IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 SA.NO. 959 OF 2000(E) -------------------------------- AS.85/1993 OF I ADDL. DISTRICT COURT, TRIVANDRUM OS.82/1980 OF PRL.M.C.,NEYYATTINKARA .................... APPELLANT(S)-1ST RESPONDENT - 1ST DEFENDANT: ---------------------------------------------------------------------- MANUEAL ISRAEL, KUZHITHALAMCOTTU MELE PUTHEN VEEDU, MALAYINKIL DESOM, MARUKIL VILLAGE, THIRUVNANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL RESPONDENT(S) – APPELLANTS & RESPONDENTS 1 & 2 PLAINTIFFS AND DEFENDANTS 2 AND 3: ------------------------------------------------------------------------------- 1. AZHARIA TITUS, IRUMBIL NIVAS, PANNIYODE DESOM, ARYANAD VILLAGE, THIRUVANANTHAPURAM. 2. KUNJAMMA SARASAMMA, KUTHUKUZHI THADATHARIKATHU PUTHEN VEEDU, MANNOORKARA, THIRUVANANTHAPURAM. 3. AZHARIA CHELLA THAMPI, KIZHAKKUMKARA PUTHEN VEEDU, DO. DO. 4. KUNJAMMA OMANA ALIAS SAROJINI, DO. DO. 5. KUNAJAMMA SWARNAMMA, DO. DO. 6. AZHARIA THANKAPPAN, DO. DO. 7. MUNDAN MADHAVAN, PADINJAREKARA PUTHEN VEEDU, KUZHITHALAMCODE, THIRUVANANTHAPURAM (DELETED) 8. KALU PONNU, DO.DO. (DELETED) (THE NAMES OF RESPONDENT NOS.7 AND 8 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 26.8.2003 ON I.A. NO.689 OF 2003) BY ADVOCATE SHRI G.S. REGHUNATH FOR R1 TO R6 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. No.959 of 2000 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of January, 2010 J U D G M E N T --------------------- Second Appeal is brought from judgment and decree of learned First Additional District Judge, Thiruvananthapuram in A.S. No.85 of 1993 reversing judgment and decree of learned Prl.Munsiff, Neyyattinkara in O.S. No.82 of 1980. Original plaintiff/predecessor-in-interest of respondent Nos.1 to 6 sued the appellant and respondent Nos.7 and 8/defendant Nos.1 to 3 for declaration of title and fixation of eastern and northern boundaries of plaint B schedule. Plaint A schedule is 89 cents comprised in Sy.No.50/7. According to the original plaintiff the said 89 cents was acquired by Yohannan and Paulose as per Ext.A7, partition deed as A schedule item No.9 and E schedule item No.9, respectively (44½ cents each). In 1121 M.E., 44½ cents (out of the said 89 cents towards its southern side) in plaint A schedule was given on Otti kuzhikanom to respondent Nos.7 and 8. That was followed by Yohannan and Paulose assigning plaint A schedule as per Exts.A2 to A4 to Pathrose Anthrayose and his wife. From them original plaintiff acquired the said 89 cents as per Ext.A1, with right to S.A. No. 959 of 2000 -: 2 :- redeem the mortgage. Original plaintiff assigned the mortgaged 44½ cents (towards southern portion of 89 cents) to respondent Nos.7 and 8. Rest of the property (44½ cents towards northern portion of the 89 cents) which belonged to and in the possession of original plaintiff is described in the plaint B schedule. Appellant/defendant No.1 has property on the north of plaint B schedule. It is the complaint of original plaintiff that there is no boundaries on the north and east of B schedule and hence the suit. Later, plaint was amended alleging that appellant has put up structures protruding into a portion of plaint B schedule (described in plaint C schedule) and seeking a direction to the appellant to remove that portion of the structure. Respondent Nos.7 and 8/defendant Nos.2 and 3 did not contest. Appellant/defendant No.1 contended that predecessor-in-interest of respondent Nos. 1 to 6 (original plaintiff) had no right over plaint A schedule and pleaded ignorance about the mortgage in favour of respondent Nos.7 and 8. He contended that Ext.A1, assignment deed in favour of the original plaintiff is not valid. Himself has title and possession of 66½ cents including the 44½ cents referred to in plaint B schedule and falling in Sy. No.50/7. He denied the allegation of trespass into any portion of plaint B schedule. The suit was originally decreed on 30.1.1982. S.A. No. 959 of 2000 -: 3 :- Appellant challenged that judgment and decree in A.S. No.401 of 1982 and there was a remand. After remand learned Munsiff dismissed the suit which the original plaintiff challenged in A.S. No.4 of 1986. Again there was a remand with a direction to the trial court to get the properties properly measured. After that remand properties were measured with reference to Ext.A7, partition deed to which contesting parties trace their title. Trial court observed that Ext.A5, original of the partition deed did not contain the relevant pages, properties were not measured with reference to the survey plan, title of original plaintiff is not proved and accordingly dismissed the suit. That was challenged by the original plaintiff in A.S. No.85 of 1993. Learned District Judge found that Ext.A7 is the certified copy of Ext.A5 (marked in the trial court) from which title of the parties could be traced, a further remand to the trial court for the reason that properties were not measured with reference to the survey plan is not warranted since that would cause much inconvenience to the parties (after two rounds of remand already made) and relying on Exts.C5 and C5(a) report and plan which survived, found title in favour of the original plaintiff as regards plaint B schedule as identified by the Commissioner in Ext.C5(a). Based on that, eastern and northern boundaries of that property S.A. No. 959 of 2000 -: 4 :- were fixed and the original plaintiff was given a decree as prayed for. That is under challenge in this Second Appeal at the instance of appellant/defendant No.1. Pending suit original plaintiff died and his legal representatives were impleaded as respondent Nos.1 to 6. Respondent Nos.7 and 8 were deleted from the party array. 2. Following substantial questions of law are framed for a decision: (i) Whether without measuring the properties with reference to the survey plan, a decree of the nature granted by the first appellate court could be granted? (ii) Whether in the absence of clear evidence to show that original plaintiff was in possession of the suit property, first appellate court is justified in reversing the judgment and decree of the trial court and granting a decree? It is contended by learned counsel for the appellant that in the nature of the suit measurement of properties with reference to survey plan was necessary particularly as Advocate Commissioner S.A. No. 959 of 2000 -: 5 :- has stated in Ext.C5 that she could not find at spot extent of properties in the way stated in Ext.A7, partition deed. According to the learned counsel there is no proper identification of plaint B schedule property and property admittedly belonging to the appellant as per Ext.A7. Learned counsel for respondent Nos.1 to 6 contend that remand judgment in A.S. No.4 of 1986 did not say that properties are to be measured with reference to survey plan and instead original plaintiff was given opportunity to get properties properly measured. It is also contended that trial court (after the second remand) dismissed the suit observing that original plaintiff has no title over the property and that finding came merely for the reason that Ext.A5 (C.C. of which is Ext.A7) did not contain all the pages. According to the learned counsel, learned Munsiff failed to take into consideration certified copy of the very same partition deed marked as Ext.A7 in the very same court. 3. Since Ext.A5 is not complete in that some of the pages are missing, reference can be made to Ext.A7. Since Ext.A7 is a certified copy obtained as provided under law presumption attached to its genuineness can be drawn. It is true that properties are not measured with reference to the survey plan. Advocate Commissioner (D.W.1) has stated that survey plan was not made S.A. No. 959 of 2000 -: 6 :- available by the original plaintiff. It is so stated in Ext.C5 also. But it is seen from evidence of D.W.1 and Ext.C5 that properties were measured with reference to Ext.A7, certified copy of partition deed to which contesting parties trace their title and based on the respective possession of parties as shown by them. In Ext.A7, item No.9 of A schedule was allotted to Yohannan (party No.1 in Ext.A7) while item No.9 of E schedule was allotted to Paulose (party No.5 in Ext.A7). To the appellant, item No.9 of F schedule was allotted. It is seen that total extent of property partitioned is 4.13 acres which lay in two plots, 2.67 acres on the west and 1.46 acres on the east. Present litigation does not concern the eastern plot, 1.46 acres. Dispute concerns 2.67 acres, the western plot. Exhibit A7 shows that western plot (2.67 acres) was divided into six schedules (44½ cents each) of which as I stated, item No.9 of A schedule was allotted to Yohannan and item No.9 of E schedule was allotted to Paulose which ultimately came to the ownership and possession of the original plaintiff as per Ext.A1. The two plots measured 44½ cents each and together made 89 cents (plaint A schedule). It is not disputed that of the 89 cents it is the southern half which was mortgaged to respondent Nos.7 and 8 and the remaining northern half – 44½ cents is the disputed plaint B schedule. Going by the S.A. No. 959 of 2000 -: 7 :- descriptions in Ext.A7, F schedule item No.9 allotted to the appellant is on the extreme north of western plot and on its immediate south is A schedule item No.9 (plaint B schedule). There is no dispute regarding extent or survey number of the properties between the contestants – appellant and original plaintiff. There is also no dispute regarding northern boundary of F schedule item No.9 allotted to the appellant as per Ext.A7. In Ext.C5(a) Advocate Commissioner has shown F schedule item No.9 (allotted to the appellant as per Ext.A7) as on the extreme north. On its immediate south is A schedule item No.9 of Ext.A7 (plaint B schedule) which forms northern portion of 89 cents referred to in plaint A schedule. In Ext.A7 measurement of A schedule item No.9 is given as starting from a point 205 links south of the survey stone on the north- western corner of the entire property (on north western corner of F schedule item No.9) along the western side. From that point, A schedule item No.9 (plaint B schedule) is measured in Ext.A7. Measurement is given as 123 links (north-south) on the west, 409 links (east-west) on the south, 95 links (north-south) on the east and 426 links (east-west) on the north. That is described as 44½ cents. So far as F schedule item No.9 allotted to the appellant is concerned, its measurements are given as 94 links on the east, 105 links on S.A. No. 959 of 2000 -: 8 :- the west, 329 links on the north and 326 links on the south. That item is described as 44½ cents. 4. Now I shall refer to Exts.C5 and C5(a), report and plan. Exhibit C5 shows that link measurements of plaint schedule tallied with the measurement given for item No.9 of A schedule in Ext.A7. So far as F schedule item No.9 is concerned, there is no deficit so far as extent is concerned. It has come in evidence in Ext.C5 that on the western side of the entire 2.67 acres a road has been formed making use of portion of the suit property and property of appellant. Commissioner has reported that less the portion taken for formation of road, extent of B schedule is 43.439 cents and that of schedule item No.9 in Ext.A7 is 43.675 cents. Measurements excluding the portions made use of for the road tallied with the extent and measurements of A schedule item No.9 and F schedule item No.9 in Ext.A7. 5. Now the contention of appellant is that his entitlement as per Ext.B1 is for 66½ cents but the commissioner has only stated about 43.675 cents excluding the portion surrendered for formation of the road. This according to the learned counsel indicated that there was no proper measurement. But it is seen from Ext.A7 that 22 cents allotted to the share of appellant (other than F schedule S.A. No. 959 of 2000 -: 9 :- item No.9 - 44½ cents) is on the east of the said item. It is also seen that to the sharers of A schedule item No.9 and E schedule item No.9 also land was allotted on the east of the said items which I stated are not the subject matter of the present litigation. It is seen from Ext.A7 that the 22 cents allotted to the appellant apart from F schedule item No.9 as I stated above is on the east. Eastern and western measurements of the said land are given in Ext.C5(a). It appears that appellant is under a mis-impression that the remaining 22 cents allotted to him is towards south of F schedule item No.9 (i.e. the plaint B schedule) while Ext.A7 shows that the said 22 cents is on the east of the F schedule item No.9. Learned counsel for respondent Nos.1 to 6 would contend that in Exhibit B1 also similar description is given regarding the said 22 cents. If that be so towards the south of F schedule item No.9 appellant cannot claim title or possession. I stated from Ext.C5(a) that excluding portions already given for road, extent of the property held by the contestants tallied with the extent given in Ext.A7. 6. Advocate Commissioner has also stated in paragraph 5 of Ext.C5 that measurement was taken with reference to Ext.A7 and possession of the parties. True, in paragraph 13 it is stated that on measurement extent was found to be not tallying with Ext.A7, S.A. No. 959 of 2000 -: 10 :- certainly because portions were already surrendered for formation of the road on the western side. It is pertinent to note that appellant also did not take steps to make available (if at all it was available) a survey plan for measurement. Learned counsel for respondent Nos.1 to 6 was of the view that a survey plan was not available. On the facts and evidence absence of a survey plan does not appear to me to be fatal in the light of the measurements given in Ext.A7 which I have stated above and the measurement made by the Advocate Commissioner with the assistance of the Surveyor and as given in Ext.C5(a). In that situation merely for the reason that the survey plan was not used for measurement I am not inclined to think that it affected the claim of the original plaintiff over B schedule or caused prejudice to the contention of appellant. First appellate court has observed that in the circumstances a further remand of the case would only cause inconvenience to the parties (who have already suffered two remands). Attempt of the court should be to decide the controversy as far as possible on the available materials rather than attempting to remand the case unless it has becomes absolutely necessary. Viewed in that line I find no reason to order a further remand. First appellate court has found on evidence that original plaintiff has proved his title and possession S.A. No. 959 of 2000 -: 11 :- over B schedule property as identified by the Commissioner in Ext.C5(a). It is also relevant to note that boundary fixed is only as regards the eastern and northern boundaries of item No.9 of F schedule in Ext.C5(a) (plaint B schedule) which does not in any way affect the claim of appellant for 22 cents on the east of F schedule item No.9. 7. Substantial questions of law framed are answered accordingly. Second Appeal is dismissed. No costs. THOMAS P.JOSEPH, JUDGE. vsv S.A. No. 959 of 2000 -: 12 :- THOMAS P.JOSEPH, J. =================== S.A. NO. 959 of 2000 =================== J U D G M E N T 25TH JANUARY, 2010 S.A. No. 959 of 2000 -: 13 :-