IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 RSA.No. 563 of 2008(A) -------------------------------------- AS.113/1998 of SUB COURT, TIRUR OS.23/1996 of MUNSIFF COURT, TIRUR .................... APPELLANTS/APPELLANTS/DEFENDANTS: 1. MOHANAN, S/O.E.S.KUTTAN, KOTIYATTIL HOUSE, TIRUR AMSOM AND DESOM. 2. SUNITHA, W/O.MOHANAN, DO. DO. 3. K.P.SANKARAN NAIR, S/O.PARAMESWARAN NAIR OORAMATTATHI VEEDU, KUTTIPPURAM AMSOM, PERASSANUR DESOM, TIRUR TALUK. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT/RESPONDENT/PLAINTIFF: KISHOR KUMAR.M.V, S/O.VELU MASTER, BY MUKTHIAR AGENT, MEKKADATH VELU MASTER, S/O.AYYAPPAN, KATTIPARUTHI AMSOM, VALANCHERI DESOM, TIRUR TALUK. BY ADV. SRI.K.RAMACHANDRAN (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No.563 of 2008 --------------------------- JUDGMENT Defendants 1 to 3 in O.S.No.23/96 on the file of the Munsiff's Court, Tirur are the appellants. They assail in this appeal the concurrent verdicts passed against them by the courts below in favour of the respondent/plaintiff. 2. Respondent/plaintiff instituted O.S.No.23/96 aforesaid for recovery of plaint C schedule property on the strength of title alleging that plaint C schedule property is part of plaint B schedule property, which he has purchased under Exhibit A3 assignment deed, inter alia, on the following allegations: The plaint schedule property originally belonged to the third defendant as per Exhibit A1 assignment deed in his favour; that subsequent to Exhibit A1, the third defendant purchased the jenm right also in 1976; that thereafter the third defendant assigned plaint B schedule property to RSA 563/08 2 his daughter Saradamani and her husband Govindan Nair in the year 1989 under Exhibit A2; that from out of the remaining property, he had gifted a portion to his son Aravindakshan and the balance property remained in his possession; that the plaintiff purchased plaint B schedule property from Saradamani and Govindan Nair as per Exhibit A3 assignment deed and ever thereafter he is in possession and enjoyment of the said property; that as the entire A schedule property, which takes in also the plaint B schedule property, was being managed by the third defendant for and on behalf of his children, only small ridges were made to separate plaint B schedule property from the remaining properties; that however, later, the third defendant and his son Aravindakshan assigned the property to defendants 1 and 2 and thus the entire plaint A schedule property is now in possession of the plaintiff and defendants 1 and 2; that when he attempted to demarcate his RSA 563/08 3 property, it was objected to by the defendants contending that the property has to be demarcated with reference to the measurements made mention of in the documents; that in the meanwhile, on 18.7.1993, defendants trespassed into a portion of plaint B schedule property, which is described as C schedule and reduced it to their possession; that it is learnt that in the documents executed by the third defendant and his son in favour of defendants 1 and 2, some inflated measurements are shown and that however, defendants 1 and 2 have no right over plaint C schedule property. Hence, the suit for recovery of plaint C schedule property on the strength of title with future mesne profits at the rate of Rs.400/- per annum. 3. Defendants 1 to 3 resisted the suit by filing a joint written statement contending that plaint C schedule property is an imaginary plot; that plaint A schedule property originally belonged to the third defendant; that southern portion RSA 563/08 4 thereof was assigned by him to his daughter and her husband in 1989, after setting apart a way also on the eastern side of the property; that there was fencing on the northern and eastern sides; that the said property was purchased by the plaintiff from the daughter and son-in-law of the third defendant; that it has got well defined boundaries on all sides; that the plaintiff purchased the property that lies within the well defined boundaries and the plaintiff is advancing claim in respect of the property possessed by defendants 1 and 2 on coming to know that there are some mistakes in the measurements made mention of in the documents; that the plaintiff had not measured the property when he purchased the same; that there was fence on the northern side when the property was assigned to the plaintiff; that the measurements shown in the plaint and B schedule are incorrect; that the defendants have never trespassed into plaint C schedule portion scheduled to the plaint nor have RSA 563/08 5 they reduced it to their possession; that the road had been widened after 1989 and a portion of the plaintiff's property has been annexed to the northern portion of the road; that the plaintiff has no cause of action and that the suit is to be dismissed. 4. On the above pleadings, the trial court raised necessary issues for trial and considering the rival claims also in the light of the evidence adduced at trial, which consisted of oral evidence of PW1 and DWs 1 and 2 as also CW1 and documentary evidence Exhibits A1 to A4, B1, B2, C1 and C2, decreed the suit in favour of the plaintiff. 5. Defendants 1 to 3 filed A.S.No.113/98 before the first appellate court assailing the decree so passed by the trial court and the first appellate court, however, dismissed the appeal concurring with the findings of the trial court. Hence this Regular Second Appeal by defendants 1 to 3. 6. It is vehemently contended before me by the RSA 563/08 6 learned counsel for the appellants that the courts below have gone by the extent covered by Exhibit A3; that the actual kole measurement made mention of therein was not there at site to be got measured out from plaint A schedule property; that there existed a fence on the northern side of plaint B schedule property; that what the plaintiff purchased is only the property to the south of the said fence and the plaintiff is advancing claim to a portion of the rest of the property on the northern side, which was retained by the third defendant, a portion of which was later transferred to his son and finally both of them have transferred the said property to defendants 1 and 2 and that the plaintiff has no right at all over plaint C schedule property, which is not part of plaint B schedule property. It is his further contention that when side measurements are made mention of in the title document, the plaintiff has to establish his title on the basis of the said RSA 563/08 7 measurements and if the property is less than the extent he cannot claim anything more. It is also contented that even if the measurements are not available to be taken as mentioned in the document, plaintiff cannot be given a decree as prayed for. 7. Exhibit A2 is the document, where under the third defendant has transferred plaint B schedule property to his daughter Saradamani. The description of the property in the said assignment deed shows that what was so assigned is twenty cents of property having measurements 12.25 koles as per six feet kole measurement from east to west and 19.50 koles as per six feet kole measurement from south to north, which corresponds to 22.42 x 35.69 metres, excluding a six feet width pathway on the eastern most portion from out of the eastern block of Puthenparamba Kudiyirippuparamba, included as Item No.2 in the partition deed No.1588/75 of Kuttippuram Sub Registry Office. The said partition deed is not produced by any of the parties. RSA 563/08 8 However, there is no dispute that the third defendant had in his possession the eastern block so as to enable him to execute Exhibit A2 assignment deed in favour of his daughter. The description in Exhibit A2 gives an impression that what has been assigned under Exhibit A2 by the third defendant to his daughter Saradamani is the entire eastern block, excluding the pathway let out on the eastern most portion of the property. The only indication to show that he retained in his possession at least some portion from out of the eastern block is the description of the northern boundary as property in his possession. What is the extent so retained in his possession is not there in evidence. It is this Exhibit A2 property that has been assigned to the plaintiff by Saradamani, the daughter of the third defendant under Exhibit A3. It is, in the meanwhile, that vide Exhibit A4, the third defendant assigns a portion of the northern property retained in his RSA 563/08 9 possession to his son Aravindakshan and assigns rest in favour of the first defendant under Exhibit B2. Under Exhibit B1, Aravindakshan, the son of the third defendant, also assigns to defendants 1 and 2 the portion assigned to him by the third defendant. 8. It is worthy to note that Exhibit A2 assignment deed in favour of Saradamani, the daughter of the third defendant, is earlier in point of time and whatever that is retained by the third defendant alone can be assigned by him thereafter. The question, therefore, is as to what is the property assigned by the third defendant to his daughter Saradamani under Exhibit A2. Exhibit A2 gives the side measurements in koles of six feet as also the measurements when converted into metres and the extent of the property as twenty cents. Learned counsel for the appellants has no case that the extent of the property will be less than twenty cents, if the property described in Exhibit A2 is measured out as per the given measurements from the RSA 563/08 10 eastern block, namely, plaint A schedule property. The contentions are made on the basis of the title deeds obtained by defendants 1 and 2 from the third defendant as also from his son Aravindakshan. It has to be borne in mind that whatever defendants 1 and 2 get under assignments obtained from the third defendant and his son Aravindakshan is only from what has been retained by the third defendant after execution of Exhibit A2 in favour of his daughter Saradamani - no matter that there may remain only a small strip of land on the northern side of plaint B schedule property. 9. The contention that is advanced by the learned counsel for the appellants on the basis of Exhibit C1 plan is that the measurement made mention of in Exhibit A2 cannot, but, be wrong as the east-west measurement made mention of in Exhibit A2 is less than the actual measurement of plaint A schedule property from east to west and if the measurement as mentioned in Exhibit A2 also is RSA 563/08 11 taken into account, taking in the entire length available from east to west from the northern most portion, the total extent will be more than twenty cents. In other words, his case is that if the measurement made mention of in Exhibit A2 is given predominance, there will be a small plot left on the western side and another plot on the northern side from out of plaint A schedule property and it is not nobody's case that a small plot is left out on the western side and the only balance has been assigned under Exhibit A2. It was in the above circumstance that the entire property, from out of plaint A schedule, from east to west, was measured out and the measurement so much as is required to measure out an extent of twenty cents alone was measured by the Commissioner towards north. 10. In the absence of a case for both sides that a small plot is left out also on the west of plaint A schedule property covered by Exhibit A2, the only manner in which the property assigned RSA 563/08 12 under Exhibit A2 can be measured out, is as has been done by the Commissioner, vide Exhibits C1 and C2. By no manner of interpretation, as urged by the counsel for the appellants, can it be taken that the extent assigned is less than twenty cents for the reason that even going by the side measurements, the extent is admitted to be twenty cents. In the circumstances, the findings of the courts below that plaint C schedule property is the portion trespassed upon by the defendants and that the plaintiff has title over plaint C schedule property, which is marked by the Commissioner in Exhibit C1 plan as ABCD plot, which alone has been allowed to be recovered from the possession of the defendants as per the decree concurrently passed by the courts below. Exhibits C1 and C2 are also directed to be appended to the decree, so that, there may not be any difficulty in working out the relief, demarcating the extent to be recovered from the possession of the defendants in execution of RSA 563/08 13 the decree. There is absolutely no merit in this Regular Second Appeal. There is also no question of law and much less, any substantial question of law to be decided by this Court in this Regular Second Appeal. In the circumstances, the Regular Second Appeal is dismissed in limine, refusing admission. 22nd July, 2008 (K.P.Balachandran, Judge) tkv