IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 SA.No. 452 of 2000(D) --------------------- AS.172/1989 of II ADDITIONAL DISTRICT COURT, THRISSUR OS.1039/1983 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANT(S)/APPELLANTS/DEFENDANTS 1 TO 5: -------------- 1. MARY, W/O.THARAKAN DEVASSY, CHETTUPUZHA DESOM, PULLAZHI VILLAGE, THRISSUR TALUK. 2. ELSY, D/O.THARAKAN DEVASSY, -DO- -O- 3. BABY, D/O.THARAKAN DEVASSY, RESIDING AT T.D.BABY, W/O.JOSE, S/O.EDAKALATHUR RAPPAI, PAVARATTI P.O., PAVARATTY 680 507. 4. PAULSON, S/O.THARAKAN DEVASSY, -DO- -DO- 5. JOISY, D/O.THARAKAN DEVASSY, -DO- -DO- BY ADV. SRI.JIJO PAUL RESPONDENT(S)/RESPONDENTS/PLAINTIFF AND DEFENDANTS 6 TO 10: --------------- 1. FRANCIS, S/O.THARAKAN KOCHUPALU, CHETTUPUZHA DESOM, PULLAZHI VILLAGE, TRICHUR TALUK. (*)2. KURIAN, S/O.THARAKAN KOCHUPALU, KARIATTUKARA DESOM, ARANATTUKARA VILLAGE, TRICHUR TALUK. (DELETED) 3. KUNJANNAM, D/O.THARAKAN KOCHUPALU, CHAZHOOR VILLAGE & DESOM, TRICHUR TALUK. (*)4. VARKEY, S/O.THARAKAN KOCHUPALU, KARIATTUKARA DESOM, ARANATTUKARA VILLAGE, TRICHUR TALUK (DELETED) 5. MARY, D/O.THARAKAN KOCHUPALU & W/O.NEELANKAVIL YACOB, RESIDING AT NALLANKARA, NETTISSERY VILLAGE, NETTISSERY 680 057. SA 452/2000 2 (**)6. ROSY,D/O.THARAKAN KOCHUPALU, RESIDING AT REV. Sr.ROSE THARAKAN, LITTLE FLOWER CONVENT, CHELAKKARA. (DELETED) (*)THE NAMES OF R2 AND R4 ARE DELETED FROM PARTY ARRAY AS PER ORDER DATED 30.3.2001 IN CMP NO.664/2001. (**)THE NAM OF RESPONDENT NO.6 IS DELETED FROM PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 25.6.2002 IN CMP NO.1079/2002. ADV. SRI.P.RAMAKRISHNAN FOR R1 SRI.PREETHY RAMAKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.452 of 2000 -------------------------------------- Dated this the 12th day of March, 2009. JUDGMENT The substantial questions of law raised for a decision are:- (i) Were not the courts below in error in decreeing a suit for fixation of boundaries and consequential injunction when not even the Will under which the properties devolved on the parties was produced before the court? (ii) Were not the courts below in error in accepting the commission report which based its conclusion on an unprobated Will which was not even produced before the court below but was produced before the commissioner at the time of inspection? (iii) Were not the courts below in error in holding that the discrepancies brought out by the defendants on the part of the commissioner and surveyor in the commission report were 'minor' when in fact, they were very major and serious and was fatal to the case of the plaintiffs? (iv) Were not the courts below in error in fixing the boundaries on the basis of the possession alone, which is in dispute, when the best evidence i.e., the Will, was suppressed by the plaintiffs? SA No.452/2000 2 2. Parties are referred to as plaintiff and defendants as in the trial court for convenience. The suit is for fixation of the boundary of the suit property described as 1.54 ¼ acres of land in Survey Nos.577/1, 578/1 & 2 and 579 /1 & 2 of Pullazhi Village. That property along with other items belonged to Tharakan Kochupalu whose wife is defendant No.11. They have seven children. Defendants 1 to 5 are the legal representatives of Devassy, a pre-deceased son of Tharakan Kochupalu and defendant No.11. Plaintiff is another son of Tharakan Kochupalu and defendant No.11. Defendant Nos.6 to 10 are also legal representatives of Tharakan Kochupalu. According to the plaintiff, Tharakan Kochupalu executed a registered Will on 3.9.1972 bequeathing the C schedule in the said Will to him which is described in the plaint schedule. The A schedule in the Will was bequeathed to Devassy, the predecessor-in-interest of defendant Nos.1 to 5. Tharakan Kochupalu died on 6.1.1974. Plaintiff wanted the boundary of the suit property to be fixed. Defendant Nos.1 to 5 filed written statement admitting the execution of the Will but contending that defendant Nos.1 to 5 are in possession of the property bequeathed to them even before the death of Devassy. They pleaded that there was an oral partition effected on 8.4.1959 on the basis of which properties are being possessed by the respective sharers. They disputed the description and extent of the properties stated in the plaint schedule. They were however, agreeable for measurement of the entire properties and fixation of all boundaries. The advocate commissioner inspected the property and prepared a report and plan - Exts.C1 and C2. Learned Munsiff accepted the case of the plaintiff and granted a decree as prayed for. First SA No.452/2000 3 appellate court confirmed the judgment and decree rejecting the contention of appellants/defendant Nos.1 to 5 regarding the acceptability of Exts.C1 and C2. Hence, this Second Appeal. 3. It is contended by the learned counsel for appellants/defendant Nos.1 to 5 that the properties belonging to the appellants/defendant Nos.1 to 5 and respondent No.1/plaintiff are not properly identified. Learned counsel pointed out that even the first appellate court was not satisfied with the identify of the properties and observed in paragraph 20 of the judgment that the properties are substantially identified which according to the learned counsel, is not sufficient to order fixation of the boundary. Learned counsel took me through the evidence of DW1, the advocate commissioner and DW2, the Taluk Surveyor. Learned counsel for respondent No.1/plaintiff supported the finding of the courts below. 4. A suit for fixation of the boundary is one coming under Section 9 of the Code of Civil Procedure being a suit of civil nature but, the boundary cannot be fixed as a short cut to overreach other contentions regarding title and possession. It has been so held in Bapputty @ Sydali v. Cheriakutty @ Veerankhani Rawther (1990(1) KLJ 218). It was held in that decision that: SA No.452/2000 4 “Fixing boundaries and then directing the parties to settle their disputes including the correctness of the boundaries elsewhere is not a decision at all.” Therefore, boundary could be fixed only after settling other disputes between the parties as to title and possession. 5. Though the Will under which the parties claimed title and possession of the properties is admitted by the contesting parties, that document is not produced in the case and going by the evidence of DWs 1 and 2, it does not also appear that the property of respondent No.1/plaintiff was measured with reference to the said Will. DW2, the Taluk Surveyor stated that he measured the property as per the direction of the advocate commissioner (DW1) but, he was not given any document pertaining to the title. According to DW2, the documents were with the advocate commissioner. DW1 stated that he identified possession of the property based on what the (contesting) parties told him, but it is not so stated in his report . Dw1 is sure that he had not referred to the schedule of the Will. There is therefore merit in the contention of the contesting defendants that the measurement was not based on the Will or any other document of title. SA No.452/2000 5 6. Exts.B1 to B3 are the field maps produced by appellants/defendant Nos.1 to 5. It is admitted by DW2, the Taluk Surveyor that the measurements in Ext.C2, plan do not tally with Exts.B1 to B3. DWs 1 and 2 stated that the total extent of the property comprised in each survey number was not ascertained. DW1 does not know whether the measurements (in Ext.C2) tallied with Exts.B1 to B3. He has also stated that the measurement of the property comprised in survey No.577 (in which both parties are claiming right) has not been shown. According to DW2, the Village records were not sufficient to show the extent of the properties claimed by the contesting parties. There was physical boundary at the spot, but measurements on the basis of physical boundary did not tally. Some of the survey stones could not be seen at the spot. DW2 fixed the stones after the measurement but that was on the survey boundary. According to DW3, she did not get the property as per entitlement (as per Will) in survey No.577/1. Thus, evidence of DWs 1 and 2 would show that there was no proper measurement of the property. Instead, the property found in the possession of the plaintiff as pointed by him was measured and boundary stones were fixed on the physical boundary as claimed by the plaintiff. It has also come in evidence that the property belonging to and in the possession of appellants/defendant Nos.1 to 5 was not measured. In these circumstances, based on Ext.C2 and that too, only in respect of the property claimed by respondent No.1/plaintiff, boundary cannot be fixed. SA No.452/2000 6 7. It is pointed out by the learned counsel for appellants/defendant Nos.1 to 5 that though in the first appellate court an application was made to set aside Exts.C1 and C2, the first appellate court has not passed any order thereon. In the light of the circumstances stated above boundary cannot be fixed based on Exts.C1 and C2. What the learned Additional District Judge stated in paragraph 20 of the judgment with reference to the dispute regarding the measurement is that: “Going by the circumstances in the light of Ext.B1 to B3 and Ext.C2 it has to be found that the substantial identity of the property has been arrived at by the Commissioner with the available data and as such infirmities shown to Ext.C1 and C2 by the appellants before this court are to be eschewed.” (underline supplied) Based on “substantial identity” of the property boundary cannot be fixed. Boundary has to be fixed after settling all disputes as to title and possession. That has not been done in this case. Hence the judgment and decree of the courts below cannot be sustained and are liable to be set aside. But, in the light of the contentions raised by the parties, boundary between the properties of appellants/defendant Nos.1 to 5 and respondent No.1/plaintiff has to be fixed. Hence, it has become necessary to send back the case to the trial court for SA No.452/2000 7 proper measurement of the properties of the plaintiff and defendant Nos.1 to 5 with reference to the relevant records including the title deed relied on by the parties and to arrive at a proper decision as to the boundaries. (Counsel for defendant Nos.1 to 5 submitted that measurement of the other properties referred to in the Will is not required - that matter is left for the decision of the trial court). Learned Munsiff is directed to expedite the disposal of the suit since it is of the year 1983. It is open to the learned Munsiff to consider whether, if the dispute is only between the plaintiff and defendant Nos.1 to 5, presence of the parties who are deleted from the array in this appeal is necessary. The Second Appeal is allowed. Judgments and decrees under challenge are set aside. Case is remanded to the court of learned Munsiff for fresh disposal in the light of the observations made above. Parties shall appear in that court on 6.4.2009. Registry is directed to send the records to that court forthwith. No costs. C.M.P.Nos.1215, 1221 and 1546 of 2000 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.452/2000 8 Thomas P.Joseph, J. S.A.No.452 of 2000 JUDGMENT 12th March, 2009.