IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 SA.No. 378 of 1998(C) --------------------- [AS.NO.23/1995 OF SUB COURT, QUILANDY, OS.NO.27/1993 OF MUNSIFF-MAGISTRATE COURT, PERAMBARA] .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ----------------------------------------------------------------- 1. KALLANIKKAL MALATHI AMMA, D/O. VELAYUDHAN NAIR, AGED 42 YEARS, RESIDING AT OOLERI MALAYIL, KAYANNA AMSOM, CHERUKKAD DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT. 2. SON PRATHAPAN, S/O. RAJAN NAIR, AGED 22 YEARS, -DO-. BY ADVS. SRI.P.K.SURESH KUMAR, SMT.M.R.SREELATHA. RESPONDENT/APPELLANT/PLAINTIFF: -------------------------------------------------------- KALLANIKKAL NIRMALA AMMA, D/O. VELAYUDHAN NAIR, AGED 39 YEARS, RESIDING AT OOLERI MALAYIL, KAYANNA AMSOM, CHERUKKAD DESOM, QUILANDY TALUK, P.O. CHERUKKAD, KOZHIKODE DIST., BY ADVS. SRI.JOHNSON MANAYANI, SRI.NOBLE MATHEW. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A. NO.378/1998-C: ORDER ON C.M.P. NOS.1340/1998 & 1519/1998 IN S.A. NO.378/1998-C DISMISSED 04/02/2011. SD/- P.BHAVADASAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. ------------------------------------- SA No.378 of 1998 ------------------------------------- Dated this the 4th day of February 2011 Judgment The defendants, who suffered a decree at the hands of the first appellate court are the appellants before this court. 2. The plaintiff claimed to have obtained the plaint schedule property as per Ext.A1 partition deed dated 13.06.1975. The plaint schedule property is item No.3 in the partition deed. The first defendant is none other than the sister of the plaintiff and the second defendant is the son of the first defendant. The allegation was that they tried to trespass into the plaint schedule property and pluck coconut, which was successfully resisted by the plaintiffs. Since she apprehends further trouble from the defendants, the suit was laid. 3. The defendants resisted the suit. It was pointed out by them that the boundaries shown in the plaint SA 378/98 2 are not correct. A portion of the plaint schedule property is in the possession of the defendants. The attempt of the plaintiff is to reduce that property also into her possession. Even though there was a partition as alleged in the plaint, the first defendant was not a party to the same since she was not available in station. No property was allotted to her as per the partition deed. Later, her father, who was allotted item No.1 in the partition deed assigned a portion of his property to her as per Ext.B2. The defendants are in possession and enjoyment of the suit property. Refuting the allegation of attempt of trespass, they prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendants had DWs 1 and 2 examined and Exts.B1 and B2 marked. Exts.C1 and C2 are the commissioner's report and plan. SA 378/98 3 5. The trial court found that going by the description in the plaint, the total extent of the property is 4.32 acres. The plaintiff laid claim only to 3 acres. The three acres is shown as plot B in the commissioner's report. Unable to accept the claim on behalf of the plaintiff that A portion also belongs to her, the trial court dismissed the suit. 6. The plaintiff carried the matter in appeal as AS No.23/95 before the Sub Court, Quilandy. The lower appellate court chose to take a different view and came to the conclusion that there were sufficient materials to come to the conclusion that both A and B plots belong to the plaintiff as per Ext.A1. Accordingly, the judgment and decree of the trial court were reversed and the suit was decreed. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in this second appeal : I. Whether the lower appellate court was right in placing any reliance on the description of boundaries of the plaint SA 378/98 4 schedule property especially in view of the fact that the finding of the trial court that the description of boundaries given in Ext.A1 is totally shabby and undependable has not been reversed. II.Whether the lower appellate court ought not to have preferred the description of the extent of the plaint property made in Ext.A1 document, in the light of the fact that the description of boundaries therein is totally incorrect and unreliable and also in the light of the well settled principle of law that where there is conflict between description of extent and boundaries, the clearer and more specific one has to be accepted. III.Whether the rejection of oral evidence of PW1 by the lower appellate court was for any legally valid reason and whether such rejection was not in violation of the dictum laid down in the decision reported in 1989(2) KLT SN 26. IV.Whether the lower appellate court is right in placing reliance on the plan and report submitted by an advocate commissioner in a different suit without examining that SA 378/98 5 the commissioner as a witness ? V.Whether the lower appellate court was right in decreeing the suit without the plaintiff proving possession over the entire property claimed by adducing sufficient evidence. VI.Whether the lower appellate court has committed great error in not placing reliance on the dictum laid down in 1990(1) KLT 187, that effect has to be given to the intention of the parties and the description of the boundaries cannot be allowed to prevail.” 8. The learned counsel for the appellants pointed out that the lower appellate court was not justified in reversing the trial court judgment and decree. According to the appellants, the trial court had considered all the aspects of the case. The findings of the lower appellate court based on the documents produced before it without proof of the same are unsustainable in law. It is also pointed out that several statements made in the judgment of the lower appellate court are incorrect and the reference of boundaries by the lower appellate court does not tally SA 378/98 6 with the boundaries mentioned in Ext.A1. There was no justification to take a different view from the one taken by the trial court and the lower appellate court's decree is, therefore, unsustainable both on facts and in law. 9. As already noticed, the plaintiff traced her rights to Ext.A1 which is a partition deed of the year 1975. The suit was laid in 1993. Going by the extent available in Ext.A1 partition deed, the plaintiff has only three acres. The plaintiff sought to establish her case before the courts below to the effect that she had, in fact, obtained nearly 4.32 acres. The trial court on a meticulous consideration of the documents and considering the recitals regarding the boundaries in Ext.A1 and on a reading of Exts.A2 and A3, came to the conclusion that the plaintiff was unable to sustain her claim. 10. The lower appellate court thought otherwise. It seems that the lower appellate court has chosen to rely on the commissioner's report and plan. The question is how far the view taken by the lower appellate court is SA 378/98 7 justified. 11. The lower appellate court relies on the evidence of DW2 who is none other than the father of the plaintiff and the first defendant. He deposed that he had given only three acres of land to the plaintiff and that was given after measurement. He also stated that he held 8 acres of land as per Ext.A1 and that was planted with rubber. That is on the eastern side. It was reported by the commissioner in Ext.C2 plan that the plot on the eastern side contains rubber plantation. The lower appellate court drew inspiration from that statement to come to the conclusion that A plot must also belong to the plaintiff. The other materials which the lower appellate court relied on are Exts.A2 and A3. The lower appellate court finds that going by the boundaries mentioned in Exts.A2 and A3, it is clear that the entire plaint schedule property belongs to the plaintiff. 12. Going through Exts.A1, A2 and A3, it is difficult to accept the finding of the lower appellate court. SA 378/98 8 Ext.A2 is dated 12.11.1993 which is admittedly after the suit. That shows that one Thankamma had assigned property in favour of Muraleedharan. The lower appellate court was impressed by the fact that going by the commissioner's report and plan, it is seen that Muraleedharan's property is on the northern side of Plot A. But, it must be noticed that going by Ext.A1, Thankamma had sold two properties to be given to Muraleedharan. In fact, a reading of Ext.A2 does not disclose as to how those properties were obtained. 13. The trial court has come to the conclusion that based on Ext.A2, it could not be said that the entire plaint schedule property consisting of Plots A and B belong to the plaintiff. The next document which impressed the lower appellate court was Ext.A3. That is an assignment deed executed by one Bharathi in favour of Kunjiparyayi. Relying on the recitals of boundaries in the said document, the lower appellate court came to the conclusion that going by Ext.A3, the property on the eastern side belongs to the SA 378/98 9 plaintiff and so, the plaintiff is entitled to succeed. This view is also incorrect. 14. On an earlier occasion, the lower appellate court had accepted that the property on the eastern side was belonging to DW2, the father of the plaintiff. Then, it could not be said that going by Ext.A3, it would be evident that it was of the plaintiff. In fact, the trial court has considered this aspect also and has found against the plaintiff. Further, the trial court had considered Ext.A1 in its entirety and found that the recitals about the boundaries cannot be relied on as it do not appear to be correct. Significantly enough, even after claiming that she obtained 4.32 acres, in the plaint she has claimed only 3 acres. Further, she has obtained purchase certificate only for three acres. She has not produced any document to show that she has enjoyed more than 3 acres at any point of time. The plaint was also not amended showing the extent as 4.32 acres. It was the above fact which weighed before the trial court. There was no justification for the SA 378/98 10 lower appellate court to interfere with the said finding. The finding of the lower appellate court is though a question of fact and the conclusion arrived at seems to be totally unjustified. Going by the evidence on record, the findings appear to be perverse and unjustifiable. In the result, this appeal is allowed. The judgment and decree of the lower appellate court are set aside and that of the trial court are restored. There will be no order as to costs. P.Bhavadasan, Judge sta SA 378/98 11