IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 RSA.No. 301 of 2005() --------------------- (O.S 178 OF 1996 OF ADDITIONAL SUB COURT, NORTH PARAVUR) (A.S.147 OF 2002 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR) APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. ANANDAVALLY AMMA, AGED 63 YEARS, W/O. C.G.S.MENON, CHEMBAKASSERY HOUSE, PERUMPADANNA MURI, PARAVUR VILLAGE. 2. C.G.S.MENON, AGED 67 YEARS, S/O. GOVINDA PILLAI, CHEMBAKKASSERY HOUSE, PERUMPADANNA MURI, PARAVUR VILLAGE. BY ADV. SRI.T.K.VENUGOPALAN RESPONDENT(S): --------------- 1. RADHAMANI AMMA, AGED 61 YEARS, D/O. NANIKUTTY AMMA, ULLAYAM PILLY HOUSE, PERUMPADANNA MURI, PARAVUR VILLAGE. 2. NANUKUTTAN NAIR, AGED 59, S/O. NANIKUTTY AMMA, ULLAYAMPILLY HOUSE, PERUMPADANNA MURI, PARAVUR VILLAGE. 3. THANKAMANI AMMA, AGED 53, D/O. NANIKUTTY AMMA, ULLAYAMPILLY HOUSE, PERUMPADANNA MURI, PARAVUR VILLAGE. 4. VENUGOPALAN NAIR, AGED 43, S/O. NARIKUTTY AMMA, ULLAYAMPILLY HOUSE, PERUMPADANNA MURI, PARAVUR VILLAGE. ADV. SMT.P.K.RADHIKA THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.301 of 2005 ............................................ DATED THIS THE 14th DAY OF DECEMBER, 2011 JUDGMENT Defendants in O.S.178 of 1996 on the file of Sub Court, North Paravur are the appellants. Respondents are plaintiffs 2 to 5. The original first plaintiff died during the pendency of the suit and respondents were impleaded as his legal heirs. Suit was filed for declaration of title, fixation of boundary and permanent prohibitory injunction. Respondents contended that the plaint A schedule property belongs to the plaintiff as alloted to her under Ext.A1 partition deed as B schedule property and plaint B schedule property belongs to the appellants having alloted to them as A schedule property. Plaintiffs sought declaration of title and fixation of boundary, contending that the demarcating boundary is to be fixed and plaintiffs have title under Ext.A1. It was also contended that the plaintiffs had originally filed O.S.508 of 1992 before Sub Court, North Paravur for a permanent prohibitory injunction and as the appellants disputed the extent, boundary and title in their written statement, plaintiffs withdrew RSA 301/2005 2 the appeal and filed the present suit for declaration of title. Appellants resisted the suit admitting the right of the parties under Ext.A2 partition deed but contending that the description of the boundaries in the plaint A and B schedule properties are not correct. 2. Learned Munsiff, on the evidence granted a decree declaring the title of respondents to plaint A schedule property as demarcated by the Commissioner in Ext.C2 plan and directed fixation of the boundary as provided in Ext.C2 plan. A decree for permanent prohibitory injunction was also granted. Appellants challenged the decree before Additional District Court, North Paravur in A.S.147 of 2002. Learned Additional District Judge, on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial questions of law. “A) Whether on the facts and circumstances of the case, the lower appellate court was justified in RSA 301/2005 3 taking note of the court sale in favour of a stranger viz, the Federal Bank which is hit by section 52 of the Transfer of Property Act. B)Is it an invariable rule that the side measurements will prevail over the extent and boundaries of a property which are clearly described in the document of title. C) Whether on the facts and circumstances of the case, 2nd appellant has perfected the title by adverse possession. D) Whether on the facts and circumstances of the case, the court below was justified in giving relief to a larger extent of property than what is described in the plaint schedule. E) Whether on the facts and circumstances of the case, the courts below was justified in declaring the title of the plaintiff over the 77.180 cents of land in the absence of a claim in the plaint. F) Whether on the facts and circumstances of the case, the court below was right in re-fixing the boundary of the property in accordance with the Commissioner's plan overlooking the boundary fixed as per the title deed”. 4. Learned counsel appearing for appellants and RSA 301/2005 4 respondents were heard. Learned counsel appearing for appellants pointed out that decree granted by the trial court as confirmed by the first appellate court is in excess of the plaint A schedule property shown therein, evidently because the property as identified by the Commissioner and demarcated in Ext.C2 plan is the property for which the decree was granted. In view of the arguments, respondents filed I.A.2974 of 2011, an application for amendment of the plaint under Order VI Rule 17 of Code of Civil Procedure to amend the description of plaint A schedule property in accordance with the property shown by the Commissioner in Ext.C2 plan. The petition was opposed by respondents contending that it is belated. 5. It is clear from the records and evidence that parties proceeded with the trial on the understanding that plaint schedule property is as demarcated by the Commissioner in Ext.C2 plan. But respondents omitted to take note of the fact that the extent of plaint A schedule property is only 70 cents while as per Ext.C2 plan, the extent is 77.10 cents. In the light of this defect, respondents were compelled to file an application RSA 301/2005 5 under Order VI Rule 17 of Code of Civil Procedure. Considering the entire facts and circumstances of the case, for a proper resolution of the dispute involved in the case, opportunity is to be granted to respondents to amend the plaint as sought for. Hence I.A.2974 of 2011 is allowed. Respondents are permitted to amend the plaint as sought for. 6. But when the plaint is amended, necessarily an opportunity is to be granted to the appellants to file an additional written statement. Consequent to the amendment, it may be necessary to adduce evidence also. In such circumstances, suit is necessarily to be remanded to the trial court for fresh disposal. 7. In such circumstances, appeal is allowed and the decree granted by the courts below is set aside, in view of the amendment of plaint ordered as per I.A.2974 of 2011. O.S.178 of 1996 is remanded for fresh disposal to Additional Sub Court, North Paravur. Parties are directed to appear before the Additional Sub Court, North Paravur on 12.1.2012. Additional written statement, if any is to be filed by the appellants within seven days from the date of appearance. Learned Sub Judge to RSA 301/2005 6 dispose the suit afresh on merits before the closing of courts for summer vacation. Send back the records to the courts below immediately. No costs. M.SASIDHARAN NAMBIAR, JUDGE lgk