POOTHARAMANNA VARIYATH SIVADASAN Vs. P.V.AYYAPPAN EZHUTHASSAN

JUDGEMENT

(1.) The defendants in a suit for recovery of possession, injunction and damages for use and occupation are the appellants in this appeal. The respondent is the plaintiff in the suit.

(2.) The case of the plaintiff is that plaint A and B schedule properties form part of the plaint C schedule property measuring 1 acre and 21 cents comprised in survey No.90/2 of Melattoor village and that the defendants have trespassed into a portion of the plaint C schedule property. The portion of the property trespassed into by the defendants is shown in the plaint as the plaint A schedule property. The relief claimed in the suit was a decree for recovery of possession of plaint A schedule property. A decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint B schedule property which is the property remaining with him and a decree for damages for use and occupation of the plaint B schedule property were also sought.

(3.) The plaint C schedule property originally belonged to Aattathrukkovil Devaswom and the same was outstanding on a lease in favour of Pootharamannu Wariam. As per Ext.A5 verumpattam deed, the second defendant who is a member of Pootharamannu Wariam obtained five items of properties from the Wariam including the plaint C schedule property. The plaint C schedule property is included as item Nos.4 and 5 in Ext.A5 verumpattam deed. Later, the properties of Pootharamannu Wariam were partitioned. Ext.A18 is the partition deed. As per Ext.A18 partition deed, a portion of the properties included as item Nos.4 and 5 in Ext.A5 were allotted to the share of the children of the second defendant by including in the B schedule to the said document. Though there is a recital in Ext.A18 that the properties included as item Nos.4 and 5 in Ext.A5 verumpattam deed have been included in schedules A and B to the said partition deed, schedule A to the said partition deed comprises of the properties allotted to the second defendant does not contain the description of the remaining properties covered by item Nos.4 and 5 of Ext.A5 verumpattam deed. However, it is recited in Ext.A18 that the tharwad is not retaining any right in respect of item Nos.4 and 5 properties in Ext.A5 verumpattam deed thereafter and that the rights in respect of the said properties are given to the second respondent and her children absolutely. Schedule B to Ext.A18 partition deed in which a portion of the property covered by item Nos.4 and 5 in Ext.A5 verumpattam deed is included indicates that the total extent of property included in the said schedule is only 104 cents, comprising of an item measuring 11 cents and another item measuring 93 cents, whereas the recitals of Ext.A5 verumpattam deed indicates that the total extent of property dealt with therein is 1 acre and 38 cents. In other words, a combined reading of Ext.A5 verumpattam deed and Ext.A18 partition deed would indicate that the property dealt with in Ext.A5 excluding the property allotted to the daughters of the second defendant as per Ext.A18 was retained by the second defendant herself. On the same day on which Ext.A18 partition deed was executed, as per Ext.A6 release deed, the second defendant had released her leasehold right in respect of the property included in B schedule to Ext.A18 in favour of her children.