SIMON Vs. KUNJUKUTTY

JUDGEMENT

(1.) The suit for declaration of title and recovery of possession was dismissed by the trial court. The decree was reversed in appeal. Hence this appeal by the defendant.

(2.) The plaint 'A' schedule property has an extent of 26 cents. The plaint 'B' schedule described as having an extent of 6.75 cents is claimed to be the western portion of the plaint 'A' schedule and part of the plaint 'A' schedule. The plaintiff claim title over the 'A' schedule property as per Ext.A3 settlement deed executed by the first plaintiff in favour of second plaintiff. Ext.A2 is the prior deed viz. patta issued in the year 1976. The property of the defendant is on the western side of the plaint 'A' schedule property. Alleging that the defendant trespassed into the western most portion of the plaint 'A' schedule property, which is the plaint 'B' schedule, the suit is filed for recovery of possession of the same, on the strength of title. The defendant raised rival claim of title. According to the defendant, the plaint 'B' schedule is part of the property belonging to him under Ext.B2 partition deed.

(3.) The suit was originally decreed in part finding possession with the plaintiff, and holding that the title was not proved. Both the plaintiff and the defendant preferred appeals. The first appellate court as per common judgment remanded the suit back to the trial court for fresh disposal after identification of the properties. Thereafter, Exts.C2 report and C2(a) plan was prepared. The trial court found against the identification and dismissed the suit. Challenging the dismissal, the plaintiffs filed appeal. The appellate court accepted Ext.C2 report and Ext.C2(a) plan and granted a decree for recovery of plaint 'B' schedule property. Aggrieved, the defendant is in appeal.