IMPORTANT POINT
Material irregularity noticed in procedure cannot be ignored.

K. Vinod Chandran, J.—Seemingly black and white case, rendered complex by a confounding decree passed in a suit for recovery of possession. The suit for recovery of property was decreed without identifying the plaint schedule property. The trial Court noticed that the plaintiff had not taken out a Commission, but still grunted the prayer for recovery with a rider that the execution Court will identify the property and recovery will be effected only to the extent the plaint schedule property is found in the hands of the defendants The decree was not to be taken as granting recovery of possession of the properties in the possession of the defendants; but only to the extent; it is identified as in their possession. .

2. One Kaliani sued for recovery of possession of 25 cents of Njal Nilam ‘in’ Survey No.1027 of Thrissur Village. The contention of the plaintiff was that she obtained the said lands from one Bhaskaran Assari, who purchased it from one Kuttan Mannadiar, Kuttan Mannadiar obtained the said land from one Sankaran. Sankaran, alongwith one Pappu, had taken on lease certain paddy fields as also 535/8 cents of Njal Nilam from Kuruppath family, who had jenm over the property. Sankaran and Pappu were said to have held one-half share each of the Njal Nilam with Pappu holding the one-half extent to the north and Sankaran the other half to the south. The 1st defendant was one Chennan, whose mother-in-law had a homestead to the north of the Njal Nilam having an extent of 535/8 cents

3. The 1st defendant, denied the lease in favour of Pappu and Sankaran and claimed lease of a total of 35 cents, which comprised a homestead having 10 cents, in favour of his mother-in-law and through her, claimed possession. The second defendant filed a written statement with a schedule of the property in his possession and contended that the plaint schedule property was not in his possession. Essentially he claimed possession of the lands held originally by Pappu and the plaint schedule property, being that originally held by Sankaran, was claimed to be in the hands of a third party.

4. On the basis of the contention raised by the 2nd defendant, the plaint was amended. A reading of the plaint would indicate that the

535/8 cents of Njal Nilam stood south of the homestead belonging to the mother-in-law of Chennan. The northern half was the one leased out to Pappu, which the 2nd defendant possessed, and the southern half leased out to Sankaran was the plaint schedule property purchased by the plaintiff. The title of the plaintiff was found as per the various deeds. The oral lease claimed by the 1st defendant from the Kuruppath family was found to be false. The second defendant contended having obtained an assignment of 35 cents out of the 50 cents, out of which he had assigned back 10 cents to the 1st defendant. His specific case was that the 25 cents marked as the plaint schedule was lying south of the property in his possession and was in the possession of the owner of a Mill. Since the plaintiff had not taken out a commission for identification of the plaint schedule property, the actual possession was held to be unascertainable and the liability for mesne profits was held to be proportionate, depending on the extent of possession of either the 1st defendant or the 2nd defendant.

5. Without identification of the property scheduled in the plaint, the plaintiff was granted the decree for recovery from the defendants by judgment dated 06.12.1967. Subsequently, an application, IA.No.2118 of 1971, was filed by the 2nd defendant, in which the decree was clarified by the Court that; the possession of the plaint schedule property in the hands of either of the defendants has to be ascertained by the execution Court and recovery effected only to the extent found by the execution Court, to be in such possession of defendants 1 and 2. This strange procedure has resulted in the execution Court attempting to identify the plaint schedule property for the fi