IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 SA.No. 259 of 1996(E) --------------------- AS.10/1993 of SUB COURT, QUILANDY OS.233/1987 of MUNSIFF COURT, QUILANDY .................... APPELLANT(S)/RESPONDENT/PLAINTIFF: -------------- PUTHIYEDATH VAZHOTH DHAKSHAYANI AMMA, THAZHATHVEETIL, D/O.AMMUKUTTY AMMA, SIVAPURAM AMSOM AND KARUMALA DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA SMT.K.A.MAYA RESPONDENT(S)/APPELLANT/DEFENDANT: --------------- (*)PUTHIYADATH VAZHOTH BALAN NAIR, ADDIPOTTANMAKKOOL, S/O.AMMUKUTTY AMMA, KOTTOOR AMSOM AND DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT. (DIED . LRS IMPLEADED) ADDL.RESPONDENTS: 2. KIZHAKEPOYIL AMMUKUTTY AMMA, M/O.PUTHIYADATH VAZHOTH BALAN NAIR, AVIDANELOOR AMSOM, AVIDANELOOR P.O., KUTTALIDA, NADUVANNUR (VIA). 3. KIZHAKEPOYIL KAMALAKSHY AMMA, W/O.PUTHIYADATH VAZHOTH BALAN NAIR, AVIDANELOOR AMSOM, AVIDANELOOR P.O., KUTTALIDA, NADUVANNUR (VIA). 4. KIZHAKEPOYIL SHARMILA, D/O.PUTHIYADATH VAZHOTH BALAN NAIR, AVIDANELOOR AMSOM, AVIDANELOOR P.O., KUTTALIDA, NADUVANNUR (VIA). 5. KIZHAKEPOYIL SHYNILA, D/O.PUTHIYADATH VAZHOTH BALAN NAIR, AVIDANELOOR AMSOM, AVIDANELOOR P.O., KUTTALIDA, NADUVANNUR (VIA). SA NO.259/1996 2 6. RAHUL, S/O.PUTHIYADATH VAZHOTH BALAN NAIR, AVIDANELOOR AMSOM, AVIDANELOOR P.O., KUTTALIDA, NADUVANNUR (VIA). (*)ADDL.RESPONDENTS 2 TO 6 ARE IMPLEADED AS LRS OF DECEASED SOLE RESPONDENT AS PER ORDER DATED 25.2.2009 ON IA NO.2156/2001. ADV. SRI.P.K.SURESH KUMAR FOR ADDL.R2 TO 5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.259 of 1996 -------------------------------------- Dated this the 13th day of January, 2010. JUDGMENT Substantial questions of law framed for a decision in this Second Appeal are: i. When there is a discrepancy between measurements and area shown in the documents are not the measurements which would prevail? ii. Was the lower appellate court right in presuming that the east-west measurements will have to be more for making up deficiency in north-south measurements and interfering with the judgment and decree of the trial court? These substantial questions of law arise in the Second Appeal filed against judgment and decree of learned Sub Judge, Quilandy in A.S.No.10 of 1993 dismissing the suit for decree for injunction or in the alternative for recovery of possession on the strength of title reversing judgment and decree of learned Munsiff, Quilandy in O.S.No.233 of 1987. 2. Short facts necessary for a decision of the above questions are: Appellant, respondent and others got their respective properties as per Ext.A1, settlement deed dated 5.2.1968. For the sake of convenience, I will refer to Ext.C5, plan prepared by the advocate commissioner. Item No.1 of Ext.A1 is plot SA No.259/1996 2 C marked in Ext.C5 allotted to the share of one Janu Amma. Measurement of that property referred to in Ext.A1 is 48 x 60 for 6 feet kole. Item No.2 of Ext.A1 is plot B in Ext.C5 allotted to the share of appellant/plaintiff (plaint A schedule) measurement of which as per Ext.A1 is 48 x 56 for 6 feet kole. Item No.3 of Ext.A1 is plot A in Ext.C5, allotted to the share of respondent/defendant. In Ext.A1, measurement of that item is given as 24 x 56 for 6 feet kole. Plot No.5 in Ext.C5 (shown to be in the possession of Sankaran Nair) was allotted to the appellant/plaintiff. Case of the appellant/plaintiff is that respondent is attempting to trespass into a portion of plaint A schedule (item No.2 in Ext.A1 and plot A1 in Ext.C5). That portion is described in plaint B schedule. Alternatively appellant claimed that in case it is found that respondent is in possession of plaint B schedule (marked as plot A1 in Ext.C5) appellant may be allowed to recover possession of that item on the strength of title. Respondent resisted the suit contending that appellant has no right, title or possession of plaint B schedule ( plot A1 in Ext.C5) and that it formed part of item No.3 in Ext.A1 (plot A in Ext.C5) allotted to the share of respondent. A plea of adverse possession and limitation was also raised. Learned Munsiff found that plot A1 in Ext.C5 formed part of plot B (item No.2 of Ext.A1) allotted to the share of appellant, held that the plea of adverse possession and limitation are not established and granted decree for recovery of possession in favour of the appellant. Appellate court found that there is discrepancy regarding the north-south measurement of the SA No.259/1996 3 disputed items. Janu Amma to whom item No.1 of Ext.A1 (plot C in Ext.C5) was allotted though entitled only for 2.40 acres (48 x 60 for 6 feet kole) is actually in possession of about three (3) acres which is beyond her entitlement but she has not been impleaded. Property admittedly belonging to the appellant (plaint A schedule which is plot B in Ext.C5) is situated on the immediate west of the property of Janu Amma but appellant has no claim against Janu Amma. To the first appellate court it appeared that suit is filed by the appellant in collusion with Janu Amma. Observing so, suit was dismissed holding that appellant did not succeed in proving title over plot A1 in Ext.C5. That is under challenge in the Second Appeal on the substantial questions of law framed above. It is contended by learned counsel for appellant that boundaries as well as the extent proved by Ext.C5 tallied with the claim of appellant over plot A1 in Ext.C5 as rightly found by the learned Munsiff and hence first appellate court was not justified in reversing judgment and decree of the trial court. Learned counsel for respondent contended that only item Nos.1 to 3 in Ext.A1 have been measured by the advocate commissioner, plot No.5 in Ext.C5 (shown to be in the possession of Sankaran Nair) has not been measured and without measuring the said item also and impleading Janu Amma as a party to the suit trial court was not justified in concluding merely for the reason that respondent is in possession of excess land that plot A1 in Ext.C5 formed part of the property of the appellant. SA No.259/1996 4 3. So far as the first substantial question of law framed for a decision is concerned, it is settled by the various authorities of this Court that there is no hard and fast rule as to which one should prevail over the other when there is a conflict between survey number, extent, measurement and boundaries and that the matter involved a construction of the document in question. On the given facts of a case it may be description by boundary that may prevail in that case while in another case it may be the measurement or extent or even survey number that may prevail. There is no straight jacket formula in that regard. 4. In this case, the two grounds upon which trial court found in favour of appellant are measurement of the properties and the southern boundary description of the property admittedly belonging to the appellant and plaint B schedule. It is seen from Ext.A1 that item No.1 allotted to Janu Amma (plot C in Ext.C5) has measurement of 48 x 60 for 6 feet kole as per Ext.A1 (2.40 acres) but Exts.C5 to C7 show that she is in possession of around three (3) acres. Property belonging to the appellant, respondent and the disputed property lie on the west of the said item. Though entitlement of the appellant (item No.2 in Ext.A1) is for 48 x 56 for 6 feet kole, ie. 2.24 acres, Exts.C5 to C7 show that plot B marked in Ext.C5 has only a measurement of 48 x 54 ¾ for 6 feet kole which is 2.16 acres meaning thereby that property in the admitted possession of the appellant is less than her entitlement as per Ext.A1. Coming to the SA No.259/1996 5 property belonging to the respondent as per Ext.A1, item No.3 (plot A in Ext.C5) is 24 x 56 for 6 feet kole which should be 1.12 acres. But on measurement it was found to be 24 x 43 ¾ for 6 feet kole ( which is 85 cents) as against the 1.12 acres which the respondent is otherwise entitled as per Ext.A1. According to the respondent plot A1 in Ext.C5 also formed part of item No.3 in Ext.A1 allotted to him. Plot A is found to be 35 cents. If that 35 cents is added with the 85 cents which the respondent now has, the total extent would be 1.20 acres, ie. 8 cents more than the 1.12 acres which respondent is entitled as per Ext.A1. If that eight (8) cents is added to plot B which is admittedly in the possession of appellant, extent allotted to the appellant and respondent as per Ext.A1 would be correct and tallying with the extent in Ext.A1. That is one reason which persuaded the trial court to found in favour of the appellant. Yet another reason is that going by Ext.A1 the northern boundary of plot B in Ext.C5 and plot A1 which according to the trial court should also go to the appellant is item No.5 whereas if plot A1 in Ext.A1 is tacked on with plot A admittedly belonging to the respondent, there will be discrepancy in the northern boundary. But I find that this being a suit for injunction and in alternative for recovery of possession on the strength of title all parties concerned with the issue and referred to in Ext.A1 should have been impleaded in the suit and particularly since it is shown that Janu Amma is in possession of more extent than to which she is entitled as per Ext.A1. It is not disputed that plot 5 in Ext.C5 shown to be SA No.259/1996 6 in the possession of Sankaran Nair is admittedly situated on the north of plot B is also not measured. Learned counsel for respondent has invited my attention to Ext.C7, report of the advocate commissioner and particularly paragraph No.3 onwards where it is stated that there was no physical boundary in between plots A, A1, B and C referred to in Ext.C5 and that boundaries shown in Ext.C5 are as shown by the parties. In the circumstances and particularly that learned Munsiff was also granting a decree for recovery of possession on the strength of title, all necessary parties should have been on the party array and all relevant properties involved had to be measured before entering a finding in respect of title. That is because title cannot be decided on surmises and conjunctures. First appellate court has not referred to these aspects of the matter but, was carried away the impression that since Janu Amma is in possession of more extent than her entitlement, she is not made a party and the suit appeared to be the result of collusion between her and the appellant. In the facts and circumstances of the case I think it proper and necessary to send back the case for fresh decision after giving the parties opportunity to amend their pleadings if they are so advised incorporating appropriate facts and reliefs and impleading all necessary parties in the suit. I make it clear that it will be open to the parties to request the trial court to remit Exts.C5 to C7 to the same advocate commissioner if he is available and it is convenient to appoint him as commissioner and if not, by deputing another advocate for the purpose. SA No.259/1996 7 Resultantly, judgment and decree of the courts below are set aside and the case is remitted to the trial court for fresh decision in the light of the observations made above. I make it clear that it will be open to the parties to adduce further evidence if any, if they are so advised. Trial court shall dispose of the case untrammelled by any of the observations or finding contained in the judgments under challenge. Parties shall appear in the trial court on 25.2.1010. Registry shall send the records to the trial court forthwith. THOMAS P.JOSEPH, Judge. cks SA No.259/1996 8 Thomas P.Joseph, J. S.A.No.259 of 1996 JUDGMENT 13th January, 2010