The defendants are in appeal. 2. The respondent approached the trial court with the original suit alleging that plaint 'A' and 'B' schedule properties originally belonged to one Sankaran Nair of whom, the plaintiff, defendants 1 and 2 as well as one Sivadasan Nair, Sobhana Amma and Mallika Amma are the children and after the death of Sankaran Nair, the rights devolved upon the above mentioned persons and Devaki Amma, the widow of Sankaran Nair.
3. The respondent further alleged that Devaki Amma, Sobhana Amma and Mallika Amma released their rights in favour of the respondent and thus, she is entitled to 4/7th share. She further alleged that the property was partitioned among the plaintiff, defendants 1 and 2 and Sivadasan Nair, as per partition deed executed on 19.03.1993 and item no.3 in the partition deed was set apart as the share of the plaintiff and the property was included as 'A' schedule in the plaint.
4. The plaintiff filed the suit alleging that the defendants had trespassed upon the pathway on the southern side of plaint 'A' schedule property and that there was attempt to demolish the wall on the southern side of the plaint schedule property.
5. The appellants, who resisted the suit, contended that the partition deed was happened to be executed on the representation made by the husband of the plaintiff that he had accurately measured the property and had shown the correct measurement in the document. Neither the defendants nor Sivadasan Nair had any occasion to inspect the measurements shown in the partition deed and after registration, the partition deed was kept by the husband of the plaintiff. The partition deed was shown to the defendants only after six months. On examination, it was found that the measurement and extent of the property set apart to the share of the 2nd defendant were not correct and that such measurements were fraudulently included in the partition deed. Therefore, defendants 1 and 2 expressed their protest.
6. Mediation talk was followed. One Surendran, K. Govindan Nair and one K. K. Madhavan the Mediators. The property was measured and found that the details shown regarding the property set apart to the 2nd defendant were incorrect. Therefore, the boundary between the share of the 2nd defendant and the plaintiff was re-fixed through mediators and it was accepted by both sides. On the basis of the same, a wall was constructed by the plaintiff and the 2nd defendant on the boundary fixed by the mediators. The property lying on the western side of the wall is the property set apart to the share of the 2nd defendant. There was a way having a width of 4 feet set apart in the partition deed to have access to the property of defendants 1 and 2. The width of the way was fraudulently shown as three feet by the plaintiff and her husband. This way was also excluded in the mediation, as there is access to the property of the plaintiff directly from the road on the eastern side. Therefore, the defendants maintained the stand that the averment, that the entire property shown as item no.3 in the partition deed was alloted to the plaintiff, is incorrect. The wall, at present, was constructed in accordance with the decision taken in the mediation. Therefore, they prayed for a dismissal of the suit.
7. The trial court after raising proper issues for trial, permitted both sides to adduce evidence. At the trial, PW.1 and DWs.1 to 4 were examined and Exts.A1 to A4, B1 to B3, C1 series, C2 series and C3 were marked. The trial court after considering the evidence, decreed the suit allowing recovery of possession of plaint B schedule property from defendants 2 and 3. A decree of prohibitory injunction was also granted restraining the defendants from trespassing upon plaint 'A' schedule property excluding 'B' schedule property and also from making any further improvements therein.
8. The appellants took the matter in appeal before the lower Appellate Court. The Subordinate Judge's Court, Kozhikode, who heard the appeal, confirmed the decree and dismissed the appeal. It is with this background, the appellants have come up before this Court.
9. I have heard the learned counsel for the appellants and the learned counsel for the respondent.
10. The learned counsel for the appellants would argue that the circumstances under which defendants 2 and 3 came in possession of the disputed portion of the property were clearly brought out by them before the trial court. It was argued that the courts below failed to note that the appellants were having definite pleading leading to mediation and the circumstances relating to the preparation of Ext.B3 sketch.
11. Both the courts below on appreciation of evidence found that there is no reliable evidence to show that the plaintiff had accepted or approved any decision taken for re-allotment of the property or re-fixation of the boundaries of the property alloted as per Ext.A3 document. This definite finding on a clear question of fact, cannot be re-agitated in a second appeal.
12. The case put forward by the appellants is that Ext.A3 partition deed does not express real intention of the parties. That being the case, the proper course open to the appellants was to approach a competent forum for rectification of instrument under Section 26 of the Specific Relief Act, 1963.
13. Though it was strenuously argued by the learned counsel for the appellants that the court at any stage of the proceeding can allow the party, who proves the unsustainability of the transaction to amend his pleadings, it is crucial to note that the appellants have not chosen to amend the pleadings by incorporating the prayer for rectification of the instrument, either before the trial court or before the lower Appellate Court. Therefore, this Court is of the definite view that the scope for interference by this Court in this second appeal is little.
In the result, the appeal fails and accordingly, it is dismissed. No costs.
krj Sd/- A.V.RAMAKRISHNA PILLAI JUDGE