OMANA AMM Vs. CHANDRASEKHARAN PILLAI

JUDGEMENT

(1.) Appellants are the defendants in the suit. The 2 nd defendant is the grand daughter of the 1 st defendant. The plaintiff and the 1 st defendant are the children of one Sarasamma Amma. The 1 st defendant is born to Raghava Kurup and the plaintiff is born to Chellappan Pillai. The suit was for fixation of boundary, partial cancellation of Ext.A4, recovery of possession with mesne profit, and consequential injunction.

(2.) Plaintiff's claim, in substance, is that the Plaint A schedule property having an extent of 19 cents belonged to the plaintiff as per 7 th schedule in Ext.A1 Partition Deed of the year 1990. Plaint B schedule property having an extent of 6 cents is derived by the plaintiff as per Ext.A2 document. It is situated on the western side of plaint A schedule property. Both these properties are lying as a compact plot. It is recorded in resurvey as 11.50 ares. Sarasamma Amma derived plaint C schedule property having an extent of 6 cents as per 1 st schedule in Ext.A1 Partition deed. The said C schedule property is situated on the immediate northern side of A schedule property. In Re- survey, Plaint C schedule property is recorded as 2.40 ares in Resurvey No.251/11 in Block No.37 of Parippally Village. Though plaint C schedule property was allotted to Sarasamma Amma, the same was in absolute possession and enjoyment of the plaintiff, which was lying contiguous to plaint A and B schedule properties. The plaintiff was residing in the house in the property, which was in a dilapidated condition. He renovated it. He was looking after his mother, Sarasamma Amma, till her death. The mother had assured him to give plaint C schedule property to the plaintiff. Later, on 3/4/2006, the plaintiff came to know that Sarasamma Amma and DW2, who is another son of Sarasamma Amma had created Ext.A4 Settlement and Release deed in respect of Plaint C schedule property in favor of the 1 st defendant on 23/6/2003. Ext.A4 Deed covers not only Plaint C schedule property but also the property in which residential building of the plaintiff's father Chellappan Pillai is situated measuring 3.50 Ares making a total extent of 5.90 Ares. The document was registered at Chadayamangalam Sub Registrar Office. Sarasamma Amma had only 2.40 ares in Resurvey No.251/11. The 1 st defendant filed O.S No.11/2006 against the wife of the plaintiff and the tenant occupying the residential building, showing the aforesaid description of the property having 5.90 ares. After obtaining an order of interim injunction, the 1 st defendant dispossessed the tenant from the residential building and removed the belongings of the plaintiff's wife that were kept locked in one of the rooms in their residence. The interim order was later vacated, directing to maintain the status quo. Appeals were filed, and the appeals were disposed of, setting aside the Interim Order of the Trial Court with a direction to take evidence and dispose of the case within six months. Thereafter, O.S.No.11/2006 was dismissed for default since the 1 st defendant remained absent on the listed day for trial. Application for restoration of the suit was dismissed for non-payment of cost. Thus, the 1 st defendant took illegal possession of the residential building of the plaintiff situated in A and B schedule properties bearing No. KPXII/35 after dispossessing the tenant under the cover of an injunction order in O.S No.11/2006. Since the 1 st defendant has forcefully put her granddaughter/1st defendant and husband in possession of the residential building, it is liable to be recovered. The plaintiff is entitled to get a mesne profit @ Rs.1,000.00 per month. Hence, the suit was filed for fixing the boundaries of A, B, and C schedule properties, recovery of possession of the house in the property, and to remove the part of the entries made in Ext.A4 document that the property covered thereunder is 5.90 Ares in Sy No.8982/9-3 (Resurvey No.25/11).

(3.) The 1 st defendant opposed the suit prayers by filing a Written Statement contending, inter alia, that the suit is bad for the non- joinder of necessary parties. The suit is barred by limitation. The extent of property wrongly stated with reference to resurvey cannot be acted upon. The plaintiff derived 19 cents, equivalent to 7.89 Ares, out of the 26 1/2 cents of land in old survey No.8982/9/3 and 6 cents in old survey No.8982/1/6. But A schedule property is described as 8.40 Ares in the place of 7.89 Ares, along with trees and building and well. Plaint B schedule is having an extent of 6 cents as per document. But in Re-survey the same is recorded as 3.10 Ares. The actual extent of the ownership and possession of the plaintiff is 25.490 cents, equivalent to 10.32 Ares. But it is scheduled as 28.405 cents, equivalent to 11.50 Ares. It is made for the purpose of usurping the defendants' property. Mother Sarasamma Amma got first schedule property in Ext.A1 with excess land along with residential building, bathroom and well which are mentioned in the said deed itself. The property comprised in survey No.8982/9/3 and 8982/5/1, along with excess land, had been in absolute possession and enjoyment of Sarasamma Amma as per Ext.A1 Partition deed. She, along with DW2, the second party in the said Partition Deed disposed the said property in favour of the 1 st defendant as per Ext.A4 Settlement deed. The said property is scheduled as a counterclaim schedule property. She denied that the plaintiff came to know about Ext.A4 only on 3/4/2006. The first defendant had filed the suit when the plaintiff attempted to interfere with the property. There is no need to fix the boundary as the counterclaim schedule property is lying well separately. The plaintiff is attempting to take advantage of the mistake committed in the resurvey with respect to the excess land coming within the counterclaim schedule property. The 1 st defendant has settled the counterclaim schedule property in favour of the 2 nd defendant. The defendants apprehend unnecessary interference from the plaintiff with respect to the enjoyment of the Counterclaim schedule property, and hence, the Counterclaim is made for a permanent prohibitory injunction.