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Judges : M.MADHAVAN NAIR
KUNJU PAKIAM - Appellant
Versus
KRISHNAN NADAR - Respondent
Case No : C. M. A. No. 107,163 of 1961
Decided On : 12/12/1962
Advocates Appeared :
S. Nilakanta Iyer; K. S. Rajamony; For Appellant G. Viswanatha Iyer; For Respondents
Appeals - Property Dispute - O. S. No. 544 of 1057, O. S. No. 1438 of 1119 - [O. S. No. 544 of 1057, O. S. No. 1438 of 1119] - The court discussed the ownership and partition of a piece of land and the trespass by defendants. The judgment highlighted the importance of proper judgment by the court, proof of involvement of suit properties in the referred suits, and physical possession of the property. The court emphasized the duty of the appellate court to review evidence and provide clear findings.
Fact of the Case:
The suit involved a property dispute regarding the ownership and partition of a piece of land, as well as a trespass by the defendants. The court had to determine the validity of the previous judgment and the involvement of the suit properties in the referred suits.
Finding of the Court:
The court found that the judgment of the Principal Subordinate Judge was inadequate and directed the judge to restore the appeal and dispose of the same afresh. Both parties to the appeal were aggrieved by the judgment of the Subordinate Judge, and no order was made as to costs in either appeal.
Issues: The issues included the adequacy of the judgment by the court below, proof of involvement of suit properties in the referred suits, and physical possession of the property described in the plaint A schedule on the date of the suit and the act of trespass attributed to the appellant.
Ratio Decidendi: The appellate court has a duty to review the evidence on record and provide clear findings. The judgment of the Principal Subordinate Judge was found to be inadequate and the appeal was directed to be restored and disposed of afresh.
Final Decision: The judgment of the Principal Subordinate Judge was set aside, and the judge was directed to restore the appeal and dispose of the same afresh. No order was made as to costs in either appeal.
1. These appeals are by the plaintiff and the 3rd defendant respectively, against an order of remand made by the Principal Subordinate Judge, Trivandrum.
2. The facts of the suit are thus: The piece of land bearing Survey No. 2034, Aramada Village, 2 acres 40 cents in extent, belonged in 1/3 share to Padmanabhan Padmanabhan, 1/3 to Mathevan Krishnan and Mathevan Padmanabhan and the remaining 1/3 to Ayyappan Arathan, Ayyappan Madan and Ayyappan Padmanabhan. The first named three persons instituted O. S. No. 544 of 1057 in the Additional Munsiff's Court, Trivandrum, against the latter three for separation of their 2/3 shares in the property. Ext. P18 is a copy of the decree and Ext. P17, a copy of the execution proceedings in that case. They show that the suit was decreed on 2112 1058 as prayed for, that the appeal and second appeal were dismissed with costs, that in execution a commission was issued on 6111070 to divide the property by metes and bounds and to deliver the decree-holders' 2/3 in specific plots and that the commissioner did so and submitted his plan of division, report of delivery and the delivery kychits in Court on 2121070 and the Court accepted the same and struck off the application for execution as been satisfied on 25121070. Ext. P1 is an attested copy of the plan dated 17 111070 prepared by the commissioner for the above purpose.
The heirs of Mathevan Padmanabhan assigned their share to Mathevan Krishnan as per Ext. P2 dated 18 101093; and the son of Mathevan Krishnan assigned all his interests to the plaintiff as per Ext. P4 dated 27 11117. Ext. P6 dated 20 81118 is the release of a prior mortgage and Ext. P7 dated 6 91118 the release of a prior lease of the property obtained by the plaintiff. The share of Padmanabhan Padmanabhan devolved on his two sons, one of whom assigned his share to the 4th defendant in 1119. The heirs of the other son of Padmanabhan Padmanabhan, the plaintiff and the 4th defendant entered into a partition evidenced by Ext. P8 dated 5 51122 as per which the plaint A schedule property was allocated to the plaintiff and the plaint B schedule property to the 4th defendant. On 25101956 while the plaintiff was away at his place of employment, defendants 1 to 3 trespassed on a portion of the plaint A and B schedule properties and put up a temporary shed thereon. The suit was instituted by the plaintiff on 5111956 for a declaration of his right to the plaint A schedule property and for removal of the trespass thereon by defendants 1 to 3.
The 3rd defendant contended that the suit O. S. No. 544 of 1057 did not concern the suit property or the owners thereof, that the entire Survey No. 2034 belonged to Ayyappan Arathan, that the same has been got assigned by himself and his brothers defendants 1 and 2 and that the plaintiff has no right in the plaint A schedule property.
The Munsiff rejected Ext. D8 which is a copy of the decree in O. S. No. 544 of 1057 of the Principal Munsiff's Court as different from Ext. P18 copy of the decree in O. S. No. 544 of 1057 of the Additional Munsiff's Court, held the contention that Ayyappan Arathan was the sole owner of the entire Survey No. 2034 barred by the decision of that very question in O. S. No. 1438 of 1119 against the present defendants
1 to 3 and their father and the title and possession of plaint A schedule property vested in the plaintiff and therefore decreed the suit in regard to the plaint A schedule property with costs. The 3rd defendant appealed to the Principal Subordinate Judge, Trivandrum, who set aside the decree and remanded the suit for fresh trial. Both the plaintiff and the 3rd defendant, being dissatisfied with the disposal of the appeal by the Subordinate Judge, pray in these Civil Miscellaneous Appeals to discharge the same and remit the appeal for fresh disposal according to law.
3. The Subordinate Judge framed the points for determination in the appeal thus: "The points for determination are:
(1) Whether there has been a pro
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