IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 RSA.No. 502 of 2004() --------------------- O.S.NO.138 OF 1995 OF MUNSIFF COURT, VADAKARA AS.42/1998 of SUB COURT, VADAKARA .................... APPELLANT/RESPONDENT/PLAINTIFF: --------------------------------------------------- VALIYA KARUKAYIL CHANDRI, D/O. KUNHIRAMAN, AGED 63 YEARS, PUTHUPPANAM, VADAKARA. BY ADV. SRI.PULIKKOOL ABUBACKER SRI.MANSOOR.B.H. RESPONDENT(S): APPELLANT/DEFENDANT: ----------------------------------- VALIYA KARUKAYIL SREEDHARAN, S/O. CHATHAN, AGED 66 YEARS, PUTHUPPANAM, VADAKARA. ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.502 of 2004 ............................................ DATED THIS THE 13th DAY OF DECEMBER, 2011 JUDGMENT Plaintiff in O.S.138 of 1995 on the file of Munsiff Court, Vadakara is the appellant. Respondent is the defendant. Appellant instituted the suit seeking a decree for recovery of possession of plaint B schedule property on the strength of title contending that plaint B schedule property forms part of plaint A schedule property belonging to the appellant under Ext.A1 sale deed. Respondent, admittedly is in possession of plaint B schedule property. Respondent would contend that it is part of the property covered under Ext.B4, kanam kuzhikanam assignment deed obtained by his father and plaint B schedule property is part of the property covered under Ext.B4 and appellant has no title to that property. The property belonging to the appellant and the respondent admittedly originally belonged to Rayaran who obtained the property under Ext.B3 kanam kuzhikanam deed of 1923. Ext.B3 shows that property having a measurement of 32 X 58 six feet koles was obtained by Rayaran RSA 502/2004 2 on kuzhikanam right. Out of this property, Rayaran alienated the northern 32 X 3 ½ six feet koles, under Ext.B4 in favour of Chathan, the father of the respondent. After alienating the property covered under Ext.B4, what was left with Rayaran was only 32 X 54 ½ six feet koles. It was assigned by Rayaran in favour of Matha and others in 1928 under Ext.B6 assignment deed. The said property was later divided between Matha and others in 1934 under Ext.B7 partition deed. A schedule property, having a measurement of 32 X 30 ½ six feet koles was alloted to Matha, Mathu and Manikkam. That property was later divided in 1951 under Ext.B9 partition deed, between them. B schedule property therein was alloted to Mathu and A schedule to Manikkam. The properties were divided equally between them. The measurement of A schedule shown is 32 X 16 ¼ six feet koles. It is the same measurement shown for A schedule property. The property divided under Ext.B9, is the property alloted to Mathu and Manikkam under Ext.B7 partition deed as A schedule therein, which is only having 32 X 30 ½ six feet koles. Therefore, what could be divided equally between Mathu and Manikkam under Ext.B9 is only the said 32 X 30 ½ koles. If that RSA 502/2004 3 be so, instead of 16 ¼, what could be alloted to each of them is only 32 X 15 ¼ six feet koles. Out of the B schedule property obtained under Ext.B9, Mathu transferred plaint A schedule property in favour of Kunhiraman under Ext.A1 gift deed in 1964. In Ext.A1 gift deed, the property was described as 32 six feet koles 9 six feet koles on the east and 10 six feet koles on the west. Appellant would claim that on the death of Kunhiraman, his rights devolved on the appellant being sole daughter and thus she is entitled to the plaint A schedule property and plaint B schedule property forms part of the said property. 2. Respondent resisted the suit contending that what could be divided between Mathu and Manikkam is only the property alloted under A schedule of Ext.B7 partition deed and while dividing the property, they have shown more extent than what was available to them and therefore appellant cannot claim title to plaint B schedule property, which does not form part of the property alloted as A schedule of Ext.B7 partition deed and plaint B schedule property forms part of the property belonging to Chathan, the father of the respondent under Ext.B4 sale deed. 3. Learned Munsiff, on the evidence, granted a decree in RSA 502/2004 4 favour of the appellant finding that plaint B schedule property forms part of plaint A schedule property and appellant has title to the property under Ext.A1 and B9 partition deed. Respondent challenged the decree before Sub Court, Vadakara in A.S.42 of 1998. Learned Sub Judge, on re-appreciation of the evidence, found that the entire dispute arose on account of the excess measurement shown, while A schedule property covered under Ext.B7 partition was divided later under Ext.B9 partition deed and what could be divided between Mathu and Manikkam is only the property having a measurement of 32 X 30 ½ six feet koles alloted to them under Ext.B7 and if that was equally divided between Mathu and Manikkam under Ext.B9, the property which would be available to each of them cannot be 32 X 30 ½ six feet koles as seen in Ext.B9, but only a lesser extent by 32 X 2 six feet koles. Learned Sub Judge, based on the evidence found that plot B marked by the Commissioner in Ext.C4 plan is not part of plaint A schedule property obtained under Ext.A1. The learned Sub Judge relied on the revetment seen on TM line the southern boundary of the disputed plot B to hold that the property which lies to the north of TM line was the property alienated by Rayaran RSA 502/2004 5 under Ext.B4 and therefore plot B forms part of that property and appellant cannot claim title to the plaint B schedule property. Appeal was allowed and the decree granted by the trial court was set aside. The said decree is challenged in the second appeal. 3. Learned counsel appearing for appellant and learned counsel appearing for the respondent, who appeared as notice was issued in the application filed under Section 5 of the Limitation Act to condone the delay in filing the appeal, were heard. 4. Learned counsel appearing for appellant argued that first appellate court did not properly appreciate the evidence and omitted to take note of the fact that property was measured, when the properties were divided under Ext.B9 partition deed, and at the time of measurement, it was found that A schedule property which was alloted under Ext.B7 partition deed is having more extent than what is shown in Ext.B7 and therefore the actual measurement was shown in Ext.B9 and as Mathu and Manikkam had title to that property, they divided the property under Ext.B9 and after proper measurement, showing the side measurements, plaint A schedule property was gifted in favour of RSA 502/2004 6 the father of the appellant under Ext.A1 gift deed and therefore, first appellate court should have found that plot B marked by the Commissioner in Ext.C4 plan forms part of the property covered under Ext.A1 and therefore, appellant has title to the property. Learned counsel argued that if the property is to be fixed with reference to the measurements shown in Ext.B3, then the property which should be available to the respondent under Ext.B4 could only have a north-south measurement of 6 ½ six feet koles and if that be so, it should only extend upto CD line marked by the Commissioner further north of the TS line marked in Ext.C4, and in such circumstances, it should have been found that the measurement shown in Ext.B3, B6 and B7 are not correct and when the property was divided under Ext.B9, it was properly measured and the actual extent available was divided and therefore appellant has title to the said property. Learned counsel argued that the granite stones found on TM line by the Commissioner in Ext.C2 plan, should not have been accepted by the first appellate court as the separating boundary of the property covered under Ext.B4 from the southern property, which was later alienated under Ext.B6 and therefore first appellate RSA 502/2004 7 court was not justified in reversing the decree. Learned counsel also submitted that even if first appellate court found that the identification of the property by the Commissioner in Ext.C4 plan is not correct, as the properties were not properly measured and identified, the suit should have been remanded for proper identification. Learned counsel therefore argued that the decree of the first appellate court is not legally sustainable. 5. Appellant is claiming title to plaint A schedule property contending that plaint B schedule property forms part of plaint A schedule property, based on Ext.A1 gift deed executed by Mathu, who in turn obtained exclusive title under Ext.B9 partition deed. The property alloted to Mathu under Ext.B9 is B schedule property therein. The property which was divided under Ext.B9 is the property which was jointly alloted to Mathu and Manikkam under Ext.B7 partition deed, as A schedule property therein. The property which was divided under Ext.B7 partition deed is the property which was obtained by Mathu and others under Ext.B6 assignment deed. The property which was assigned under Ext.B6 is part of the property which was obtained by Rayaran under Ext.B3. Before the property covered under Ext.B6 was alienated RSA 502/2004 8 by Rayaran, he had alienated the northern property covered by Ext.B3, under Ext.B4 in 1925, in favour of Chathan, the father of the respondent. Ext.B4 shows that the property so alienated was having the measurements 32 X 3 ½ six feet koles. Therefore what was left with Rayaran out of Ext.B3 property, after Ext.B4 alienation, is only 32 X 54 ½ six feet koles. It is that property which was later divided under Ext.B7 partition deed. There is no dispute with regard to the east-west measurement of 32 six feet koles. The dispute is only with regard to north south measurement. When under Ext.B6, the property alienated was having north south measurement of 54 ½ six feet koles and it was divided under Ext.B7, as A schedule property having north south measurement of 30 ½ six feet koles was alloted to the share of Mathu and Manikkam. It is that property which was divided under Ext.B9 in 1951. If that be so, as rightly found by first appellate court, what could be divided is only the property having north south measurement of 30 ½ koles and if that property is divided into two equal halves, the north south measurement which would be available to be alloted to Mathu as B schedule could not be 16 ¼ six feet koles but could only be 15 RSA 502/2004 9 ¼ koles. Therefore, though what was available under Ext.B7 to Mathu and Manikkam could only be the property having north south measurement of 30 ½ koles under Ext.B9, an excess 2 six feet koles north south measurement was divided and alloted to Mathu and Manikkam. It is portion of that property, which was later gifted under Ext.A1 in favour of Kunhiraman which is claimed by the appellant. As rightly found by first appellate court, when Mathu and Manikkam could not have divided the property in excess of what was obtained by them under Ext.B7, under Ext.A1, more extent could not have been transferred in favour of Kunhiraman and if so, based on that gift deed, Kunhiraman cannot claim excess extent and if so, based on Ext.A1 gift deed, appellant cannot claim title to plaint B schedule property. 5. As stated earlier, Rayaran had alienated the property covered under Ext.B4 in 1925 earlier to the alienation in favour of Mathu and others under Ext.B6 in 1928. A reading of Ext.B4 establishes that the property which was alienated thereunder, was the northern property enclosed by a granite compound wall. Therefore, irrespective of the measurements or the boundaries, the southern boundary of tak No.1 of Ext.B4 property could only RSA 502/2004 10 be the said granite wall. First appellate court, based on Ext.C2 report and C1 plan, found that Commissioner even in Ext.C2 reported existence of granite wall on TM line and it is the very same line which is fixed by the Commissioner in Ext.C4 plan as the southern boundary of plot B. The existence of the old granite wall on TM line, strengthens the finding of the first appellate court that the property which was obtained by the father of the respondent under Ext.B4 extends upto TM line. If that be so, as rightly found by first appellate court, plot B could only be part of the property covered under Ext.B4 and not part of the property assigned under Ext.B6. That property could only be the property which lies further towards the south of TM line and if so, what could be divided under Ext.B7 and B9 could only be the property which lies to the south of TM line and if so, based on Ext.A1, appellant cannot claim title to plot B. In the light of these factual findings, I do not find any substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk