Devaki vs Janaki and Others

Thottathil B. Radhakrishnan, J.—Plaintiff appeals against the judgment of the learned single Judge dismissing her first appeal against the dismissal of the suit for declaration, recovery of possession and injunction. Sankaran Mestry and Paru Amma had four children; the plaintiff, first defendant, Vasu and Padmavathi. After the demise of Sankaran Mestry, the first defendant filed O.S. 67/78 before the Munsiff Court, Kalpetta for partition. A preliminary decree was passed in that suit. Pending A.S. 48/81, the first appeal from that preliminary decree, Vasu released his undivided right in favour of the plaintiff herein, as per Ext. A2. Padmavathi released the undivided share in her favour as per Ext. A3. The first defendant also released his undivided share to the plaintiff as per Ext. A1. Thus the plaintiff came to hold the title to the entire property which was the subject matter of O.S. 67/78. A.S. 48/81 was withdrawn, thereupon.

The dispute that thereafter arose was regarding the extent of the land. According to the plaintiff, though the plaint schedule in O.S. 67/78 was described as 10 acres, the land was identified by the Commissioner as 12.50 acres. The plaintiff alleged that by virtue of the aforesaid release and an earlier agreement, she has absolute title to the entire 12.50 acres and that the defendants have attempted to trespass into 2 = acres. On such plea, she filed O.S. 73/87 for a decree of perpetual prohibitory injunction. In the report of the Commissioner deputed from that suit, it was disclosed that defendants in that suit were holding that parcel. Hence plaintiff withdrew O.S. 73/87 with leave and liberty. Thereafter, she filed the suit from which this appeal arises, for recovery of possession of what is described as B schedule property. That is shown to be 2 = acres, out of 12.50 acres which is described as A schedule.

The trial court dismissed the suit. Learned single Judge, in first appeal, confirmed such dismissal.

Before us, learned Counsel for the appealing plaintiff argued that the genesis of the properties and title being as noted above, the suit could not have been dismissed at all because whatever was left behind by Sankaran Mestry ultimately stood with the plaintiff in absolute title on the basis of Exts. A1, A2 and A3 release deeds by the first defendant, Vasu and Padmavathi respectively. It is accordingly argued that the extent as determined by the Commissioner is not that matters and the defendants did not have any shred of right to impeach the title of the plaintiff and therefore, to have a decree for recovery of possession on the strength of such title.

Per contra, learned Counsel for the respondents defendants argued that Ext. A9 agreement between the parties on 9.8.1962 and the release deeds specifically deal with only 10 acres and such extent mentioned in those documents categorically show that the entire extent of properties, i.e., is 12.50 acres, was not, in its entirety, released to the plaintiffs by her siblings. What was dealt with under Exts. A1, A2 and A3 as also Ext. were only 10 acres, leaving out 2.50 acres which is in the exclusive possession of the defendants, it is argued.

The preliminary decree in O.S. 67/78 was passed on 14.8.1980. The Commissioner's report in that suit is dated 6.4.1982. A.S. 48/81 - the first appeal from that preliminary decree was withdrawn only on 25.6.1987. Therefore, after the preliminary decree was passed by the trial court on 14.8.1980, the parties could be taken to have been aware of the fact that the actual extent of property is 12.50 acres. Though, Exts. A2 and A3 by Vasu and Padmavathi were executed in favour of the plaintiff before the said extent of the land being identified by the commissioner,. Ext. Al by the first defendant was nearly three years after the Commissioner's report in O.S. 67/78. It was only thereafter that the first appeal A.S. 48/81 was withdrawn on 25.6.1987. Obviously therefore, the first defendant and the plaintiff, at that point of time, cannot be expected to have been ignorant of the fact that the property is not 10 acres, but 12.50 acres. As rightly noted by the learned single Judge in paragraph 5 of the impugned judgment, it was for the first time that the Commissioner reported that the extent is 12.50 are and the first defendant must have known this fact and the plaintiff also must be attributed with knowledge of this fact because both were parties to that suit. Learned single Judge rightly noticed that it was nearly three years after the Commissioner submitted the report, that the first defendant executed Ext. A1 in 1985, which refers only to 10 acres. This, in our view, is a plausible appreciation of the facts on record, that too, in the process of confirming the judgment issued by the court of first instance in a litigation between siblings. We are of the view that such findings cannot be treated as wrong.

The argument on behalf of the appellant that the release deeds were of whatever share was available as heirs of Sankaran Mestry and therefore, the determination of the extent would not matter does not appeal, having regard to the manner in which the lie of the property and the boundaries are described. The discussions by the learned single Judge in paragraph 6 of the impugned judgment, accepting the views of the trial court regarding the description of the property cannot be found fault with. Learned single Judge was therefore justified in holding that the weight of probability is that the first defendant wanted to exclude that portion of the paramba where he was residing and that one cannot take much exception to the conclusion arrived at by the trial court that Ext. Al related to 10 acres only. Learned single Judge has visualized, quite rightly, the probability of future litigations. We do not find any error of jurisdiction or erroneous appreciation of evidence by the trial court or the learned single Judge. We, therefore, find no way to hold that those judgments warrant interference in this appeal. The AFA fails.

In the result, this appeal is dismissed with costs.