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2016 Supreme(Ker) 92

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANTONY DOMINIC & A. HARIPRASAD, JJ.
K.J. ABRAHAM & ORS. - APPELLANTS
Vs.
MRS. MARIAMMA ITTY & ORS. - RESPONDENTS
A.S.No.564 of 2001 & Cross Objection
Decided On : 26-05-2016

Advocates Appeared:
For the Appellant : SRI. G.S. REGHUNATH.
For the Respondent:SRI. T.P. VARGHESE, SRI. PHILIP T. VARGHESE, SRI. BECHU KURIAN THOMAS (SENIOR ADVOCATE), SRI. V.P.K. PANICKER, SMT. SREELEKHA PUTHALATH, SRI. ABRAHAM GEORGE JACOB, SRI. S. GOWTHAM.

Headnote:

Code of Civil Procedure, 1908 - Order XIV - Rule 1 - Petition - Failed to gather - Requisite materials - Fixing boundary - Commission for identification of the property - Held, the defendants would blame the plaintiffs for not pursuing the remedy for appointment of a commission - The Court is not impressed with that contention of the defendants - It is the bounden duty of the trial court to facilitate and afford an opportunity to the parties to gather proper evidence for effective final adjudication of the lis.

JUDGMENT :

Hariprasad, J.

This first appeal is filed by the plaintiffs in a suit for multifarious reliefs. The trial court disallowed major part of the reliefs claimed; hence they are in appeal. For brevity and clarity, the parties are hereinafter referred to as the plaintiffs and defendants. Before marshalling the facts, it will be profitable, for the ultimate analysis of the case, to take note of the reliefs sought in the plaint:

"(A) Declaring that the sale deed No.868 of 1978, the agreement No.3904 of 1979 and document No.3321/1980 of the Additional Sub Registrar's Office, Kottayam, are false and fraudulent documents created by the defendants without any authority and that they are not binding on the plaintiffs and the plaint properties, or, in the alternative cancelling the said documents; and declaring plaintiffs' title and possession over B schedule;

(B) Putting up and demarcating the eastern boundary of plaint B schedule property and the building portion therein; after recovery of the same if the same is found in the possession of defendants;

(C) Directing defendants 3 and 5 to settle the accounts with the plaintiffs and allowing the plaintiffs to recover from those defendants and charged on plaint C schedule property a sum of Rs.50,000/- (Rupees Fifty thousand only) or such other sum found due to the plaintiffs;

(D) Allowing the costs of the suit from the defendants and their assets;

(E) Allowing such other reliefs as are found necessary in the nature of the suit."

2. Trial court decreed the suit in part, allowing rendition of accounts against the legal representatives of deceased 3rd defendant. Although, title to the plaintiffs over a portion of the land was declared by the court below, the plaintiffs are aggrieved that the court below committed a grave error in not considering the genuineness and binding effect of the documents challenged by them. In spite of getting a decree for fixation of boundary, the plaintiffs are dissatisfied as the relief allowed did not conform to their demand. Plaintiffs' claim to set aside Exts.A2, A4 and A5 has been disallowed.

3. Now, we shall deal with the relevant facts: 1st defendant is the wife of 3rd defendant. 3rd defendant subsequently died. His legal heirs are on the party array. 2nd defendant is the son and defendants 6 and 7 are the daughters of defendants 1 and 3. 4th defendant is the brother's daughter's husband of the 1st defendant. 5th defendant is the mother's sister's daughter's son of the 3rd defendant. An extent of 9.728 cents of land in survey No.18/3 of Vijayapuram Village was owned and possessed by the 8th defendant. Plaintiffs and defendants 1 and 2, as per Ext.A1 sale deed, purchased the property from 8th defendant on 23.06.1975. That property is described in plaint A schedule.

4. By virtue of the said sale deed, 1st plaintiff obtained right over 2.049 cents on the northern side of the western 4.549 cents described in Ext.A1 sale deed. 2nd plaintiff obtained 2.5 cents on the southern side of the 1st plaintiff's property. They obtained an undivided half right over the eastern 630 sq. links. Total 4.549 cents owned by plaintiffs 1 and 2 is shown in B schedule to the plaint. Remaining extent of 4.549 cents on the eastern side of the plaintiffs' property is owned by defendants 1 and 2 and that is scheduled as C schedule to the plaint. They also have a co- ownership right in respect of 630 sq. links shown as D schedule in the plaint.

5. 3rd defendant is the first cousin of the 1st plaintiff. Due to the close relationship, trust and confidence reposed by the plaintiffs on defendants 1 to 3, all of them together decided to construct a building in the entire property. 1st plaintiff was employed in Dubai for more than 25 years. In those circumstances, defendants 1 to 3 agreed to construct a building in the joint names of the plaintiffs and defendants 1 and 2, who are the owners































































































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