KALLIL THIRUVALIL ABDULLA HAJI Vs. EARAYINTAVIDE ANNERI KRISHNAN

JUDGEMENT

(1.) PLAINTIFF in OS 72/88 on the file of Munsiff Court, Thalassery is the appellant. Appellant died subsequent to the filing of the appeal. Additional appellants 2 to 6 were impleaded as his legal heirs. Defendant therein is the respondent. Appellant instituted the suit seeking a decree for recovery of possession of plaint 'B' schedule property and for permanent prohibitory injunction from trespassing into 'A' schedule property excluding 'B' schedule property and also to remove the bunk from the 'B' schedule property. According to appellant, plaint 'A' schedule property along with the remaining property originally belonged to Kallil Sooppi under Ext. A1 kuzhikanam deed executed by Ibrayi, the landlord Sooppi transferred his rights under Ext. B4 in favour of Aleema and thereafter Aleema transferred it in favour of appellant under Ext. A2 assignment deed and appellant has been in possession of the entire extent of 12 six feet koles east west and 5 six feet koles north south. While so under Ext. A3 he created a wakf in favour of Kallummel @ Kalathil Prammal Palli on 26/10/1968 in respect of 5 1/2 x 5 six feet koles portion of that property. According to appellant, the remaining 2 1/2 cents of the property was kept with him in his possession and it is the plaint A' schedule property. It was contended that while so respondent attempted to trespass into the property on 19/12/1987 and appellant filed a compliant before the Police and respondent undertook that he will not trespass into the property. It was alleged that thereafter on 28/02/1988 respondent kept a bunk in the plaint 'B' schedule property, which is part of the 'A' schedule property, and he has no right over the plaint 'B' schedule property and therefore appellant is entitled to recover possession of 'B' schedule property after removing the bunk placed therein by respondent. It was contended that as respondent is attempting to trespass into the remaining portion of plaint schedule property, he is also to be restrained by a decree for permanent prohibitory injunction.

(2.) RESPONDENT in the written statement contended that from the description of the plaint 'A' schedule property, it is seen that the property is in his possession and appellant has no manner of right or possession to the property. It was contended that plaint 'A' schedule property has been in the direct possession of respondent and it is part of a contiguous area in his possession and the footpath leading to his house on the north and it is a part of a vast area consisting of 1 acre 14 cents in survey Nos. R. S. 25/2, 52/3, 53/3, 25/1 respectively which originally belonged to one Bavachi Haji and he leased out the whole plot including 'A' schedule property having an extent of 1.14 acres to Kunhiraman, his uncle and Karumban the father of respondent as per Ext. B1 kuzhikanam deed of 1940 and half right of Kunhiraman over the Kuzhikanam right was later purchased by Cheeru, the mother of respondent and 'A' schedule property is part of the said property. It was also contended that after the death of Karumban father of respondent his half right devolved on his widow and children including respondent and as per registered partition deed 2485/65 properties were divided into five shares and item No. 2 in the 'D' schedule was allotted to respondent it includes plaint 'A' schedule property and respondent assigned the western portion of property obtained under partition and being on the road side to K. C. Kunhiraman who put up a shop building therein and the eastern boundary shown in those documents is the plaint 'A' schedule property in the possession of respondent and appellant is therefore not entitled to the decree sought for.

(3.) SECOND Appeal was admitted after formulating the following substantial question of law. 1) When there was no dispute as to the identity of the properties, whether first Appellate Court was justified in dismissing the suit on the ground that the properties have not been identified? 2) Whether on the evidence the finding of first Appellate Court that plaint schedule property was not identified is correct and if the properties are not properly identified, was it justified in dismissing the suit without granting an opportunity to the plaintiff to establish the identity?