Purayidom belonged to one Pakkayi who had two sons Pareed and Bava. There was a partition of Pakkayi's properties by Ext.A1 dated 7-12-1072 ME namely the plaint schedule property allotted to Pareed and southern portion which had an actual extent of 1.73 acres allotted to Bava. A1 that time the property had not been surveyed. Subsequently the survey operations were conducted in the years 1082-1084 ME when the property was included in Sy.No.1117 and the plaint schedule property of two acres was surveyed in Nos. 1117/13A and 13B with the extents mentioned earlier. After Pareed's death his heirs divided the properties among themselves by the deed of partition Ext. A2 dated 10-8-1108. The plaint schedule property was allotted to Ahammad, one of the children of Pareed under this partition. Subsequent to the survey patta for the entire extent of 3.58 acres was issued in the name of Pareed's brother Bava, which was incorrect. Ext.A2 therefore mentioned that the allottee Ahammad may take the steps necessary in law to have the said patta set aside and to have the patta issued in his name. Ahammed subsequently assigned his rights over the plaint schedule property obtained under Ext.A2 to the plaintiff's father Avukkar by the deed of sale Ext. A3 dated 29-1-1109 ME. The plaintiff is the only child of Avukkar and is in possession of the property since his death, for over 20 years prior to the date of suit. She is residing in the property. There are fences on all the four sides and the plaintiff is raising seasonal cultivation. The property, according to the plaintiff, have well defined boundaries and edus on all sides.

(3.) The defendants husband and wife, purchased the adjacent properties as also the portion of the Kollamparambu Purayidom on the southern side allotted to Bava under the deed of partition of 1072. Bava's rights had actually been transferred to one Kosakkaveettil people who assigned it to one Yusuff Sail by Ext.A7 dated 31-12-1104 ME. The defendants purchased the rights under Ext.A7 and the other adjacent properties which Yusuff Sait had obtained under the documents Exts.A5, A6 and A8 from Yusuffs son Ismail Sait by the document Ext.A4 dated 25-8-1960. Defendants are in possession of the adjacent property allotted to Bava as also the southern properties which had a very large extent of about 16.44 acres.