KOSHY DANIEL Vs. P.S.RAJAN, VADAKKETHALAKKAL

JUDGEMENT

(1.) This review petition is filed by the legal heir of the first respondent in A.S. No. 533 of 2002, seeking a review of the judgment delivered on 3.2.2011. The brief facts of the case are as follows: The first respondent herein instituted O.S. No. 500 of 1995 on the file of" the Court of the Subordinate Judge of Mavellikara joining the predecessor-in-interest of the review petitioner as the sole defendant. The relief sought in the suit was declaration of the plaintiff's title and possession over the plaint schedule property, fixation of the northern boundary of plaint schedule item No. 1, to permit the plaintiff to put up a compound wall on the northern boundary of plaint schedule item No. 1, recovery of possession of that portion of item No. 1 of the plaint schedule if any portion thereof is found to be in possession of the defendant and a permanent prohibitory injunction restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property.

(2.) The plaint schedule property consists of two items. Item No. 1 is a parcel of land of 2.01 acres in extent, consisting of 60 cents in Sy No. 27/8-B and 1.41 acres in Sy No. 27/8-C of Thazhakkara Village, Mavellikara Taluk, Alappuzha District. Item No. 2 is a parcel of land 35 cents in extent, situate in Sy No. 31/4-B of Thazhakkara Village, Mavellikara Taluk, Alappuzha District. It was contended that the said lands originally belonged to the plaintiff's great grandfather late Chandy Kathenar, that as per a Will executed by him on 4th Edavom 1087ME, registered as document No. 6/1087ME of SRO, Mavellikara, the plaint schedule property was set apart to the share of Idi Chandy, the plaintiff's paternal grandfather and that under the said will, the plaintiffs paternal grandfather was in possession and enjoyment of 2.36 acres of land more particularly described in the plaint schedule. It is stated that on the death of Idi Chandy, the plaint schedule property devolved on his sons P.A. Simon (the plaintiff's father who died in the year 1952) and P.A. Alexander (who died issue less in 1964). The plaint proceeds to state that P.A. Simon died in the year 1952 and Smt. Susamma Alexander, wife of late P.A. Alexander passed away in the year 1971, that the share of late P.A. Alexander in the plaint schedule property devolved on the sons of P.A. Simon, viz the plaintiff and P.A. Stephen. It was alleged that the plaintiff has obtained the share of P.A. Stephen who is residing in America ever since 1974 and that the plaintiff is constrained to institute the suit on account of the refusal of the defendant to give consent for the construction of a compound wall separating the plaint schedule property from the property belonging to the defendant, situated on the northern side of the plaint schedule property. The sole defendant resisted the suit by filing a written statement contending inter alia that the plaintiff has no right, title or interest over the plaint schedule property and that his right if any, is lost by adverse possession and limitation. He also disputed the identity and description of the plaint schedule property.

(3.) In the trial court, the plaintiff was examined as PW-I and the neighbouring land owner as PW-2. Exts. A1 and A2 were produced and marked on the side of the plaintiff. On the side of the defendant, DWs 1 to 4 were examined and Exs. B1 to B13 were produced and marked. The trial court on an analysis of the evidence oral and documentary available in the case held that the plaintiff has not proved title to or possession over the plaint scheduled property. The trial court also noticed that though the plaintiff claims title to the plaint scheduled property on the strength of a Will executed by his great grandfather not even a certified copy thereof is produced. The trial court also held that the identity of the plaint scheduled property with reference to the Will executed in the year 1087ME and the devolution of title exclusively in the plaintiff, have not been proved. The suit was accordingly dismissed by decree and judgment delivered on 21.3.2002. Aggrieved by the decree and judgment dismissing the suit, the plaintiff filed A.S. No. 533 of 2002 in this Court. While A.S. No. 533 of 2002 was pending, the appellant/plaintiff filed I.A. No. 1839 of 2010 to implead the second respondent in this review petition as the additional second respondent in the appeal on the allegation that the sole defendant had during the pendency of the appeal, transferred the suit property to her. Later, respondents 3, 4 and 5 in this review petition were impleaded as additional respondents 3, 4 and 5 in the appeal on the allegation that the additional second respondent has transferred portions of the suit property to them.