Kerala High Court
Anilkumar vs Vasumathy Kunjamma on 12 February, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 12TH DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945
RFA NO. 217 OF 2011
AGAINST THE JUDGMENT IN OS 28/2007 OF SUB COURT, THODUPUZHA
-----
APPELLANT/1ST RESPONDENT:
VIKRAMA KAIMAL, S/O LATE RAMA KAIMAL,
AGED 72 YEARS, PERUMANA BHAVAN, MUTTOM P.O., MUTTOM
VILLAGE, THODUPUZHA TALUK.
BY ADVS.
SRI.K.K.CHANDRAN PILLAI (SR.)
BOBBY THOMAS
A.S.SAJUSH PAUL
THOMAS JAMES MUNDACKAL
TONY THOMAS (INCHIPARAMBIL)
RESPONDENTS/PLAINTIFFS AND DEFENDANTS 2 TO 12:
1 VASUMATHIKUNJAMMA,
W/O LATE BALAKRISHNA
KAIMAL,PALUMADATHIL HOUSE, WEST KODIKULAM, KODIKULAM
VILLAGE, THODUPUZHA TALUK-685582.
2 KANAKAVALLY KUNJAMMA, (DIED; LRs impleaded)*1
WO.LATE K.N.RAMA KAIMAL, PADMALAYAM HOUSE,
WEST KODIKULAM, KODIKKULAM VILLAGE, THODUPUZHA TALUK,
PIN 685582.
3 SOUDAMINI KUNJAMMA,
W/O.P.KRISHNA PANICKER, JYOTHIS, PULLUVAZY P.O.,
PERUMBAVOOR- 683 541.
RFA NO. 217 OF 2011 -2-
4 P.R.SUDHAKARAN, S/O.LATE RAGHAVA KAIMAL,
KRISHNA GARDEN, GOLF LINKS ROAD, VELLALYAMBALAM,
THIRUVANANTHAPURAM-695001.
5 P.R.RAJAN, S/O.RAGHAVA KAIMAL,
PERUMANA BHAVAN, MUTTOM, MUTTOM VILLAGE,
THODUPUZHA TALUK-685 584.
6 USHA, D/O.LATE RAGHAVA KAIMAL,
PERUMANA BHAVAN, MUTTOM, MUTTOM VILLAGE,
THODUPUZHA TALUK-685 584.
7 SANTHI,
D/O.LATE RAGHAVA KAIMAL, PERUMANA BHAVAN, MUTTOM,
MUTTOM VILLAGE, THODUPUZHA TALUK-685 584.
8 SAVITHRI KUNJAMMA, (DIED)*2
W/O.LATE RAGHAVA KAIMAL, PERUMANA BHAVAN, MUTTOM,
MUTTOM VILLAGE,THODUPUZHA TALUK-685 584.
9 SASIDHARA KAIMAL, S/O.LATE PADMAKSHIKUNAMMA, USHES,
GANDHIPURAM ROAD, CHAWADIKUKKU, SREEKARYAM P.O.,
THIRUVANANTHAPURAM-695017.
10 ANILKUMAR, S/O.NARAYANA KAIMAL,
THOLALIL HOUSE, OKKAL P.O., CHELAMATTOM, KUNNATHUNADU
TALUK-683 550.
11 AMBILI, D/O.NARAYANA KAIMAL,
THOLALIL HOUSE, OKKAL P.O., CHELAMATTOM, KUNNATHUNADU
TALUK-683 550.
12 DAKSHAYINI KUNJAMMA, (DIED)*3
W/O.NARAYANA KAIMAL, THOLALIL HOUSE, OKKAL P.O.,
CHELAMATTOM, KUNNATHUNADU TALUK-683 550.
13 AJIKUMAR,
S/O.NARAYANA KAIMAL, THOLALIL HOUSE, OKKAL P.O.,
CHELAMATTOM,, KUNNATHUNADU TALUK-683 550.
RFA NO. 217 OF 2011 -3-
14 ARUNKUMAR,S/O.NARAYANA KAIMAL,
THOLALIL HOUSE, OKKAL P.O., CHELAMATTOM, KUNNATHUNADU
TALUK-683 550.
*1 ADDL. RESPONDENTS 15 TO 18
ADDL.R15 R.PRASAD,
S/O. LATE K.N.RAMAKAIMAL, AGED 55 YEARS,
PADMALAYAM HOUSE, WEST KODIKULAM, KODIKKULAM VILLAGE,
THODUPUZHA TALUK.
ADDL.R16 R.SABU,
S/O. LATE K.N.RAMA KAIMAL, AGED 53 YEARS,
PADMALAYAM HOUSE, WEST KODIKULAM, KODIKKULAM VILLAGE,
THODUPUZHA TALUK,
ADDL.R17 R.MONOJ,
S/O. LATE K.N.RAMA KAIMAL, AGED 50 YEARS,
PADMALAYAM HOUSE, WEST KODIKULAM, KODIKKULAM VILLAGE,
THODUPUZHA TALUK.
ADDL.R18 R.SURESH,
S/O. LATE K.N. RAMA KAIMAL, AGED 55 YEARS,
PADMALAYALAM HOUSE, WEST KODIKULAM,
KODIKKULAM VILLAGE, THODUPUZHA TALUK.
*1 [LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS R15 TO R18 VIDE ORDER DATED 17/11/2023 IN IA
1/2019].
*2 [IT IS RECORDED THAT R4 TO R7, ARE THE LEGAL HEIRS OF THE DECEASED
EIGHTH RESPONDENT AS PER ORDER DATED 22.01.2024 IN MEMO DATED
17.01.2024].
*3 [IT IS RECORDED THAT R10, R11, R13 ARE THE LEGAL HEIRS OF THE DECEASED
TWELFTH RESPONDENT AS PER ORDER DATED 22.01.2024 IN MEMO DATED
17.01.2024].
RFA NO. 217 OF 2011 -4-
BY ADVS.
ALEX.M.SCARIA
SRI.C.K.VIDYASAGAR
SRI.MATHEW JOHN K
P.CHANDY JOSEPH
DOMSON J.VATTAKUZHY
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
12.02.2024, ALONG WITH RFA.462/2011, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 12TH DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945
RFA NO. 462 OF 2011
AGAINST THE JUDGMENT IN OS 28/2007 OF SUB COURT, THODUPUZHA
-----
APPELLANTS/DEFENDANT NOS.8 & 12:
1 ANILKUMAR,
AGED 40 YEARS,
S/O NARAYANAN KAIMAL, THOLALIL HOUSE,OKKAL PO,
CHELAMATTOM, KUNNATHUNADU.
2 ARUNKUMAR, AGED 37,
THOLALIL HOUSE,OKKAL PO, CHELAMATTOM,KUNNATHUNADU.
BY ADVS.
SRI.C.K.VIDYASAGAR
SRI.P.CHANDY JOSEPH
RESPONDENTS/PLAINTIFFS AND DEFENDANTS:
1 VASUMATHY KUNJAMMA, AGED 70,
W/O.LATE BALAKRISHNA KAIMAL, PALUMADATHIL HOUSE,
WEST KODIKKULAM, KODIKKULAM VILLAGE, THODUPUZHA PO.
685 582.
2 KANAKAVALIIKUNJAMMA, AGED 72,
W/O.K.N.RAMA KAIMAL,PADMALAYAM HOUSE, WEST KODIKULAM,
KODIKULAM VILLAGE, THODUPUZHA PO. 685 582.
3 SAUDHAMINIKUNJAMMA, AGED 71,
W/O.KRISHNAPANICKER,JYOTHIS,PULLUVAZHI PO,
PERUMBAVOOOR 683 542.
RFA NO. 462 OF 2011 -2-
4 VIKRAMAKAIMAL, AGED 73,
S/O.LATE RAMAKAIMAL,PERUMANA BHAVAN, MUTTOM,
MUTTOM VILLAGE, MUTTAM PO., THODUPUZHA 685 584.
5 P.R.SUDHAKARAN, AGED 60,
S/O.LATE RAGHAVA KAIMAL, KRISHNA GAREN,
GOLF LINKS ROAD, VELLAYAMBALAM PO,TRIVANDRUM-695 014.
6 P.R.RAJAN, AGED 56 YEARS,
S/O.LATE RAGHAVA KAIMAL,PERUMANA BHAVAN, MUTTOM,
MUTTOM PO,THODUPUZHA TALUK 685 584.
7 USHA, AGED 50,
D/O. LATE RAGHAVA KAIMAL,PERUMANA BHAVAN, MUTTOM,
MUTTOM PO,THODUPUZHA TALUK 685 584.
8 SANTHI, AGED 45,
D/O. RAGHAVA KAIMAL,PERUMANA BHAVAN, MUTTOM PO,
MUTTOM VILLAGE,THODUPUZHA TALUK 685 584.
9 SAVITHIKUNJAMMA, AGED 78,
D/O. RAGHAVA KAIMAL,PERUMANA BHAVAN, MUTTOM PO,
MUTTOM VILLAGE,THODUPUZHA TALUK 685 584.
10 SASIDHARA KAIMAL, AGED 63,
S/O.LATE PADMAKHIKUNJAMMA, USHES, GANDHIPURAM ROAD,
CHAWADIMUKKU, SREEKARYAM PO, TRIVANDRUM 695 017.
11 AMBILI, AGED 35, D/O.NARAYANA KAIMAL,
THALILIL HOUSE, OKKAL PO, CHELAMATTOM,
KUNNATHUNADU TALUK 683 550.
12 DHAKSHAYANI KUNJAMMA, AGED 67,
W/O.NARAYANA KAIMAL, THALOLIL HOUSE, OKKAL PO,
CHELAMATTOM, KUNNATHUNADU TALUK 683 550.
13 AJIKUMAR, AGED 42, S/O.NARAYANA KAIMAL
THALOLIL HOUSE,OKKAL PO, CHELAMATTOM,
KUNNATHUNADU TALUK 683 550.
RFA NO. 462 OF 2011 -3-
BY ADVS.
SRI.DOMSON J.VATTAKUZHY
AMBILY S
SRI.MATHEW JOHN K
RUPA R. NAIR
RUBAN JOE TONIYO
K.K.CHANDRAN PILLAI (SR.)
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
12.02.2024, ALONG WITH RFA.217/2011, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = =
R.F.A. Nos.217 and 462 of 2011
= = = = = = = = = = = = = = = = = =
Dated this the 12th day of February, 2024
J U D G M E N T
The preliminary decree in a suit for partition is
under challenge in these appeals. RFA 217/2011 is filed
by the first defendant and RFA 462/2011 is filed by the
defendants 8 and 12.
2. The plaint schedule consists of two items.
Plaint 'A' schedule is described as 79.8 cents
equivalent to 32.30 Ares in Sy. No.296/2-1 corresponding
to R.S. 25/1 of Muttom village, and the plaint 'B'
schedule is described as 58 cents equivalent to 23.48
Ares in Sy. No.290/1-B. Larger extent of properties
including the plaint schedule properties belonged to one
Rama Kaimal and his wife Nandini Kunjamma. It included
certain family properties of Nandini Kunjamma also. Rama
Kaimal had five children viz. Vasumathi Kunjamma,
Vikrama Kaimal, Padmakshi Aamma, Raghava Kaimal and
RFA Nos.217 and 462 of 2011
Narayana Kaimal. On 16.10.1954, all of them jointly
executed Ext.A1 Partition Deed in respect of the
properties. In the said partition, the plaint 'A' and
'B' schedule properties were allotted to Rama Kaimal.
The plaint 'A' schedule was included in 'A' schedule
item No.1 in Ext.A1, describing the extent of property
as 59 cents. In Ext.A1, the plaint 'B' schedule was
included in 'A' schedule item No.2 therein. The said
properties are sought to be partitioned between the
legal heirs of Rama Kaimal.
3. The first plaintiff is the daughter-Vasumathi
Kunjamma, the first defendant is the son-Vikrama Kaimal,
plaintiffs 2 and 3 and the 7 th defendant are the
children of another daughter-Padmakshi Amma, defendants
2 to 6 are the legal heirs of another son-Raghava
Kaimal, and defendants 8 to 12 are the legal heirs of
yet another son-Narayana Kaimal.
RFA Nos.217 and 462 of 2011
4. According to the defendants, the description of
the plaint 'A' schedule is not correct. The actual
extent of plaint 'A' schedule is only 59 cents as is
described in Ext.A1 Partition Deed. The property is not
available for partition since, on the strength of
Ext.B10 Power of Attorney dated 01.01.1997 executed by
the plaintiffs and defendants 1 to 10 in favour of the
12th defendant, the 12th defendant had conveyed the
property to the 11th defendant as per Sale Deed number
734/1999. With regard to plaint 'B' schedule, it was
contended that, no such property exists.
5. The trial court, declined to recognize Ext.B10
power of attorney and the conveyance executed
thereunder. Plaint 'A' schedule was held to be available
for partition. With regard to the plaint 'B' schedule,
the contention regarding the very non-existence of the
property was negatived, and the property was held to be
available for partition.
RFA Nos.217 and 462 of 2011
6. I have heard learned counsel on either side.
7. The point that arises for determination are :-
(i) When Ext.B10 power of attorney and the sale deed
pursuant thereto are apparently executed by the plaintiffs, are
the plaintiffs entitled to seek for partition of the property
without seeking to set aside the documents ?
(ii) Was the trial court right in having refused to
recognize Ext.B10 Power of Attorney and the conveyance
executed based on the same?
(iii) Is the finding of the trial court regarding the
availability of plaint 'A' schedule for partition, sustainable?
(iv) Is the finding of the trial court regarding the
existence and availability of plaint 'B' schedule for partition,
based on evidence and sustainable?
(v) Was the trial court right in holding that, if there is any
deficit in the total extent available within the common
boundaries of the plaint 'B' schedule and the property in Ext.B4
Gift Deed, the extent of properties are to be fixed
proportionately?
8. Regarding the plaint 'A' schedule property, it
is the contention of the defendants that the description
by extent, as 79.8 cents, is not correct and that the
RFA Nos.217 and 462 of 2011
actual extent is only 59 cents as mentioned in Ext.A1.
The plaintiff would contend that, on re-survey, the
actual extent is found to be 79.8 cents.
9. The suit is presently in the preliminary decree
stage. Question regarding the actual extent of the
property available, does not fall for determination in
the preliminary decree proceedings. Therefore, the said
contention is left open to be decided at the appropriate
stage.
10. Regarding the plaint 'A' schedule it is the
contention that, the plaintiffs, defendants 1 to 10 and
the 12th defendant had jointly executed Ext.B10 Power of
Attorney dated 01.01.1997 in favour of the 12 th
defendant. On the strength of the said power of
attorney, the 12th defendant had executed Sale Deed
No.734/1999 in favour of the 11 th defendant. There is a
further claim that the property was thereafter conveyed
by the 11th defendant to one Stanley under Sale Deed
RFA Nos.217 and 462 of 2011
No.894/2007. According to the defendants, the conveyance
in favour of the 11th defendant was pursuant to a family
understanding. The first plaintiff as PW1, denied her
signature in the power of attorney. According to her,
for effecting mutation of the property she was required
to sign in a white paper and that she never executed a
power of attorney. It is contended that, Ext.B10 is seen
to be attested by a Notary at Perumbavoor whereas most
of the executants are residing in Thodupuzha and the
property is situated at Thodupuzha.
11. The trial court observed that Ext.B10 is not a
registered power of attorney and in terms of Sections 32
and 33 of the Registration Act, an unregistered power of
attorney is not recognized for presentation of a deed of
conveyance. Accordingly Ext.B10 power of attorney was
discarded. It was also observed that, evidence to find a
family arrangement is lacking.
RFA Nos.217 and 462 of 2011
12. The fact that, based on the power of attorney
there had been a conveyance as Sale Deed No.734/1999 in
favour of the 11th defendant by the 12th defendant, is
not disputed. In the written statement the defendant had
specifically set up Ext.B10 Power of Attorney and the
Sale Deed. In spite of the same, the plaintiffs never
chose to incorporate a relief in the plaint, challenging
Ext.B10 and the sale deed. But for the case set up
during the evidence as PW1, there is no pleading as
against Ext.B10 Power of Attorney and the sale deed, nor
was any relief claimed as against those documents.
13. The learned counsel appearing for the
plaintiffs would contend that, the existence of the
power of attorney and the sale deed was brought to the
notice of the plaintiffs only through the written
statement and that, but for a subsequent pleading in
terms of Order VIII Rule 9 of the Code of Civil
Procedure, and that too only with the leave of the
RFA Nos.217 and 462 of 2011
Court, no further pleading is contemplated under the
Code of Civil Procedure. Therefore, even without a plea
and relief challenging the documents, it is open for the
plaintiffs to disprove the documents by adducing
evidence, it is argued.
14. I am unable to subscribe to the said
contention. So long as the power of attorney and the
conveyance made thereunder stands, the suit for mere
partition could not be decreed. When there is a document
which, on the face of it appears to be one executed by
the plaintiffs and whereunder their rights have been
conveyed, it is necessary for them to get the document
adjudged to be void or to get it set aside by seeking
appropriate reliefs. In MD. Noorul Hoda v. Bibi Raifunnisa and
Ors. (1996) 7 SCC 767, the Apex Court held:-
"When the plaintiff seeks to establish his title to the property
which cannot be established without avoiding the decree or an
instrument that stands as an insurmountable obstacle in his
way which otherwise binds him, though not a party, the
RFA Nos.217 and 462 of 2011
plaintiff necessarily has to seek a declaration and have that
decree, instrument or contract cancelled or set aside or
rescinded."
In Mabeeba Begum & Ors. v. Gulam Rasool & Ors. 1999 (2) APLJ 119
(HC), it was held that, in respect of completed
transactions to which a person is a party signatory, he
has to necessarily file a suit for cancellation of the
document without which any other relief sought for is
not maintainable.
15. Ext.B10 Power of attorney, on the face of it,
contains the signatures of the plaintiffs and appear to
be executed by the plaintiffs. On the strength of the
power of attorney a sale deed has been executed. The
suit for partition cannot be decreed on the face of
Ext.B10 Power of Attorney and the conveyance based on
the same whereunder the rights of the plaintiffs are
purportedly conveyed. If it is the case of the
plaintiffs that they had never executed Ext.B10 and that
RFA Nos.217 and 462 of 2011
they were unaware of the existence of such a document,
then, at least on the filing of the written statement
they had notice regarding the power of attorney and the
sale deed executed on the strength of the same. The
plaintiff having come to know about the documents, they
ought to have taken appropriate steps to incorporate
appropriate reliefs in the suit challenging the
documents. When the document on the face of it purports
to be one executed by the plaintiffs, they cannot ignore
the same even after they have knowledge/notice regarding
the same. Unless the documents are avoided in a manner
known to law, the clam for mere partition could not be
maintained.
16. Therefore, when Ext.B10 power of attorney
expresses itself to be one executed by the plaintiffs,
and the rights of the plaintiffs have been conveyed
thereunder, it is not open for them to ignore the same
and seek for partition. They are bound to seek
RFA Nos.217 and 462 of 2011
appropriate reliefs as against the said document. The
mere suit for partition of plaint 'A' schedule is thus,
bound to fail.
17. Now adverting to the reason given by the trial
court with reference to Sections 32 and 33 of the
Registration Act that, since Ext.B10 is an unregistered
power of attorney it could not be recognized, in Rajni
Tandon v. Dulal R. Ghosh Dastidar 2009 (3) KLT 607(SC), it was
held that a person who executes a document by virtue of
a power of attorney, is the actual executant of the
document and is entitled to present it for registration,
and that, it is only in a case where the power of
attorney authorises only the presentation of a document
for registration that Section 33 gets attracted. The
Apex Court held :-
"29. Where a deed is executed by an agent for a principal and
the same agent signs, appears and presents the deed or admits
execution before the Registering Officer, that is not a case of
presentation under S.32(c) of the Act. As mentioned earlier the
RFA Nos.217 and 462 of 2011
provisions of S.33 will come into play only in cases where
presentation is in terms of S.32(c) of the Act. In other words,
only in cases where the person(s) signing the document cannot
present the document before the registering officer and gives a
power of attorney to another to present the document that the
provisions of S.33 get attracted. It is only in such a case, that
the said power of attorney has to be necessarily executed and
authenticated in the manner provided under S.33(1)9a) of the
Act.
30. In the instant case, Indra Kumar Halani executed the
document on behalf of Shri N.L.Tantia under the terms of this
power of attorney. He then presented it for registration at the
Registration Office and it was registered. The plea taken by the
Respondents that in order to enable him to present the
document it was necessary that he should hold a power of
attorney authenticated before the Sub-Registrar under the
provisions of S.33 is thus not supported by the language of
S.32. The provisions of S.33 therefore only apply where the
person presenting a document is the general attorney of the
person executing it, and not where it is presented for
registration by the actual executant, even though he may have
executed it as against for some one else. In this case, the
presentation is by the actual executant himself and is hence
entitled under S.32(a) to present it for registration and to get it
registered."
RFA Nos.217 and 462 of 2011
Therefore, the trial court could not have discarded
Ext.B10 power of attorney and the subsequent sale deed
executed by relying on Section 32 and 33 of the
Registration Act.
18. Plaint 'A' schedule property having been
conveyed on the basis of Ext.B10 power of attorney, it
was not available for partition and a decree could not
be granted with regard to the same. The decree for
partition granted in respect of plaint 'A' schedule
property is liable to be interfered with.
19. With regard to the plaint 'B' schedule
property, which is described as 58 cents in Sy.
No.290/1-B, the defence contention is that such property
does not exist. It is to be noticed that, under Ext.A1
Partition Deed, the first defendant was allotted 1.70
acres of property in Sy. No.290/1-A. It is the specific
case of the first respondent in his written statement
that, the description by survey number, of the 1.70
RFA Nos.217 and 462 of 2011
Acres allotted to him under Ext.A1 is a mistake and that
the correct survey number is Sy. No.297/1. The mistake
was realised while trying to effect mutation. Thereupon,
Rama Kaimal-the father, executed Ext.B4 Gift Deed in his
favour in respect of the 1.70 Acres showing the correct
survey number viz. 297/1. It is not in dispute that
survey number 290/1 is situated else where and the
mentioning of survey No.290/1 as was belonging to the
parties is a mistake. As noticed by the trial court, the
boundary description of the 1.70 Acres of the first
defendant which is referred above, and that of the
plaint 'B' schedule property which is also described to
be situated in Survey No.290/1 are one and the same.
Therefore, it is evident that, there is an error in the
survey number of the plaint 'B' schedule property and
also in the 1.70 acres of the first defendant. In the
cross-examination of the first defendant as DW1, he has
admitted that the mentioning of Survey No.290/1 with
RFA Nos.217 and 462 of 2011
regard to his 1 Acres and 70 cents in Ext.A1 is a
mistake and that the correct survey number is 297/1. It
is further admitted that the boundaries of the plaint
'B' schedule property and the said one Acre and 70 cents
is one and the same. He has also admitted that there is
a mistake in the survey number. A pointed question was
put to DW1 that would it not have been correct if the
survey number of the 58 cents included in plaint 'B'
schedule was mentioned as survey number 297/1, he
answered in the affirmative. The relevant portion of the
deposition of DW1 goes thus,
"A ]-«n-I 3þmw \-¼À B-bn AÑ-\p h-¨n-cn-¡p-ó 58
cent sâ survey number 2971-1 F-óm-bn-cp-óp F-
¦nð i-cn B-Ip-am-bn-cptóm (Q) i-cn B-Wv (A). Rm³
F-sâ h-kv-Xp-hnsâ survey number Xn-cp-¯n-¨p AÑ-
sâ h-kv-Xp-hnsâ survey number Xn-cp-¯m³ Rm³
{i-aw \-S-¯n-bnñ. B h-kv-Xp C-t¸mÄ \n-§-fp-sS h-kv-
Xp-hn-sâ `m-Kw B-bn tNÀ-¯p h-¨p A-\p-`-hn-¨p hcp-I
Añ (Q) BWv (A) ap-àn-bmÀ Ir-Xr-aw B-bn F-sâ Xm-
ev]-cy {]-Im-cw D-ïm-¡n F-óv ]-d-ªmð i-cnbñ.".
RFA Nos.217 and 462 of 2011
Therefore it could not be challenged that, the
description of the plaint 'B' schedule by survey number
is not correct. The plaint 'B' schedule and the 1 Acre
and 70 cents belonging to the first defendant lie within
the very same boundaries. The contention regarding non-
existence of plaint 'B' schedule property cannot be
sustained.
20. The grievance of the first defendant is with
regard to the finding of the trial court at paragraph 12
of the judgment. The finding reads thus :-
". . . . . I find that if the actual extent of the property now in
existence within the said boundary description is less than the
extent of the respective properties in the partition deed then
the properties are required to be identified within the said
boundary description by proportionate reduction in the
extent."
The learned Senior Counsel would argue that the plaint
'B' schedule is in Sy. No.290/1 whereas the property
belonging to the first defendant is in Sy. No.297/1.
RFA Nos.217 and 462 of 2011
Therefore, the properties are different and there cannot
be any proportionate reduction from the 1 acre 70 cents
if it is found that there is any deficit in the total
extent. It is also argued that the first defendant has
obtained 1 Acre and 70 cents under Ext.B4 Gift Deed
which cannot be related to the properties included in
Ext.A1 Partition Deed. As regards the first contention,
as noticed earlier, the mentioning of Sy. No.290/1 in
Ext.A1 Partition Deed is a mistake. Therefore, the first
contention goes.
21. Regarding the second contention, at paragraph
10 of the written statement, the 1 st defendant has
pleaded thus :-
". . . . . .As already stated in partition deed No.4350/1954, 1.70
Acres of property comprised in Sy. No.290/1 of Muttom Village
was included in the F schedule and set apart towards the share
of this defendant. In fact the F schedule and set apart towards
the share of this defendant. In fact the survey number of the
property is 297/1 which was mistakenly shown as 290/1. Hence
even after the execution of the partition deed, the revenue
RFA Nos.217 and 462 of 2011
authorities did not effect the mutation of the properties to this
defendant's name. This mistake was ultimately detected in the
year 1976 and in order to correct the revenue records, late
Rama Kaimal had executed a gift deed in favour of this
defendant in respect of the said 1.70 Acres of land. . . . . . "
Therefore, it is the definite case of the first
defendant that Ext.B4 was executed in respect of the
property allotted to him in 'F' schedule in Ext.A1
Partition Deed and that since there was a mistake in
survey number, a fresh document as Ext.B4 was executed
to correct the revenue records. Therefore, the title
claimed by the first defendant under Ext.B4 is not
independent of Ext.A1 but is in respect of the very same
property which was allotted to him in 'F' schedule in
Ext.A1. First defendant never had a case of independent
title over the 1 Acre and 70 cents under Ext.B4 dehors
Ext.A1 partition. In fact his definite contention is to
the contrary. Therefore, the said argument also fails.
RFA Nos.217 and 462 of 2011
22. As noticed, the boundary description on all the
four sides of plaint 'B' schedule property and the
property covered under Ext.B4 is one and the same. The
properties lie within the common boundary and both were
subject matter of Ext.A1 partition. If on actual
measurement there is any reduction in the total extent,
it has to be borne proportionately by the sharers. The
trial court was right in having held so.
23. Learned Senior Counsel would next refer to the
deposition of PW1 wherein he has in cross-examination
stated that he has no quarrel with regard to the 1 Acre
and 70 cents of the first defendant, and contend that,
in view of the said admission, the first defendant is to
be allotted the 1 Acre and 70 cents and only the balance
if any, can be included in the plaint 'B' schedule. It
would be relevant to refer to the said portion of the
deposition. The same reads thus:-
RFA Nos.217 and 462 of 2011
"1þmw {]-Xn-bp-sS H-cp G-¡À 70 cent s\ ¸-än XÀ-¡w
Hópw Cñ. B-Xp Iq-Sm-sX B boundary bv-¡p-Ånð
58 skâ v Iq-Sn Dïv."
The above statement read in its entirety cannot be
understood to mean that the plaintiff seeks for
partition of only the extent remaining after allotting 1
Acre and 70 cents to the first defendant. PW1 is in fact
categoric that within the said boundaries lies the total
extent of 1 Acre 70 cents and also the plaint 'B'
schedule (58 cents). It is in the said background that
he has said that he does not have any quarrel with the 1
Acre 70 cents of the first defendant. It doesn't mean
that he is satisfied the extent remaining after
excluding the 1 acre 70 cents.
24. Finding of the trial court with regard to the
partibility of plaint 'B' schedule property warrants no
interference.
RFA Nos.217 and 462 of 2011
25. There is no challenge with regard to the shares
of the parties as allotted by the trial court.
In the result, RFA 462/2011 is allowed. The decree
and judgment of the trial court in so far as it relates
to the plaint 'A' schedule property is set aside. It is
held that plaint 'A' schedule property is not available
for partition. The suit in respect of the same will
stand dismissed. The decree and judgment of the trial
court with regard to the plaint 'B' schedule property
warrants no interference. RFA 217/2011 is accordingly
dismissed. Parties to bear their respective costs.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
