IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 FAO.No. 116 of 2006() --------------------- AGAINST THE ORDER DATED 28/01/2006 IN AS.84/2001 of SUB COURT, THIRUVALLA IN OS.538/1996 of MUNSIFF COURT, THIRUVALLA (O.S.NO.498/96) APPELLANTS/RESPONDENTS/DEFENDANTS: ------------------------------------------------------ 1. THANKAMMA, W/O. SIVARAMA PILLAI, PADINJAREMOOLETHARAYIL HOUSE, PERUMPETTY MURI, PERUMPETTY VILLAGE, MALLAPPALLY TALUK. 2. SIVARAMA PILLAI, -DO- -DO-. 3. M.K. RAMESH, S/O. SIVARAMA PILLAI, -DO- -DO-. 4. M.S. GIREESH, -DO- -DO-. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENT(S): APPELLANT/PLAINTIFF: ----------------------------------------------- SURENDRANATHA KURUP @ PONNUMANI, S/O. LATE KOCHUKUNJU KURUP, SURESH BHAVAN FROM NADUVILEMURIYIL HOUSE, CHERIYAKUNNAM MURI, PERUMPETTY VILLAGE, MALLAPPALLY TALUK. BY ADV. SRI.CHERIAN GHEEVARGHESE SRI.P.HARIDAS THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/02/2009 ALONG WITH FAO NO. 122 OF 2006 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1358/2006 IN F.A.O.116/2006 25.2.2009 DISMISSED Sd/- M.SASIDHARAN NAMBIAR JUDGE /true copy/ P.S to Judge 01 M.SASIDHARAN NAMBIAR,J. =========================== F.A.O. NO.116 & 122 OF 2006 =========================== Dated this the 25th day of February,2009 JUDGMENT The plaintiff in O.S.498/1996 who is the first defendant in O.S.538/1996 on the file of Munsiff Court, Thiruvalla is the appellant. F.A.O 122/2006 is filed challenging the judgment in A.S.83/2001 and F.A.O.116/2006 is filed against the judgment in O.S.538/1996. The sole respondent in F.A.O 122/2006 is the plaintiff in O.S.538/1996. O.S.538/1996 was filed originally for fixation of boundary. Later it was got amended claiming recovery of possession of the portion of item No.1 of plaint schedule property from the possession of appellant alleging that it is trespassed area. O.S.498/1996 was instituted by the appellant seeking a decree for permanent prohibitory injunction. Item No.2 of the F.A.0.No.116 & 122 of 2006 2 plaint schedule property in O.S.538/1996 is the plaint schedule property in O.S.498/1996. Item No.1 therein is the property of the first respondent. Appellant and the respondent in F.A.O.122/2006 are direct sister and brother. Under Ext.A1 partition deed, the joint properties were divided. Item No.1 of the plaint schedule property in O.S.538/1996 was allotted to the share of the respondent (for convenience sake the plaintiff in O.S.538 of 1996 is hereinafter referred to as respondent) as item No.1 of schedule 3. He is party No.4 in Ext.A1 partition deed. So also as item No.1 of schedule 4 of Ext.A1 partition deed plaint schedule property in O.S.498/1996, which is item No.2 of the plaint schedule properties in O.S.538/1996, was allotted to the share of the appellant. Appellant is party No.5 in Ext.A1. The dispute is with regard to the separating boundary of item No.1 of schedule 4 belonging to the appellant and item No.1 of schedule 3 of Ext.A1 partition deed belonging to the respondent. Item No.1 of schedule 4 lies to the east and item No.1 of schedule 3 lies to its F.A.0.No.116 & 122 of 2006 3 immediate west. Under Ext.A1 the boundaries of the properties are not given with reference to the respective properties allotted to the parties. Instead boundaries of item No.1 of schedule 1 of Ext.A1 property, is given as the boundary of item No.1 of schedule 4 allotted to the appellant. So also the boundaries of item No.1 of schedule 4 allotted to the respondent is given as boundaries of item No.2 of schedule 1 of Ext.A1 partition deed. From the description of item No.1 of schedule 3 of Ext.A1 partition deed, it is clear that 1 acre 34 cents allotted to the respondent therein which is claimed as item No.1 of the plaint schedule property in O.S.538/1996 lies to the west of the stone wall (kalluvara) and padiyara purayidom which is item No.1 of schedule 4 allotted to the appellant. The description of item No.1 of schedule 4 of Ext.A1 partition deed shows that the property allotted to the appellant is 1 acre 20 cents which is a portion of padiyara purayidom. Therefore it is clear that to the west of padiyara purayidom which was allotted to the appellant is the property allotted to the respondent as item F.A.0.No.116 & 122 of 2006 4 No.1 of schedule 3 of Ext.A1 partition deed. The dispute is with regard to the separating boundary. 2. It is on the allegation that respondent attempted to trespass into the property in the possession of the appellant O.S.498/1996 was filed. It is on the allegation that there is no separating boundary between the properties of the appellant and respondent and thereby appellant trespassed into a portion of the property of the respondent and reduced it into her possession O.S.538/1996 was filed for fixation of the boundary and for recovery of possession of that portion of the property. Learned Munsiff based on Ext.C2(a), C2(b), C3 and c3(a) and the evidence of Pws. 3 and 4 the Surveyor and Commissioner who submitted Ext.C2 report found that there cannot be any property for the appellant to the east of the kalluvara and EZXYF marked in Ext.C2(a) plan is the separating boundary. Respondent was permitted to put up boundary through that line and a decree for injunction was granted in favour of the appellant. Challenging the common judgment, A.S.83/2001 and A.S.84/2001 were filed before Sub Court, Thiruvalla. F.A.0.No.116 & 122 of 2006 5 A.S.83/2001 was filed against the decree in O.S.498/1996 and A.S.84/2001 against the decree in O.S.538/1996. Learned Sub Judge as per the impugned common judgment set aside the common judgment of the trial court and remanded the suit for fresh disposal after proper identification of the properties. Learned Sub Judge also found that all the sharers to Ext.A1 partition deed are to be impleaded in O.S.538/1996 as the boundary could be fixed only in their presence. It is challenging the said judgment these appeals are filed. 3. Appeals were admitted formulating the following substantial questions of law. 1. When the recitals in Ext.A1 partition deed is to the effect that boundary is to prevail over the other descriptions of the properties, did the court below erred in remanding the suit for trial after identification of the properties based on extent?. 2. Whether the appellate court F.A.0.No.116 & 122 of 2006 6 was properly construed Ext.A1 to fix the boundary? 4. Learned counsel appearing for the appellant and respondent were heard. 5. The property belonging to the appellant and that of the respondent are the properties obtained under Ext.A1 partition deed. The property belonging to the appellant is item No.1 of schedule 4 therein and that of the respondent is item No.1 of schedule 3 . Though O.S.498/1996 is only a suit for injunction and the appellant is entitled to get a decree for injunction provided her possession is established, O.S.538/1996 being one for fixation of the boundary and for recovery of possession of the portion of the property if any found in the possession of the appellant and belonging to the respondent, the suits could be decided only on proper identification of the properties. Item No.1 in O.S.538/1996 belonging to the respondent lies to the west of item No.2 of the plaint schedule properties therein, which belongs to the appellant. Therefore the boundary to be fixed is the eastern boundary of item No.2 and the western F.A.0.No.116 & 122 of 2006 7 boundary of item No.1 of the plaint schedule properties. In O.S.538/1996 learned Munsiff accepting Ext.C2 report and C2(a) plan, based on the evidence of Pws. 3 and 4, fixed EZXYF as the demarcating line. Learned Sub Judge on the evidence found that the boundary was not properly fixed and therefore remanded the suit for fresh disposal after proper identification. 6. Though there was a direction to implead all the other executants of Ext.A1 partition deed in the suit for proper fixation of the boundaries, as rightly pointed out by the learned counsel appearing for the appellant, when there is no dispute with regard to the remaining boundaries of item No.1 of plaint schedule properties in O.S.538/1996, there is no necessity to implead the other executants of Ext.A1 partition deed to fix the western boundary of item No.2 of the plaint schedule property in O.S.538/1996, which is the eastern boundary of item No.1 therein. Therefore direction of the learned Sub Judge to implead the other executants of Ext.A1 partition deed is illegal and is unnecessary for proper resolution of F.A.0.No.116 & 122 of 2006 8 the dispute between the appellant and the respondent. 7. But on going through the judgment of the trial court as well as that of the appellate court, I find no reason to interfere with the order of remand. At the same time it is to be clarified that the properties cannot be fixed with reference to the extent mentioned in Ext.A1. There is no case for the plaintiff in O.S.538/1996 that when the properties were divided under Ext.A1, the entire properties were measured and the different properties were fixed and allotted. On the other hand, it is the case of the appellant that there was no fixation of the boundary at that time. Ext.A1 shows that the only identifying boundary between item No.1 of schedule 3 and item No.1 of schedule 4 the respective properties of appellant and respondent is existence of a stone wall. Therefore the boundary could be fixed only with reference to the stonewall, which is mentioned in Ext.A1 partition deed. 8. The argument of the learned counsel appearing for the respondent is that the stonewall F.A.0.No.116 & 122 of 2006 9 referred to as the boundary in Ext.A1 is not the stonewall found by the Commissioner based on which E Z X Y F line was fixed being the boundary line. The argument is that no such stone wall as stated in Ext.A1 was in existence on the date of institution of the suit. On the other hand, it is the specific case of the appellant that the stone wall mentioned in Ext.A1 is the stone wall found by PW4 the Commissioner. Learned counsel appearing for the appellant pointed out that Ext.C3 report submitted by DW2 Advocate Commissioner establish that the stonewall is aged more than 50 years and therefore it could only be the stonewall mentioned in Ext.A1. As the learned Sub Judge directed fresh identification of the property, suffice to mention that Commissioner has to identify item No.1 of schedule 3 and item No1 of schedule 4 of Ext.A1 partition deed based on the boundaries mentioned therein. Therefore I find no reason to interfere with the direction for identification of the properties or the remand of the suits for that purpose. But it is made clear that Commissioner has to demarcate item No.1 and 2 F.A.0.No.116 & 122 of 2006 10 plaint schedule properties in O.S.538/1996, based on the boundaries mentioned in Ext.A1 and not based on the extent alone. Parties are directed to appear before the Munsiff Court, Thiruvalla on 16.3.2009. Appeals are disposed of accordingly. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006