The property in dispute belongs to one Kunjan. Kumaran is a close relative of Kunjan and was very close to the family and treated as member of Kunjan's family till the dispute arose in 1986. Kunjan executed a deed of settlement settling his properties including the disputed property on his daughters. One of the daughters Sumathi was minor to whom the C Schedule to the Ext.B1 was allotted. The owner kept the D Schedule items which is the disputed property to himself.
The property settled on Sumathi of which possession continued to be with Kunjan in terms of Ext.B1. In 1976 Kumaran executed Ext.A1 and some properties were transferred to the Kumaran. The property settled on Sumathi of which possession continued to be with Kunjan in terms of Ext.B1. In 1976 Kumaran executed Ext.A1 and some properties were transferred to the Kumaran. It is clearly recited in the document that only property covered by C Schedule to Ext.B1 which was allotted to Sumathi was the subject of transfer. This had an extent of 1.51 acres. The D Schedule property was not included in Ext.A1. By fraudulently and with the connivance of the schedule to the document was also drafted as to bring the property owned and possessed by Kunjan under D Schedule to Ext.B1 as also 56 cents of lands not covered thereby. Despite this mistake described in the document, Kunjan continued to be in possession of the disputed property and its accredition while Kumaran was also closely moving with the family and there was no action from Kunjan.
Kunjan sold the 50 cents covered by the D Schedule Ext.B1 as also the accredition to the appellant by the deed of sale Ext.B4 on 5.3.1986. Kumaran was displeased at the development and he filed a suit for a permanent injunction restraining them from entering into the disputed property. Kunjan became aware of the mistake in Schedule Ext.A1 only when notice of this suit was received where upon himself and the appellant filed a suit for injunction against the interference with his possession of the 50 cents of disputed property.
Kunjan pleaded that the transfer to Kumaran was only 1.51 acre and that the disputed property was not comprised or intended to be transferred or to be in possession of the vendee. They pleaded that fraud was played by Pankajakshy and her husband in the incorrect preparation of the Schedule to the document.
The District Court held that what was intended to be transferred was only the 1.5 acres comprised in C Schedule to Ext.B1 and that the D Schedule property was not conveyed under Ext.B1. Kumaran did not have title of the possession either over the Schedule or the accredition of 56 cents which lies in between the C & D Schedules properties. Kumaran challenged appeals before the High Court filed. Pending suit Kunjan died.
The judgment passed by the High Court cannot be sustained for the reasons stated supra. The judgment was passed by the High Court and restores the judgment passed by the District Judge, Thodupuzha in his file. However, we delete the directions given by the District Court in regard to the order of remand and retain and sustain the judgment of the District Court in toto. The appeal filed by the appellant succeeds.
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