IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 SA.No. 435 of 1996(B) --------------------- AS.51/1989 of SUB COURT, OTTAPPALAM OS.148/1985 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANT(S):- (Defendants 1 & 2 in the trial court/Respondents 1 & 2 in the lower ---------------------- appellate court). 1. SANTHAKUMARI AMMA, D/O.AYIKKARA DEVAKI AMMA, THRIKKANGODE AMSOM, MANISSERI DESOM, OTTAPALAM TALUK, PALGHAT DISTRICT. 2. KUMARAN NAIR, S/O.AYIKKARA GOVINDAN NAIR, DO. DO. BY ADV. SRI.R.RAJESH KORMATH SRI.C.RAMAN SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SMT.SANJANA R.NAIR SRI.JAYKAR.K.S. SRI.V.S.ROBIN RESPONDENT(S):-(Legal representatives of the plaintiff and 3rd defendant in the trial ----------------------- court/Appellants 2 & 6 and 3rd respondent in the lower appellate court). 1. RAMACHANDRAN, S/O.SANKARA PODUVAL, OORATH POTHUVATTIL, THRIKKANGODE AMSOM AND DESOM, P.O.MANISSERI, OTTAPALAM TALUK, PALGHAT DISTRICT. 2. SANKARANARAYANAN, S/O.DO. DO. 3. SUDHAKARAN, S/O. DO. DO. 4. SASIDHARAN, S/O. DO. DO. 5. SAKTHIDHARAN, S/O. DO. DO. (PTO) -: 2 :- 6. SANKARANARAYANAN NAIR, S/O.KARUTHEDATH MADHAVI AMMA, THRIKKANGODE AMSOM AND DESOM, P.O. MANISSERI, OTTAPALAM TALUK, PALGHAT DISTRICT. (The name of R6 is removed from the array of parties at the risk of the appellant as per order dtd.5.2.1997 on CMP.No.255/1997.) ADV. SRI.R.CHANDRASEKHARAN NAIR, SRI.AJITH R.KARTHA FOR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 435 of 1996(B) ORDER ON CMP.No.1001 OF 1996 IN SA.NO.435 OF 1996. DISMISSED. 5.8.2009. Sd/-P.S.GOPINATHAN, JUDGE. ( TRU COPY ) PA TO JUDGE. kvs/- P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = SA.No.435 of 1996. = = = == = = = = = = = = = = = = = = Dated this the 5th day of August, 2009. J U D G M EN T Defendants 1 & 2 in OS.No.148 of 1985 on the file of the Munsiff, Ottapalam are the appellants. Late Sankara Poduval instituted the above suit against the appellant herein and the 6th respondent who was the 3rd defendant, seeking a decree for recovery of possession of plaint B schedule property with a plea that plaint A schedule property was obtained by the deceased plaintiff as per Ext.A1 partition deed and that the defendants trespassed to the plaint B schedule property measuring six cents which is part and parcel of the plaint A schedule property. Appellants contended that the appellants disputed the title of the late plaintiff over the plaint A & B schedule properties and further contended that the disputed properties were belong to the appellants and the disputed properties which are part and parcel belong to the appellant and out of that 20 cents were assigned in favour of the 3rd defendant and that the late plaintiff had no manner of right over the same and even if the late plaintiff had any right that was lost by SA.No.435 of 1996. -: 2 :- adverse possession and limitation. The 3rd defendant in his separate written statement also denied the title of the late plaintiff over the plaint A schedule property and further contended that he purchased 20 cents of property from defendants 1 & 2 by virtue of Ext.B12 deed dated 11.4.1985 and thereafter he had been absolute possession and enjoyment of the said property and that there was no trespass and that the late plaintiff is not entitled to a decree for plaint A schedule properties. 2. After raising the issues, parties were sent for trial. On the side of the plaintiff one witness was examined as Pw1, Exts.A1 to A9 were marked. On the side of the defendants Dws.1 to 3 were examined, Exts.B1 to B12 were marked. Two plans submitted by the commissioner and two reports were marked as Exts.C1 to C4. 3. The trial court on appraisal of the evidence arrived a finding against the plaintiff. Consequently, the suit was dismissed. It appears that the plaintiff died thereafter. His legal heirs preferred an appeal as AS.51/1989 before the Subordinate Judge, Ottapalam. The lower appellate court on appraisal of the evidence arrived a finding that a triangular portion D1.C.Q1 form part of item No.1 of the plaint A schedule and the portion SA.No.435 of 1996. -: 3 :- F.G.Y.Y1.D1.D.E.F. in Ext.C2 plan forms part of the second item in plaint A schedule property and that the appellants there in who succeeded the original plaintiff have got original title and that the title of the appellants were not lost by adverse possession and limitation. Consequently, the appeal was allowed. The suit before the trial court was decreed after setting aside the impugned judgment and decree. Assailing the above judgment and decree this appeal was preferred. 4. The following are the substantial questions of law raised in the appeal memorandum: A. Was the court below justified in decreeing the suit based on survey demarcation alone, in total disregard of the boundaries, description and the difference in levels of the respective lands? B. Was the court below justified in not independently considering the plea of adverse possession and limitation raised by the appellants herein? C. Is not the judgment of the court below vitiated due to non-consideration of Exts.B2 to B11 and the evidence of DW2? D. Was the court below justified in passing a decree for recovery of possession of a portion of land when the plaint B schedule property was not identified properly by the Commissioner? SA.No.435 of 1996. -: 4 :- E. Is not the judgment of the court below vitiated due to non-advertence of the admissions made by PW1? 5. Having gone through the impugned judgment and Exts.C1 to C4, I find that the property was surveyed with the assistance of a qualified surveyor and the disputed property was identified. Though the appellants and the 6th respondent herein have advanced right and title over the disputed property, no attempt was made by the appellants or by the 3rd defendant to survey the property with reference to their documents also. In fact, there is no material on record to come to a conclusion that the disputed property is part and parcel of the property covered by Exts.B1 to B12. On the same time, the commissioner had identified the disputed property as part and parcel of Ext.A1 partition deed. Though the appellants had a contention that identifying the properties with reference to the survey demarcation is not correct. The learned counsel for the appellants could not bring out any material to show that there occurred any error in identifying the disputed property. It is true that if the description of the plaint schedule property in the plaint is red, the eastern boundaries of both items would be a kaithode, but a portion of the property now as identified by the commission is the SA.No.435 of 1996. -: 5 :- disputed property would not red at that boundary. That is not a reason to arrive a conclusion that the disputed property is not part of the property covered by Ext.A1. Originally the plaint schedule property was said to have been in Sy.No.191/1 and 41/7. When the property was measured by the commissioner it was disputed that a portion of the disputed property was also comprised in Sy.No.41/8. According to the commissioner, the remaining portion in the eastern side within the kaithode was belong to the defendants. However, having found that some portion in Sy.NO.41/8 would also come within the measurement of the 2nd tak. The commissioner reported that, that portion also part of the plaint A schedule property. Consequently, the plaint schedule was amended by including Sy.No.191/2 & 41/8 also. 6. Now, as per the impugned decree the portion marked as D1.Y1.Y2.Y4 in Exts.C2 plan which was found by the lower appellate court as part and parcel of plaint A schedule property comprised in Sy.No.41/8. Such a conclusion can be arrived only with reference to the measurements alone, it did not tally with the eastern boundary shown in the plaint schedule. It appears that the lower court decreed the suit on an assumption SA.No.435 of 1996. -: 6 :- that the defendants had not succeeded to establish their right and title over that portion to any suit for recovery of possession, the plaintiff can succeed only on proof title and possession over the disputed property. Ext.A1 is the latest document relied upon by the plaintiff. Exts.A6 and A7 were produced as if anterior. Documents Exts.A6 dated 20.3.1929, A7 dated 9.4.1933, A8 & A9 are dated 24.6.1972 and 6.6.1974 respectively were produced to show that the plaintiff had offered the disputed property as guarantee to Vaniyamkulam Service Co-operative Society. But going through Exts.A6, A7, A8 and A9, these documents would show that at any time the plaintiff had no claim that he had bit the property comprised in Sy.No.41/8. So, by the mere fact that after the filing of the report and plan by the commissioner the plaintiff had amended the suit by incorporating Sy.No.41/8 would not created a title to the plaintiff over the property comprised in Sy.No.41/8 especially when the eastern boundary described in the plaint did not tally with the actual lie of the property. If the eastern boundary mentioned in the plaint schedule is taken as true, the plaintiff would get much more property, now admittedly in the possession of the defendants and comprised in Sy.No.41/8. In this view of the matter, the finding of the lower appellate SA.No.435 of 1996. -: 7 :- court that the plot D1.Y1.Y2.Y4 in Ext.C2 plan merely on the basis of the measurement is contrary to the facts born out by Exts.A1, A6, A7, A8 & A9. Whereas it appears to be part and parcel of the property in the possession of the defendants comprised in Sy.No.41/8, so long as the boundaries and survey number did not tally with. The conclusion of the lower appellate court with regard to that item is erroneous and unsustainable. But as regards the portion D1.C.Q1 in 1st tak and F.G.Y.Y1.D1.D.E.F. are part and parcel of the property covered by Exts.A1, A6, A7, A8 & A9 and the finding of the lower appellate court that the appellants are entitled to recover that portion is unassailable. 7. As regards the plea of the appellants that the respondent lost title by adverse possession and limitation in respect of the portion D.C.Q1.F.G.Y.Y1.D1.D.E.F., there is nothing on record to show that at any time before the institution of the suit the defendants have in possession of any of that property. The claim of the defendants, as mentioned earlier, that Exts.B1 to B12 there is little material to conclude that, that portion is part and parcel of the property covered by Exts.B1 to B12. So, the plea of perfect title on adverse possession is devoid of merit. The lower appellate SA.No.435 of 1996. -: 8 :- court correctly found against the defendants. 8. In the result, the appeal is allowed in part. The finding of the lower appellate court that plot D1.Y1.Y2.Y4 is part and parcel of the plaint A schedule property and respondents 1 to 5 are entitled to a decree of mesne profit is perverse and as it is contrary to the pleadings and the evidence. In all other respects the impugned judgment and decree is unassailable. There will be no order as to costs. P.S.GOPINATHAN, JUDGE. Kvs/- SA.No.435 of 1996. -: 9 :- P.S.GOPINATHAN, J. ================== SA.No.435 of 1996. ================== JUDGMENT 5th August, 2009.