IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 RSA.No. 403 of 2004(F) ---------------------- AS.59/1993 of ADDL.DISTRICT COURT (ADHOC)-II, MANJERI OS.87/1990 of MUNSIFF COURT, TIRUR .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------------------------------------- PERUMUDI THIRUREDATHIL DILEEP KUMAR, S/O.RAGHAVAN NAIR, PAYYANNUR AMSOM AND DESOM IN THALIPARAMBU TALUK. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): RESPONDENTS/DEFENDANTS -------------------------------------------------------------------- 1. SANTHAKUMARI AMMA, D/O.KODAKKATT THODIYIL CHINNAMMA, VALIYAKUNNU AMSOM DESOM, THRISSUR TALUK. (DELETED) - (CORRECTED) TIRUR 2. UNNIKRISHNAN NAIR, S/O.KALI AMMA VALIYAKUNNU AMSOM DESOM, (THRISSUR TALUK) (DELETED) - (CORRECTED) TIRUR (THE ADDRESS OF RESPONDENTS 1 AND 2 ARE CORRECTED BY DELETING THRISSUR AND BY ADDING TIRUR AT THAT PLACE AS PER ORDER DT.28.6.05 IN I.A.1112/05). 3. MANOJ (DIED) S/O.SANTHAKUMARI AMMA, VALIYAKUNNU AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. (LEGAL HEIRS ARE RESPONDENTS 1 AND 2 ONLY) 4. NISHA, D/O.SANTHAKUMARI AMMA, VALIYAKUNNU AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. 5. SMITHA D/O.SANTHAKUMARI AMMA, VALIYAKUNNU AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. ADV. PREETHY KARUNAKARAN FOR R1,2,4 SRI.R.RAJESH KORMATH FOR R1,2 & 4 SMT.MEENA.A. FOR R1,2 & 4 SMT.SANJANA R.NAIR FOR R1,2 & 4 SRI.RAHUL VARMA FOR R1,2 & 4 SRI.V.S.ROBIN FOR R1,2 & 4 SRI.JAYKAR.K.S. FOR R1,2 & 4 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 1 / 7/ 2011 THE COURT ON 01/07/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No.403 OF 2004 =========================== Dated this the 1st day of July,2011 JUDGMENT Plaintiff in O.S.No.87/1990 on the file of Munsiff Court, Tirur is the appellant. Defendants are the respondents. Suit was filed for permanent prohibitory injunction based on possession. Court fee was paid only under section 27(c) of the Kerala Court Fees and Suit Valuation Act. Appellant claimed possession under Ext.A2 settlement deed, executed by Raghavan Nair, alleging that under Ext.B1 partition deed, Raghavan Nair was allotted properties under E schedule and out of item No.4 and 7 of the E schedule, item No.7 and major portion of item No.4 were assigned in favour of respondents 1 and 3 to 5 under Ext.B7 sale deed dated 15.8.1978 and after the said assignment, Raghavan Nair was in possession of R.S.A 403/2004 2 the plaint schedule property which was the remaining property covered after Ext.B7 sale deed, out of item No.4 of the E schedule of Ext.B1. Raghavan Nair later executed Ext.A2 settlement deed in favour of the appellant on 8.6.1989 and since then he has been in possession of the property. Respondents have no right or possession to the property and they are attempting to trespass into the property. Appellant sought a decree for permanent prohibitory injunction restraining respondents from trespassing into the plaint schedule property. 2. Respondents resisted the suit admitting that as item No.4 and 7 of E schedule properties Raghavan Nair was allotted properties and under Ext.B7 Raghavan Nair assigned 24x12 six feet koles from item No.4 property and he was thereafter not in possession of the plaint schedule property and appellant has no right or possession to the plaint schedule property and therefore he is not entitled to the decree sought for. R.S.A 403/2004 3 3. Learned Munsiff found that though Raghavan Nair had retained a portion of item No.4 of the properties covered under Ext.B1 the said property was not properly identified and appellant has not established his possession and hence he is not entitled to the decree sought for. Appellant challenged the judgment before District Court, Manjeri in A.S.59/1993. But learned Additional District Judge on reappreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Appeal was admitted formulating the following substantial questions of law. i) When a suit is based on measurements of the property and possession of properties described in the document and when there is a series of reports and plan by the Commissioner which did not show the actual measurements and R.S.A 403/2004 4 lie of the land, what is the evidentiary value of the commissioner's reports and plan? Whether the courts below ought to have relied on commissioner's report and plan despite the objection by the plaintiff that the measurements shown by the plaintiff that the measurements shown by the commissioner are incorrect? ii) When there is an ambiguity with reference to the boundary on account of the errors, defects and deficiencies in the plan and report by the commissioner, is not it incumbent upon the civil court to fix the correct extent of the property before deciding the dispute? iii) If at all there is any R.S.A 403/2004 5 ambiguity with reference to the measurements is it not proper to rely on the boundaries and remnants of the property? When there are objections filed by the plaintiff with reference to the identification of the property, whether the courts below were right in ignoring the objection in total and accepting the commissioner's report and plan in total? 5. Learned counsel appearing for the appellant and respondents were heard. 6. The argument of the learned counsel appearing for the appellant is that though under Ext.B7 Raghavan Nair had transferred portion of item No.4 of E schedule of Ext.B1 partition deed, he retained with him the balance property which was subsequently settled in favour of the appellant under Ext.A2 and courts below were not justified in R.S.A 403/2004 6 non-suiting the appellant for the reason that the properties were not properly identified. Learned counsel argued that irrespective of the mistake in the survey number, extent or measurement, when Raghavan Nair obtained the property under E schedule of Ext.B1 partition deed and after assigning the property covered under Ext.B7 the entire balance extent has been in the possession of Raghavan Nair which was transferred under Ext.A2 in favour of the appellant and courts below should have granted a decree in his favour. Learned counsel pointed out that though respondents claimed possession of the plaint schedule property, Ext.B2 to B6 tax receipts are only in respect of the extent covered under Ext.B7 and therefore they are not entitled to claim any additional extent and in such circumstances courts below were not justified in not granting the decree. 7. Learned counsel appearing for the respondents pointed out that as item No.4 Raghavan Nair obtained the property described within the R.S.A 403/2004 7 boundaries having a measurement of 24x39 six feet koles and under Ext.B7, 24x 27 ½ six feet koles extent of property was assigned in favour of respondents 1 and 3 to 5 and therefore as shown in Ext.A2, Raghavan Nair had not retained the said properties and at best he could only transfer 24x12 six feet koles of property and hence courts below rightly found that appellant is not entitled to the decree sought for. 8. The Suit is only for injunction. Appellant did not pay court fee on the market value under section 27(a) and did not seek a decree based on title. Therefore the question of title need not be settled in the suit. 9. Appellant is claiming possession based on Ext.A2 settlement deed. The possession which he could claim is the possession which was retained by his father Raghavan Nair out of the properties obtained by him as item No.4 of E schedule of Ext.B1 partition deed, excluding the property transferred in favour of respondents 1 and 3 to 5 R.S.A 403/2004 8 under Ext.B7 sale deed. When the property obtained as item No.4 of the E schedule is having an extent of 24x39 ½ six feet koles, as seen from Ext.B7 an extent of 24x27½ six feet koles were assigned by Raghavan Nair before execution of Ext.A2 settlement deed. As seen from Ext.A2 and B7, subsequent to Ext.B1 partition deed, Raghavan Nair purchased jenm right from the Land Tribunal and stating that fact, an extent of 24 x 27½ six feet koles was assigned to respondents 1 and 3 to 5. Therefore the property which could have been retained by Raghavan Nair could only be the remaining 24 x12 six feet koles or if the extent with reference to the boundaries is more, the said extent. Raghavan Nair could therefore transfer only 24x12 six feet koles, after Ext.B7 assignment deed. Ext.A2 shows that tak No.1 he transferred 27 ½ x 12 and as tak No.2 27½ x 3 3/4th six feet koles. As rightly found by the courts below, when Raghavan Nair could not have been in possession of that much extent and the appellant did not R.S.A 403/2004 9 establish the actual identity of the property retained by Raghavan Nair out of item No.4 of E schedule of Ext.B1, excluding the property alienated under Ext.B7, appellant is not entitled to a decree for injunction irrespective of the correctness of the report and plan submitted by the Commissioner. In such circumstances, appellant is not entitled to the decree sought for. Appeal is dismissed. It is made clear that as no decision is taken based on title, the dismissal of the suit will not affect the right of the appellant to claim appropriate relief based on title. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006