“CR” IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 AS.No. 865 of 1997() -------------------- OS.79/1994 of SUB COURT, HOSDRUG .................... APPELLANT(S): ----------------------- 1. ANJIL VELLACHI, D/O.PORAYYIKU KUNHAMMA(LATE) AND W/O.KUNHAMBADY, HINDU, HOUSEHOLD, RESIDING AT KARIYIL THURUTHI, CHERUVATHUR VILLAGE, THURUTHI, HOSDURG TALUK. 2. MADHAVI, D/O.PORAYYIKU KUNHAMMA(LATE) AND W/O.KUNHIKANNAN, HINDU, HOUSEHOLD RESIDING AT KARIYIL THURUTHI, CHERUVATHUR VILLAGE, THURUTHI, HOSDURG TALUK. 3. KUNHIRAMAN, S/O.LATE PORAYYIKU KUNHAMMA, HINDU, AGRICULTURIST, RESIDING AT KIZHAKKEMURI, THURUTHI, CHERUVATHUR VILLAGE, HOSDURG TALUK, P.O.ACHAMTHURUTHI. 4. AMBUNHI, S/O.LATE PORAYYIKKU KUNHAMMA, HINDU, AGRICULTURIST, R/AT PUTHU VAYI, THURUTHI, CHERUVATHUR VILLAGE, HOSDURG TALUK, P.O.THURUTHI. 5. KALLYANI, D/O.LATE PORAYYIKKU KUNHAMMA, & W/O.AMBU, HINDU, HOUSEHOLD, R/AT KARIYIL THURUTHI, CHERUVATHUR VILLAGE, HOSDURG TALUK, P.O.THURUTHI,(VIA), CHERUVATHUR. A.S.NO.865/1997 2 6. KUNHIKANNAN, S/O.LATE PORAYYIKKU KUNHAMMA, HINDU, AGRICULTURIST, R/AT KUNDANTE MADU THURUTHI, CHERUVATHUR. 7. MEENAKSHI, D/O.LATE PORAYYIKKU KUNHAMMA, & W/O.BHASKARAN, HINDU, HOUSE HOLD, R/AT KUNDANTE MADU, THURUTHI, CHERUVATHUR VILLAGE, P.O.THURUTHI, (VIA) CHERUVATHUR, KASARAGOD DISTRICT. BY ADV. SRI.L.GOPALAKRISHNAN POTTI RESPONDENT/DEFENDANT IN O.S. -------------------------------------------------------- MAMUNI BHASKARAN ALIAS VATTAYIL BHASKARAN, S/O.CHIRUTHA & PORAKADAVATH KANNAN, HINDU, AGRICULTURIST, R/AT KUNANTE MADU CHERUVATHUR VILLAGE, HOSDURG TALUK, P.O.ACHAMTHURUTHI, VIA CHERUVATHUR, KASARAGOD DISTRICT. ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SRI.KODOTH PUSHPARAJAN FOR 0 SRI.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES SMT.PRABHA R.MENON THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 'CR' V. RAMKUMAR, J. = = = = = = = = = = = = = A.S.No.865 of 1997 = = = = = = = = = = = = = = Dated this the 10 th day of August, 2009 JUDGMENT Supplemental plaintiffs 2 to 8 in O.S.No.79 of 1994 on the file of the Sub Court, Hosdurg are the appellants in this appeal. The said suit was one for fixation of the western boundary of the plaint schedule property which corresponds to the eastern boundary of the defendant's property. 2. The suit was originally filed before the Munsiff's Court, Hosdurg as O.S.No.357 of 1992. While so, that court had issued a Commission and the Advocate Commissioner deputed by the court submitted Ext.A7 report and Ext.A8 plan. Subsequently, after the valuation in the suit was enhanced, the plaint was returned for presentation before the Sub Court, Hosdurg which disposed of the suit as per A.S.No.865 of 1997 2 the impugned decree and judgment. Both sides as well as the court below relied on Exts.A8 report and A9 plan for the purpose of identification of the respective properties. 3. While, according to the plaintiff, the western boundary line of the suit property is along the line NM in Ext.A8 plan, according to the defendant, the western boundary line is along the line JKL in Ext.A8 plan. The court below, after trial, as per judgment and decree dated 4.7.1997, came to the conclusion that in the light of the row of trees and ridge demarcating the property in the possession of the plaintiffs and the western property of the defendant, the plaintiffs were in possession of only plot ABCDEFGHIJKL in Ext.A8 plan. The trial court noted that in order to satisfy the extent of 54 cents covered by their title deeds the plaintiffs' A.S.No.865 of 1997 3 property would go up to the line MN. The court below also found that the 65 cents of land covered by the title deeds of the defendant would include the disputed yellow shaded plot MNKL also. The suit was accordingly dismissed. Hence this appeal by the legal representatives of the original plaintiff. 4. I heard the learned counsel appearing on either side. 5. The learned counsel for the appellant made the following submissions before me in support of the appeal:- Ext.A1 is the earliest document of title of the plaintiffs as per which the prior owner one Parakkadavath Kannan who is none other than the father of the defendant sold 54 cents of land in favour of one Mattummal Chavuniyan, A.S.No.865 of 1997 4 the husband of the 1st plaintiff Kunhamma on 20.2.1959. Thereafter, as per Ext.A2 assignment deed dated 11.4.1961, the 1st plaintiff's husband sold the property to Thottumpurath Ambu who in turn assigned the property to the 1st plaintiff as per Ext.A3 sale deed dated 26.5.1962. The 1st plaintiff had also purchased the Jenmam right of the property from the Land Tribunal as per Ext.A9 order. The Advocate Commissioner had identified the plaint schedule property as plot ABCDEFGHIJKLMN which will include the disputed yellow shaded plot MNKL if the extent of 54 cents covered by Exts.A1 to A3 are to be satisfied. If the properties on the northern boundaries of both the plaintiffs and the defendant were correctly identified, then A.S.No.865 of 1997 5 the court below could not have made the mistake which it has committed. If the western boundary of the plaint schedule property is fixed along the line JKL then the property of the plaintiff will be deficient by 22 cents. The title deeds of the defendant are all subsequent to those of the predecessor-in- interest of the plaintiffs and both the suit property as well as the western property originally belonged to the aforementioned Parakkadavath Kannan. Hence the judgment and decree passed by the Trial court fixing the boundary along the line JKL are unsustainable. 6. I am afraid that I cannot agree with the above submissions. For a better comprehension of the lie of the properties, Ext.A8 plan is reproduced herebelow:- A.S.No.865 of 1997 6 A.S.No.865 of 1997 7 Plot ABCDEFGHIJKLMN is the plaint schedule property admeasuring 54 cents. Plot OPLK is the defendants' property admeasuring 65 cents. Plot MNKL is the disputed yellow shaded plot. X is the residential house of the plaintiffs. It is true that if we go by the extent of 54 cents covered by Exts.A1 to A3 which are the title deeds of the plaintiffs, the area will be satisfied only if the disputed yellow shaded plot MNKL in Ext.A8 plan is also included. But then the Commissioner had noted a row of old trees standing north-south along the line KL in Ext.A8 plan and also vertical ridges north-south separating the eastern property ABCDEFGHIJKL in which the plaintiff has her residential house from the disputed yellow shaded plot MNKL. The Commissioner also noted the difference in level of the said eastern plot ABCDEFGHIJKL from the yellow shaded plot and the plot MNOP both of which were found in the possession A.S.No.865 of 1997 8 of the defendant. The fact that the defendant has title over 65 cents of land cannot be disputed because as per Ext.B1 sale deed Parakkadavath Kannan had sold 22 cents (the disputed yellow shaded plot) to the predecessor-in-interest of the defendant on 23.07.1962. Subsequently, as per Ext.B9 and B10 sale deeds dated 27.12.1988 the defendant obtained the said 22 cents in the form of two parcels admeasuring 6 cents and 16 cents respectively. He was already having 43 cents (plot MNOP) to the west of it as alloted to him as per Ext.B12 partition deed of the year 1989. Thus the 43 cents (plot MNOP) obtained by him in partition and the 22 cents (plot MNKL) purchased by him were found lying together as a compact plot at a higher level than the eastern property (plot ABCDEFGHIJKL) in the actual possession of the plaintiff and separated by the row of trees and vertical ridges referred to above. The A.S.No.865 of 1997 9 court below also found on evidence that the plaintiffs were actually in possession of the plot ABCDEFGHIJKL and that they were not in possession of the disputed yellow shaded plot MNKL. The entire 65 cents of land in the possession of the defendants has been identified as OPLK in Ext.A8 plan. Admittedly, the suit was only for fixation of boundary without any claim for recovery of possession. Even if it could be held that plot MNKL in Ext.A8 is covered by title deeds of the plaintiffs, if the plaintiffs are not found in possession of the said disputed plot, they cannot have the boundary fixed along the line MN which is the western boundary of plot MNKL. Their boundary could be fixed only along the line JKL co-terminous with their possession. This is preceisely what the court below has done as per the impugned judgment and decree. The suit merely for fixation of boundary without a prayer for recovery of A.S.No.865 of 1997 10 possession of plot MNKL was misconceived. As suit for fixation of boundary cannot be a short-cut or substitute for recovery of possession. The remedy, if any, of the plaintiff was to sue for recovery of possession on the strength of title, if any, of plot MNKL besides seeking fixation of the western boundary. That being the position, the decree passed by the court below fixing the boundary along the line JKL in Ext.A8 plan cannot be faulted. The result of the foregoing discussion is that this appeal is without any merit and is accordingly dismissed. However, having regard to the facts and circumstances of the case, the parties shall bear their respective costs. Dated this the 10th day of August, 2009. V. RAMKUMAR, JUDGE sj