Abandonment of a recovery of possession claim due to land acquisition does not bar the entitlement to seek a declaration of title under the Specific Relief Act.

JUDGMENT :

EASWARAN S., J.

The present appeal is preferred by the appellants who are defendant Nos.1 to 6, aggrieved by the concurrent findings in O.S. No.359 of 2013 on the files of the Principal Sub Court Kozhikode and in A.S. No.54 of 2015 on the files of the 2^nd Additional District Court, Kozhikode.

2. The brief facts necessary for the disposal of the appeal are as follows:

The suit was instituted by the plaintiff (1^st respondent herein) for recovery of possession of the plaint schedule property on the strength of title and declaration. As per the averments in the plaint, the plaint schedule property forms part of item No.5 in the partition deed No.1916/1950 of Chevayur Sub Registry. The plaint schedule property consists of 52 cents as shown in the partition deed No.1916/1950 and Re-survey No.110 of Kovoor village. The property was originally in the joint possession of one Kelu, Raman and Samikkutty. They partitioned the property as per Ext.A1 partition deed under which, item Nos.1 and 2 was allotted to Sri. Kelu, item No.3 is allotted to Sri. Raman and item Nos.4 and 5 are allotted to Sri.Samikutty. The plaintiff purchased the property consisting of item No.4 and 5 of the partition deed from Sri. Samikutty in 1968. The appellants obtained their title from one Chandran, who purchased the property from Sri. Kelu. Item Nos.1 and 2 property in Ext.A1 consists of one (1) Acre and Seventy Three (73) cents and one (1) Acre and Thirteen (13) cents. The appellants contended that they purchased the other properties also in the year 1968. Later, a portion of the property was assigned by Sri. Chandran to the plaintiff’s wife, one Prema Vijayan who sold the property to Sri. Muhammed. During the pendency of the suit, the land in question was acquired by the Special Tahsildar, (LA) for establishing a Cyber Park at the instance of the Kerala State Infrastructure Limited. An advocate commissioner was appointed for inspection and measurement of the plaint schedule property, and it was found that the lie of the plaint schedule property was different, and accordingly, the plaintiff amended the suit seeking for rectification of the schedule contained in the partition deed. According to the plaintiff, the mistake had occurred in the description of the boundaries of the title deed of the plaintiff and the title deed of Sri. Chandran itself was a continuation of the mistake which happened while drafting the partition deed. The properties in Kovoor Amsom were on the northern side and thus in the Iringallur Amsom were on the southern side but in the partition deed, item No.2 was shown as situated on the east of item No.1. Likewise, item No.5 was wrongly shown as situated on the eastern side in item No.4. The defendants entered appearance and contested the suit by contending that the suit was barred by limitation. It is further contended that the plaintiff had no other property left with him after he had transferred the properties in favour of Sri. Muhammed as per Ext.A19. The other contentions were also raised. By the time the suit was taken up for trial, the property was acquired under the provisions of the Land Acquisition Act, 1894, and hence the plaintiff had given up the relief in the form of recovery of possession and pressed for the relief for declaration of title, since the consequence of which would entitle him to claim the amounts in deposit. On behalf of the plaintiff, Exts.A1 to A32 documents were produced, and PW1 and PW2 were examined, and, on behalf of the defendants, Exts.B1 to B18 were produced. Exts.C1 and C6 are the reports of the advocate commissioner and plan. The trial court, on the basis of the oral and documenta