IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 Ex.SA.No. 20 of 2008() ---------------------- Ex.F.A.No.22/2008 of SUB COURT, KOCHI EA No.93/2008 IN EP 117/98 IN OS.594/1996 OF PRINCIPAL MUNSIFF COURT, KOCHI .................... APPELLANT/ APPELLANT IN EX.F.A/CLAIM PETTITIONER IN E.A. ----------------------------------------------------------------- TREESA GEORGE, W/O.GEORGE, AGED 65, (NOW 15/1573).KURUSINGAL HOUSE, MOOLANKUZHI, KOCHI-2. BY ADV. SRI.K.MANOJ CHANDRAN SHRI P.R.AJITH KUMAR SHRI GEORGE JOHNSON RESPONDENT(S): RESPONDENTS IN EX.FA/RESPONDENTS IN IA ----------------------------------------------------- 1. KARMELI @ BABY, D/O.AUGUSTINE, AGED 54, RESIDING AT CC NO.15/1162, C/O.KRISHNANKUTTY, @ KUNJUMON, VELIPARAMBIL HOUSE, STATUE ROAD, KOCHI-2. (*) 2. T.M.ADIOQUE, S/O.HASSAN, PAINANGADIPARAMBIL HOUSE, PANAYAPPALLY, KOCHI-2. (DELETED) 3. AGNISA, W/O.LATE XAVIER, D.NO.14/1879, CHULLIKKAL, KOCHI-15. 4. K.X.JOSEPH, S/O.LATE XAVIER, KURUSINGAL HOUSE, XV/1573,NAZRETH, MOOLANKUZHI, KOCHI-2. 5. HENRY, S/O.LATE XAVIER, H.NO.14/1879, CHULLICKAL, KOCHI-5. 6. BABY JOSY, D/O.LATE XAVIER, BEMBLASSERY HOUSE, CHULLICKAL, KOCHI-5. 7. SOOSY JAIMY, D/O.LATE XAVIER, BEMBLASSERY HOUSE, CHULLICKAL, KOCHI-5. Ex.SA NO.20/2008 2 8. JANCY MICHAEL, D/O.LATE XAVIER, KOIPARAMBIL HOUSE, KOCHI-7. (*)RESPONDENT NO.2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 13/2/2009 IN IA NO.333/2009 IN EX.SA NO.20/2008. ADV. SRI.S.B.PREMACHANDRA PRABHU FOR R1 SRI.SHIVSHANKAR RAOFOR R4 SRI.K.X.BERNARD GEORGE FOR R6 SRI.P.P.GENSON FOR R7 & R 8 THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Ex.SA NO.20/2008 ORDER ON I.A.NO.2718/2008 IN EX.SA NO.20/2008 DISMISSED 3.12.2009. Sd/-THOMAS P.JOSEPH, JUDGE. APPENDIX APPELLANT'S EXHIBIT: EXT.A6:CERTIFIED COPY OF SALE DEED NO.3046 OF 1985 OF KOCHI SRO //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- Ex.S.A.No.20 of 2008 -------------------------------------- Dated this the 3rd day of December, 2009. JUDGMENT The Execution Second Appeal arises from judgment and decree of learned Sub Judge, Kochi in Execution First Appeal No.22 of 2008 arising from the order on E.A.No.93 of 2008 in E.P.No.117 of 1998 in O.S.No.594 of 1996 of the court of learned Principal Munsiff, Kochi. 2. Short facts necessary for consideration of Second Appeal are: one Xavier acquired title and possession of 7.610 cents of land together with a building thereon as per Ext.A3, assignment deed No.2380 of 1972. While so, he gifted allegedly the entire suit property in favour of his grandson, Antony (son of respondent No.1) as per Ext.A1, gift deed No.2742 of 1985. Antony, in turn assigned the suit property to respondent No.1 as per Ext.A2. Respondent No.1 filed suit for recovery of possession of the suit property and building thereon from respondent No.2 alleging that respondent No.4 in the appeal, former husband of respondent No.1 unauthorisedly inducted respondent No.2 into possession of the suit property and building. A decree for eviction was granted in favour of respondent No.1 and that has become final. In the course of execution one of the legal representatives of Xavier filed a petition in respect of 610 sq. links of land (scheduled in E.A.No.93 of 2008) claiming that the gift as per Ext.A1 is excluding the said 610 sq. links and that on the death of Xavier all Ex.S.A.No.20/2008 2 his legal heirs are entitled to share in the said 610 sq. links. That petition did not succeed. Later appellant filed E.A.No.93 of 2008 in the executing court claiming that the said 610 sq. links which according to the appellant is not covered by Ext.A1 belonged to all the legal representatives of Xavier in co-ownership and hence in delivering possession as per the decree in the suit the said 610 sq. links has to be excluded. That application was opposed by respondent No.1/decree holder and after enquiry executing court found against the appellant which the first appellate court has confirmed. Hence the Second Appeal urging the following as the substantial question of law: When out of the 7.610 cents of property owned by late Xavier, three cents were sold to one Usha in the year 1985 and out of the balance extent of 4.610 cents late Xavier had gifted four cents alone to his grandson Antony and the balance extent 610 sq. links of property including a portion of the building should necessarily be found with him as has been observed by the advocate commissioner in Exts.A4 and A4(a), reports were the courts below justified in holding that the said 610 sq. links had automatically vested in respondent No.1? 3. Appellant filed I.A.No.2889 of 2009 under Order 41 Rule 27 of the Code of Civil Procedure (for short, “the Code”) to receive additional evidence and produced the C.C. of assignment deed No.3046 of 1985 dated 10.10.1985 executed by Xavier in favour of Usha in respect of the three cents towards east of the total of 7.610 cents. Since the document is relevant and necessary for a Ex.S.A.No.20/2008 3 proper decision of the controversy raised in this case that application is allowed and the document is marked as Ext.A6. It is contended by learned counsel for appellant that though Order 21 Rule 101 of the Code contemplated a detailed enquiry into all questions including title and possession when a claim petition is preferred, executing court has conducted the enquiry in a summary nature without going into the merits of the contentions raised and decided against the appellant. It is also contended by learned counsel that first appellate court has disposed of appeal without referring to the contentions raised by the parties. Learned counsel contends that going by Ext.A1, entitlement of Antony was only for four cents and building situated thereon and hence he was not competent to transfer to respondent No.1 (as per Ext.A2) anything more than what he got as per Ext.A1. Learned counsel has referred to me the evidence on record. Learned counsel for respondent No.1 per contra contended that appellant has been put up by respondent No.4 who himself had preferred a claim petition and lost. It is also contended by learned counsel that the entire decree schedule property and the building belongs to respondent No.1. 4. No doubt when a claim petition is filed if the court does not refuse to entertain the same, it has to be enquired into and all questions regarding title, interest and possession arising between the parties to the proceeding are to be decided. The order of adjudication will have the force of a decree. Therefore the executing court is required to decide the questions relating to title and possession. So far as Ext.A1 is concerned, the contention raised by learned counsel for respondent No.1 is that though while describing the property gifted to Ex.S.A.No.20/2008 4 Antony the extent is stated as four cents, a reading of Exts.A1, A2 and A6 would show that what was gifted to Antony is the entire property lying within the boundaries mentioned in the schedule which according to the learned counsel would take in 4.610 cents and the building situated thereon. Learned counsel submits that Xavier assigned three cents towards east of the property in favour of one Usha as per Ext.A6 and that assignment is after the gift in favour of Antony as per Ext.A1. Ext.A2 is the document executed by Antony in favour of respondent No.1 where the extent of property assigned is stated as 4.610 cents and the building thereon. Controversy is regarding the 610 sq. links which the appellant say, did not form part of the gift as per Ext.A1. Learned counsel invited my attention to Ext.A5, copy of written statement filed by respondent No.1 in O.S.No.59 of 2007 of the court of learned Munsiff, Kochi, a suit instituted by the appellant against other legal representatives of Xavier claiming partition and separate possession of the disputed 610 sq. links. Learned counsel submits that in Ext.A5 there is no contention for respondent No.1 that she is in possession of the 610 sq. links. In response it is pointed out by learned counsel for respondent No.1 that though the disputed 610 sq. links is shown by the advocate commissioner in Exts.A4 and A4(a) as situated on the eastern portion of the property admittedly gifted to Antony as per Ext.A1, going by the plaint averments in O.S.No.59 of 2007 the disputed 610 sq. links is shown in that plaint as situated on the south-west of the property gifted to Antony as per Ext.A1. It is submitted by learned counsel that O.S.No.59 of 2007 has ended in a dismissal and the matter is pending consideration in the Sub Court, Kochi in Ex.S.A.No.20/2008 5 A.S.No.12 of 2009. 5. It is seen from the copy of decree in the present suit given to me for perusal by learned counsel for respondent No.1 that the extent of property described therein is 4.416 cents (and not 4.610 cents) ofcourse, lying within the boundaries mentioned therein and the building situated thereon. The boundary description in the decree schedule tallied with the description in Ext.A1. Learned counsel for respondent No.1 states that mention of the extent as 4.416 cents in the plaint schedule is a mistake in drafting the plaint . Appellant also has no case that entitlement of respondent No.1 is for 4.416 cents. Dispute is whether it is four (4) cents or 4.610 cents. 6. It is contended by learned counsel for respondent No.1 that a reading of Ext.A1 would show that less the three cents towards the eastern side which was later assigned to Usha and others as per Ext.A6, the entire property on the west (ie. 4.610 cents) including building was gifted to Antony as per Ext.A1. It is also the contention of learned counsel when there is conflict between extent, survey number, boundaries, etc. the one description which is more clear is to prevail over the other and in this case, considering the fact that eastern boundary in Ext.A1 is stated as property of Xavier (which according to learned counsel was later assigned to Usha as per Ext.A6) and other boundary descriptions and particularly taking into consideration that the entire building (a portion of which admittedly comes within the disputed 610 sq. links) has been gifted to Antony as per Ext.A1, it must be taken that Xavier had gifted 4.610 cents and entire building to Antony as per Ext.A1. Ex.S.A.No.20/2008 6 7. At the time when Xavier gifted a portion of his property the total extent of which, it is not disputed by either side is 7.610 cents the donee (Antony, his grandson) was a minor. The donee was represented by his father in Ext.A1, the gift deed. Ext.A1 states that the four (4) cents together with the building bearing door No.XV/1359 is gifted to Antony. Ext.A1 does not give the measurements of the property but states the extent as four (4) cents. The boundary descriptions in Ext.A1 is property of Xavier (the donor) on the east, property in same survey number on the north and property of third parties on the west and south. In Ext.A2, assignment deed executed by Antony in favour of respondent No.1, the property assigned is stated to be 4.610 cents made upto four (4) cents referred to in Ext.A1 and 610 sq. links in his possession and enjoyment and bounded by property in the same survey number on the east and north and property of third parties on the west and south. After gift of the property covered by Ext.A1, Xavier assigned the three cents forming the eastern portion of the 7.610 cents to Usha as per Ext.A6 describing the western boundary as property of himself in the same survey, property of third party on the east, five (5) links wide way on the north and puramboke way on the south. Learned counsel for appellant submits that when after gift of the western portion to Antony as per Ext.A1, Xavier assigned the eastern portion to Usha as per Ext.A6 he described the western boundary of the property assigned as per Ext.A6 as “my property in the said survey number”, the inescapable conclusion is that even after Ext.A1, Xavier retained some property on the east of the property referred to in Ext.A1 which was shown as the western boundary in Ex.S.A.No.20/2008 7 Ext.A6. According to the learned counsel, the said property is the 610 sq. links which is not dealt with as per Exts.A1 or A6. Learned counsel contends that Ext.A2, assignment deed also would indicate that what Antony got by way of gift as per Ext.A1 is only the four (4) cents and over the 610 sq. links in dispute he was only claiming possessory right which cannot defeat the claim of the legal representatives of Xavier over the said 610 sq. links. Learned counsel for respondent No.1 would argue that in Ext.A6 the western boundary is described as “my property in the said survey number” only because as per Ext.A1, Xavier gifted the property to his grandson, Antony represented by the father of the latter, property was put in possession of the father for and on behalf of Antony and since Xavier had retained a life interest for himself in the building referred to in Ext.A1. 8. Reading of Exts.A1,A2 and A6, there appears to be a conflict in the extent of property referred to in Ext.A1. If one is to prefer the extent, it has to be held that the property gifted as per Ext.A1 is only four (4) cents in which case contention of appellant regarding the disputed 610 sq. links should prevail. But when there is conflict between boundaries, extent, etc. the one which is more clear and more specific has to be preferred. In some cases it may be the extent while in some other cases it may be the boundaries or the side measurements that would prevail. The rule is one of construction (see Savithri Ammal Vilasini Ammal v. Jayaram Pillai Padmavathi Amma (1989 (2) KLJ 709). In Parameswaran Pillai v. Gowrikutty Amma Ex.S.A.No.20/2008 8 (1984 KLT SN. No.111) description by fixed boundaries was preferred to description by area. 9. I stated from Ext.A6, and it is not disputed by either side also that what is assigned to Usha as per Ext.A6 is the three (3) cents described by the side measurements mentioned therein and situated towards the eastern portion of the 7.610 cents. When Xavier gifted a portion of the property towards the western side of Antony as per Ext.A1, the remaining portion on the eastern side belonged to and was in the possession of Xavier. Hence the eastern boundary description in Ext.A1 is justified. Then the question is whether the extent gifted is four (4) cents or it takes in the disputed 610 sq. links also. Going by Exts.A4 and A4(a), the said 610 sq. links (marked as plot B in Ext.A4(a)) has a length of 16.9 metres and width 1.05 metres (this is also not disputed by either side). It extends north-south. Xavier had no property on the north or south of the 7.610 cents so that, he retained the 610 sq. links for his convenient user of such property on the north or south at the time of Exts.A1 and A6. Going by the boundary descriptions in Ext.A1, the disputed 610 sq. links cannot be said to have been excluded by that description though the extent stated is only four (4) cents. I stated that there was no necessity or occasion for Xavier to retain such a small strip of land with him for no use at all. One can understand if the dispute raised was by the assignee of the eastern portion on the strength of Ext.A6. Yet another circumstance in favour of acceptance of the boundary descriptions over the extent stated in Ext.A1 is that indisputably and as Ext.A1 says, the entire building bearing door No.XV/1359 was gifted to Antony and over which Ex.S.A.No.20/2008 9 Xavier retained a life interest. Exts.A4 and A4(a) would show that a small portion of the said building towards its eastern side also falls in the disputed 610 sq. links and excluding that portion of the building, width of the disputed land on the east of the building is just 0.6 and 0.8 metres on either side (out of the total width of 1.05 metres of the 610 sq. links). When it is seen from Ext.A1 that the entire building is gifted to Antony, necessarily, the land occupied by and appurtenant the building also should go along with it, unless there is a contrary intention expressed by the donor that in the disputed 610 sq. links, only that portion of the building falling in it is gifted and Xavier retained title of the remaining portion of 610 sq. links. There is no such intention discernible from Ext.A1 expressly or impliedly. There is nothing to show that at the time of Ext.A1 a measurement was made and Xavier intended to give away by gift only the four (4) cents. I stated that the building as a whole is gifted as per Ext.A1. Necessarily the land appurtenant also should go with it. 10. So far as the boundary description in Ext.A6 is concerned, the explanation given by respondent No.1 which is appealing is that it was so said as the gift as per Ext.A1 was in favour of the minor grandson represented by his father, the father was put in possession and Xavier, the grandfather reserved a life interest in the building. The western boundary description in Ext.A6 is not inconsistent with the contention of respondent No.1. Nor am I inclined to think, in the facts and circumstances of this case that a wrong mention in Ext.A2 as to the derivation of title over the disputed 610 sq. links in Ext.A2 would cut down title of the donee under Ext.A1 over the disputed portion and consequently the Ex.S.A.No.20/2008 10 title of respondent No.1 over that portion acquired as per Ext.A2. 11. Learned counsel for appellant has a contention that the executing court has not conducted a proper enquiry into the matter. But there is no case or reason to think that any of the parties were denied opportunity to adduce evidence. Executing court though not in so many words has construed Ext.A1 to hold that appellant's claim over the disputed 610 sq. links cannot be sustained. 12. On going through the evidence, facts and circumstances and on hearing counsel on both sides, I am unable to uphold the title claimed by the appellant over the disputed plot of land. In the facts and circumstances of the case the boundary description in Ext.A1 has to be preferred to the area stated therein and in consequence, the claim petition has to fail. The substantial question of law framed is answered accordingly. Resultantly, the Second Appeal fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks