IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 AS.No. 188 of 2001() -------------------- OS.116/1996 of ADL.SUB COURT, THALASSERY .................... APPELLANT/PLAINTIFF ---------------------------------- POTHILOTT ASARINTEWETE SEKKINA D/O.MAMMUTTY, 37 YEARS, NO OCCUPATION KOHINOOR, CHALLAYIL HOUSE, CHOKLI AMSOM PRINGADI DESOM, THALASSERY TALUK BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENT/DEFENDANT: --------------------------------------- MOULANA ASAD FOUNDATION (REGD) PERINGADI BY ITS GENERAL SECRETARY CHOKLI AMSOM, PERINGADI DESOM THALASSERY TALUK ADV. SRI.P.M.PAREETH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/08.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.188 of 2001 ------------------------------------- Dated this the 23rd day of August 2011 Judgment The disappointed plaintiff has come up in appeal. Her suit was dismissed by the court below. 2. The plaintiff claimed to be the absolute owner of plaint A schedule property and according to her, B schedule is a portion of A schedule which she obtained under Ext.A1 jenm deed dated 23.2.1994. Plaint C schedule property is a portion of the property which has been trespassed upon by the defendant and he has put up illegal construction there. According to the plaintiff, the defendant own property on the eastern side of the plaint schedule property. On the basis of these allegations, the suit was laid for necessary reliefs. 3. The defendant resisted the suit. He pointed out that both the plaintiff as well as the defendant obtained the respective properties of 7 and 3 cents from the very same predecessor-in-interest namely U.C.Matha, who AS 188/01 2 obtained 10 cents as kudikidappu right. According to the defendant, he purchased three cents and after complying with necessary formalities, put up a structure there. He would assert that at the time of sale, the respective properties were measured and a fresh measurement is unnecessary. Pointing out that he has not trespassed into any portion of the property owned and possessed by the plaintiff, he 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 PWs 1 and 2 and document marked as Ext.A1 from the side of the plaintiff. The defendant had Dws 1 to 3 examined and Exts.B1 to B13 marked. Exts.C1 to C4 are the commissioner's reports and plans. 5. The lower court, on an appreciation of the evidence in the case, found that the suit was a frivolous one and dismissed the same, granting compensatory costs to the defendant. Hence the plaintiff before this court. AS 188/01 3 6. The learned counsel for the appellant pointed out that the court below was not justified in dismissing the suit. The court omitted to notice that apart from the prayer for recovery of possession, there was also a prayer for fixation of boundary on the eastern side of the plaintiff's property. Even conceding that the plaintiff is entitled to only 7 cents, still the eastern boundary is to be fixed and at least to that extent, the suit had to succeed. 7. The learned counsel for the respondent, on the other hand, pointed out that it is clear from the respective documents that what the parties obtained was 7 cents and 3 cents respectively and the side measurements shown cannot be given much importance. The learned counsel pointed out that the court below has found that there is no trespass by the defendant and that the construction is made by him within the three cents obtained by him. 8. After having heard both sides and gone through the records, it is found that there is some AS 188/01 4 substance in the grievance voiced by the plaintiff. It is true that Matha, the predecessor-in-interest of the plaintiff and defendant had obtained only 10 cents as kudikidappu right. On his death, the property devolved on his legal heirs. The defendant stated that he purchased the property and put up a building there. Both the title deeds of the plaintiff as well as the defendant show the side measurements. Going by the side measurements, both have excess property. The lower court was inclined to take the view that the side measurements cannot be given much importance because it is not discernible, from where the measurements were obtained. It, therefore, went on the premises that the plaintiff and the defendant had only 7 cents and 3 cents respectively. It also relied on the stray sentence in the evidence of PW1 that there is a boundary separating the two properties. The court below went on to hold that since the documents of title of both the parties specify the extents, they are entitled only to those extents of properties. The court below found the commissioner's AS 188/01 5 report to be unsatisfactory and that was one of the grounds on the basis of which the suit was dismissed. It appears that before the lower court, the Village Officer, who claimed to have measured the property was examined as DW1, but no sketch prepared by him was produced before court. The court below had before it only Exts.C4 plan and C3 report. In Ext.C4 plan, the commissioner has identified ABCD as the plot belonging to the plaintiff and BCEF to that of the defendant. It is true that plot ABCD has more extent than 7 cents. The lower court has applied the principle that going by the extents mentioned in the documents, the plaintiff can claim only 7 cents and the defendant, only 3 cents. Going by Ext.C4 plan, it can be seen that the construction made by the defendant is exclusively confined to the property obtained by him which is 3 cents in extent. It is also significant to notice that according to the commissioner, the disputed portion is EHDGHC which falls within the three cents assigned to the defendant. To that extent, the lower court was correct in saying that the plaintiff cannot have AS 188/01 6 any manner of right. The defendant can also have no grievance because, from the sketch, it is clear that the construction is within the property obtained by him. 9. However, the dismissal of the suit as a whole does not appear to be correct. There is a prayer for fixation of boundaries. As far as the fixation of boundaries is concerned, going by Ext.C4 plan, neither of the parties can have any grievance in fixing the boundary along BC line. As already noticed, there is slight increase in the property conveyed to the plaintiff. The claim of the plaintiff that there was a construction by the defendant, trespassing into the plaint schedule property is belied. By adopting this plan, the controversy of fixation of boundary can be given a quietus. In the result, this appeal is partly allowed setting aside that part of the decree of the lower court declining to fix the eastern boundary of the plaint schedule property. Ext.C4 plan is accepted for that purpose and the boundary AS 188/01 7 may be fixed along BC line. Ext.C4 shall form part of the decree. No order as to costs. P.Bhavadasan, Judge sta AS 188/01 8