IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 SA.No. 714 of 1995(B) --------------------- AS.3/1991 of SUB COURT, PAYYANNUR OS.114/1988 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT: APPELLANT/DEFENDANT ---------------------------------------- KAITHAKAL CHANDI, S/O.MANI, AGED 60 YEARS, AGRICULTURIST, RESIDING AT VAYALAYI, PULIGOM AMSOM DESOM, KANNUR DISTRICT. BY ADV. SRI.V.RAJAGOPAL RESPONDENTS/RESPONDENTS/PLAINTIFF ---------------------------------------------- 1. JOHN NEDUMPALLI, S/O.SEBASTIAN, AGED 50 YEARS, VAYALAYI, PULINGOM AMSOM DESOM, KANNUR DISTRICT. 2. VALSAMMA JOHN, W/O.JOHN, NEDUMPALLI, VAYALAYI, PULLINGOM AMSOM DESOM KANNUR DISTRICT. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.B.JAYAPARAKASH B. FOR R1 & R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ORDER ON C.M.P.Nos.720/96, 721/96, 186/00,1170/96,1760/95 IN S.A.NO.714/95 7.4.08 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO. 714 OF 1995 =========================== Dated this the 7th day of April, 2008 JUDGMENT Defendant in O.S.114/1988 on the file of Munsiff Court, Payyannur is the appellant. Plaintiffs are the respondents. Respondents instituted the suit originally for injunction which was subsequently converted into recovery of possession. Plaint A schedule property consists of two items. First item having an extent of two acres and second item having an extent of 1 acre. Both are in R.S.No.90/1 of Vellora Village. It is admitted case that Chacko was the original owner of the property having an extent of 9 acres inclusive of plaint A and B schedule property as well as the property belonging to appellant. Under Ext.B1 sale deed dated 18.9.1962, Chacko assigned the property in favour of Kaithakkal Mani father of appellant. It is admitted case that under Ext.A1 sale deed dated 9.9.1975, Mani assigned 3 acres of land in S.A.714/1995 2 favour of first respondent John his wife second respondent Valsamma and Joseph. First respondent obtained 3/5 shares, second respondent his wife 1/5 share and Joseph the remaining 1/5 share. Under Ext.A2 release deed dated 5.5.1976, Joseph released his 1/5 share in favour of first respondent. Respondents are claiming right and title to plaint A schedule property under Exts.A1 and A2. The disputed portion of the plaint A schedule property is plaint B schedule property. Plaint B schedule property consists of two items. Item No.1 having an extent of 4 ½ cents and item No.2 having an extent of 6 ½ cents. Though under Ext.A1, 3 acres was assigned, the property assigned is not a compact block. It consists of two plots one on the east and the other on the west. In between is the property of assignor Mani. The disputed item No.1 of plaint B schedule property is marked in Ext.C1 plan as plot A1. item No.2 of plaint B schedule property is marked as plot B1. Respondents are claiming title to plot A1 and B1 S.A.714/1995 3 part of plot X and Y marked in Ext.C1 plan, on the strength of Ext.A1 and A2 title deeds. Case of the appellant is that plot A1 and B1 do not form part of the property assigned under Ext.A1 and it actually forms the remaining property retained by executant Mani under Ext.A1 and respondents have no title to the property. 2. Learned Munsiff based on the evidence of Pws.1 and 2, DW1, Exts.A1 to A9, Exts.B1 to B5, C1 and C2 found that plot A1 forms part of plot X, which is item No.1 of the property covered under Ext.A1 and therefore respondents have title to the disputed plot Ext.A1. Finding that plot B1 does not form part of 1 acre which is item No.2 of plaint B schedule property it was found that it does not form part of plot Y and respondents have no title to plot B1. Though appellants contended before the trial court that demarcation of the property by the Commissioner in Ext.C1 plan is not correct and survey stone P marked in Ext.C1 plan is not correct and it should be at point P1, S.A.714/1995 4 learned Munsiff on the evidence found that the survey stone could only be at point P as marked by the Commissioner in Ext.C1. Based on that report it was found that respondents have title to plot A1 and respondents are entitled to recover possession of that property. Claim for recovery of possession of plot B1 was rejected holding that respondents have no title to that property. Respondents did not challenge the denial of the claim for recovery of possession of plot B1 either by filing a regular appeal or by filing a Cross Objection in the appeal filed by the defendants. Appellant challenged the judgment before Sub Court,Payyannur in A.S.No.3/1991. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff that Commissioner has correctly demarcated the property and survey stone must be at point P and not at point P1 and item No.1 of Ext.A1 sale deed is inclusive of plot A1 and plot X and respondents have title to the disputed plot A1. The decree granted by the trial S.A.714/1995 5 court for recovery of possession of that plot was upheld. It is challenged in the appeal. 3. The appeal was admitted formulating the following substantial questions of law. 1. Whether in the facts and circumstances of the case findings of courts below on the identification of plaint schedule property are correct? 2. Whether in the facts and circumstances of the case courts below are correct in holding that the position of survey stone is at point P and not at point P1. 3. Whether in the facts ad circumstances of the case courts below are S.A.714/1995 6 correct in finding that plot A2 and B2 are not included in the property of plaintiff and those plots are included in river puramboke? 4. Whether in the facts and circumstances of the case courts below were correct to receive the Commissioner's plan and report C1 and C2, when the Commissioner admitted that he has not taken measurements from all neighbouring survey stones to fix the position of the survey stone at point P? 5. Whether on the facts and circumstances of the S.A.714/1995 7 case courts below were correct to find that plaintiff is entitled to recovery of possession of plot A1, when the property covered by the document by which plaintiff is claiming right is not properly identified. 4. Learned counsel appearing for appellant and respondents were heard. 5. Appellants have filed an application to receive photo copies of the report and plan submitted by the Commissioner in O.S.132/1991 as well as judgment in that suit and the notice issued by District Superintendent of Survey modifying the resurvey plan prepared by the Taluk Surveyor on 20.10.92. The documents sought to be produced under Rule 27 of Order 41 are not certified copies, but photo copies they cannot be S.A.714/1995 8 received and the petition was not numbered by the registry. 6. The facts are not disputed. Father of the appellant purchased the property under Ext.B1 sale deed. Under Ext.A1, out of the said 9 acres, three acres were assigned in favour of appellants and Joseph. Joseph under Ext.A2 released his right in favour of first respondent. As found by the courts below in his written statement appellant unambiguously admitted that respondents have obtained title to 3 acres of land in R.S.No.90/1 under Ext.A1. Ext.A1 shows that the said 3 acres consist of 2 plots one eastern plot having an extent of 1 acre and western plot having an extent of 2 acres. Plot X and Y, as demarcated in Ext.C1 plan is admittedly the property in the possession of respondents under Ext.A1. Though respondents claimed that plot B1 which lies to the west of plot Y and to the north of the property admittedly in the possession of appellant, is part of item No.2 of Ext.A1 sale deed, the claim was rejected by the S.A.714/1995 9 trial court and was not challenged by respondents thereafter. Therefore now the subsisting dispute is only with regard to plot A1. 7. Under Ext.A1 the extent of item No.1 is 2 acres. Plot X as demarcated by the Commissioner is having an extent of only 1.80 acres. Plot A2 which lies to the north of plot X and to the south of the northern river is having an extent of 9 ½ cents. Even if the case of appellant that plot A2 also forms part of the property covered under Ext.A1 is accepted, along with plot X the total extent could only be 1 acre 89 ½ cents whereas under Ext.A1 the total extent is 2 acres. Though appellant contended that plot A2 forms part of the property assigned under A1, as it lies to the south of the northern river which is shown as the northern boundary on item No.1 of the property covered under A1, it is not disputed that the survey boundary line of R.S.No.90/1 is to the south of plot A2. If that be so, when the property assigned under Ext.A1 is only in R.S.No.90/1, plot S.A.714/1995 10 A2 cannot be part of that property. What was argued by the learned counsel appearing for appellant was that the courts below should not have relied on Ext.C1 plan and should have found that the demarcation of plots in Ext.C1 plan is not correct. It was pointed out that as PW2 Commissioner deposed that he did not verify the position of the survey stones from the admitted remaining survey stones and therefore point P is not the place where the survey stone should be, but point P1 and if so Ext.C2 report and Ext.C1 plan submitted by the Commissioner should not have been accepted, it is seen from the records of the trial court that when the Commissioner submitted Ext.C2 report and C1 plan, only an objection to record was filed by the appellant. There was no prayer either to remit the report back to the Commissioner for proper identification or to correct any mistake or a petition to set aside the report on the basis that the property was not properly identified. On going through the objections raised by the S.A.714/1995 11 appellant it is clear that the location of survey stone “5”which lies to the west of point P and P1 seen in Ext.C1 was not disputed. Ext.A9 the survey plan shows that the eastern survey stone from plot 5 is at a distance of 380 links towards the east. If P1 is the point where the survey stone should be, as canvassed by the appellant, then Ext.C1 plan shows that instead of 380 links the distance is 381 links. So also from the eastern survey stone as marked by the Commissioner at point Q is further east. Though it was canvassed before the courts below that point Q was also not correctly fixed, courts below found that it was correctly fixed. From the point P the eastern survey stone should be at a distance of 227 links. Q is a distance of 227 links from point P. If as canvassed by appellant the survey stone is at P1 then the survey stone Q is not at a distance of 227 from point P1 but at a distance of 225 links. In such circumstance, case of the appellant that survey stone should be at P1 cannot be accepted. Courts S.A.714/1995 12 below on proper appreciation of evidence entered a factual finding that Commissioner has correctly located the property in Ext.C1 plan and plot A1 forms part of item No.1 of Ext.A1 sale deed and therefore respondents have title to that property. As respondents have title, they are entitled to the decree for recovery of possession granted by the courts below. I find no merit in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A..NO.714 /1995 --------------------- JUDGMENT 7TH APRIL,2008