Kerala High Court
Sicily Agnas vs Agnes Gelly on 18 September, 2008
Author: V.Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 825 of 2008()
1. SICILY AGNAS, D/O. SICILY, T.C.
... Petitioner
2. JOHN HUSBAND OF AGNES, T.C.NO71/1300(1)
Vs
1. AGNES GELLY, D/O MARY @ MORRI,
... Respondent
2. VINISI FERNANDEZ, T.C.71/1300(4)
3. JOSEPH FERNANDEZ S/O. VISINI FERNANDES,
4. JOSPIN FERNADEZ, S/O. VISINI FERNADES,
For Petitioner :SRI.R.S.KALKURA
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :18/09/2008
O R D E R
V. RAMKUMAR, J.
= = = = = = = = = = = = =
R.S.A.No.825 of 2008
= = = = = = = = = = = = = =
Dated this the 18th day of September, 2008
JUDGMENT
Defendants 4 and 5 in O.S.No.1574/2000 on the file of the I Additional Munsiff's Court, Trivandrum are the appellants in this second appeal. The said suit instituted by the 1st respondent herein was originally for a perpetual and mandatory injunction and was subsequently amended as one for recovery of possession of the plaint schedule property on the strength of title.
2. The concurrent findings recorded by the courts below are as follows:-
The plaint schedule property admeasuring 7 cents comprised in Sy.No. 2799 of Muttathara village was part of a larger extent of 17 cents which originally belonged to one Anthony Rocky, grandfather of the plaintiff. On the death of the Anthony Rocky , the said larger extent of 17 cents devolved upon Anthoniyal, the widow of Anthony Rocky. During the lifetime of the Anthony Rocky himself he had executed Ext.A1 Sthreedhanam deed/document No. 3522/1108(ME) (corresponding to 1933) in favour of the plaintiff's mother and R.S.A.No.825 of 2008 2 father by name Maria @ Mary and Innas with regard to 7 cents of property described in Ext.A1 as situated towards the southern portion of the said 17 cents. It was with regard to the said 7 cents of property that the suit was filed.
3. Both the courts have decreed the suit for recovery of possession on the strength of the plaintiff's title.
4. The learned counsel for the appellants/ defendants 4 and 5 made the following submissions before me in support of the appeal:-
Going by the description in the plaint, the plaint schedule, the property admeasuring 7cents is lying towards the eastern portion of the larger extent of 17 cents. But the property which has been identified by the Commissioner as the plaint schedule property is plot ABCDEI which forms the southern portion of the larger extent of the 17 cents which has been identified as ABCDEFGHI. When the plaintiff herself has no case that the plaint schedule property lies towards the southern portion of the larger extent of 17 cents and the plaint schedule property is also described in the plaint as 7 cents forming the eastern portion of the 17 cents, the courts below could not have granted a decree for recovery of possession in respect of the southern portion of R.S.A.No.825 of 2008 3 17 cents. Ext.C1 report and C1(a) Plan should not have been relied on by the courts below, since they were filed in the court before the impleadment of the appellants as additional defendants 4 and 5.
5. I am afraid that I cannot agree with the above submissions. It is true that, going by the plaint, description of the suit property in the schedule to the plaint is described as the eastern portion of the larger extent of 17 cents. But then, there is no case that the boundaries shown in the plaint schedule are wrong. Both the courts have held that the property identified by the Advocate Commissioner as plot ABCDEI and located towards the southern portion of the larger extent of 17 cents is the property conveyed under Ext.A1 wherein also the property is described as the southern portion of the larger extent of 17 cents. The only defect, if at all, is in the plaint schedule which was not amended in terms of the description in Ext.C1(a) plan submitted by the Commissioner and which is in accordance with Ext.A1 title deed. But both courts have concurrently held that the plaint schedule property though wrongly described in the plaint schedule is the very same property conveyed under Ext.A1 title deed and correctly described as plot ABCDEI in R.S.A.No.825 of 2008 4 Ext.C1(a) plan which is made part of the decree.
6. Hence the maximum which could be said is that the plaintiff may have to amend the plaint to make it in confromity with Ext.C1(a) plan which has been made in fact made part of the decree by the courts below. The plaintiff can still amend the plaint and decree schedule if need be.
7. The further contention that Ext.C1 report and C1(a) plan could not have relied on against the appellants also cannot be accepted since no such contention was raised before the courts below. Moreover, the appellants are none other than the persons who were inducted by defendants 1 to 3 without any authority, right or title in their favour. There is no dispute that Exts.C1 report and C1(a) Plan were prepared in the presence of defendants 1 to 3, hence the above contention is not available to the appellants. No question of law, much less any substantial question of law, arises for consideration in this second appeal which is accordingly dismissed in limine.
Dated this the 18th day of September, 2008.
V. RAMKUMAR, JUDGE sj