The court established that valid gift documents empower the donee to reclaim property, subject to natural circumstances affecting property boundaries.

J U D G M E N T

This appeal is preferred against the judgment and decree passed by the 1st Addl. Subordinate Judge, Thrissur in O.S.636/87. The suit is one for recovery of possession of the property on the strength of title. By virtue of Exts.A1 and A2 documents the plaintiff had been gifted two acres of land by the father and the father and son are continuously fighting and are knocking at the doors of justice for almost 25 years. But after hearing the learned counsel for both the sides the matter still cannot attain a finality. The brief facts are, by virtue of two documents, Exts.A1 and A2 of the year 1972, father had gifted 3 items of property, i.e. one acre one cent in Re.Sy.No.109/2, 10 cents in 109/4 and 89 cents in 109/2 totaling 2 acres.

2. The borne of contention to start with was that Exts.A1 and A2 are not documents which had confirmed title on the son, plaintiff but now by virtue of a ruling of a Division Bench of this Court it has attained finality holding that Exts.A1 and A2 are valid documents. This Court by way of remand directed the property to be identified for granting the relief of recovery of possession. It is a very difficult case. Several portions of the property had been taken away by the sea which is situated on the western side. A perusal of the Commissioner's plan and report would show that the portion marked as item No.1 is 10 cents which forms item No.1 of Ext.A2. Item No.3 of the Commissioner's plan is covered by Ext.A1. Item No.2 in the Commissioner's plan is the property described as item No.2 in Ext.A2. The plan itself would show that if the properties are measured in accordance with the measurement in the document more than 20 mtrs. of item No.2 and 3 are inside the sea. It is also stated that Sy.No. 109/1 is totally in the sea. But a perusal of this plan, C2(a) would show that the Commissioner has not marked the area according to the measurement taken away by the sea. If the present plan is looked into it may appear that 89 cents and one acre one cent are available. It cannot be correct in the light of the Commissioner's report that 20 mtrs. are taken away by the sea. Similarly when there is a dispute regarding identification of the property it is to be borne in mind that the total property has to be first found out. Thereafter the properties gifted has to be marked so that one can find out which is the property that is gifted. Unfortunately defendant's father does not produce this title deed. It is seen from the documents Exts.A1 and A2 that he is claiming title over the property by virtue of a document of 1969. So unless one is able to find out that, it cannot be possible to really locate the property. In case the defendant is not prepared to cooperate for the same, then also there must be a solution for the litigation. In such cases what can be done is to find out the east-west measurement of the property after fixing the eastern line. Then take the east-west measurement and find out how much portion is taken away by the sea and mark the balance as the property available under the document, Exts.A1 and A2. When it is found out it can be safely stated that it is the property that the plaintiff is entitled to recover. Therefore the matter requires reconsideration at the hands of the trial Court. The father who has gifted the property to the son continues to enjoy the property and is merrily litigating for the 25 years. He must be asked to pay some amount to the son as mesne profits. The quantum, ultimately will depend upon the final result of the suit. By virtue of the finding of the this Court Exts.A1 and A2 are valid. Necessarily the plaintiff is entitled to some property. Now the only question is which is that property. I am informed that Rs.50,000/- has already been deposited. I direct the defendant in the case to remit Rs.30,000/- more and also permit the plaintiff to take that amount from the Court deposit on furnishing security.

Therefore the judgment and decree passed by the trial