IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 SA.NO. 473 OF 1996(F) ---------------------------------- AS.138/1987 OF I ADDL.SUB COURT,TRIVANDRUM OS.721/1980 OF PRL.M.C.,TRIVANDRUM .................... APPELLANT(S) – APPELLANTS 1 & 3 TO 5 – PLAINTIFFS 1 & 3 TO 5: ------------------------------------------------------------------------------------- 1. CHELLAPPAN KAMALASANAN, NAMBIVILAKATHU VEEDU, VALLUVEETTU MURI, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM (DIED) 2. CHELLAPPAN SURENDENDRAN, RESIDING AT DO. DO. DO. 3. JANAKI SOUDAMINI, DO. DO. 4. JANAKI RAMANI, DO. DO. ADDITIONAL APPELLANTS IMPLEADED: --------------------------------------------- 5. AMMINI, W/O. LATE KAMALASANAN, KUNNIL VEEDU, PERUNGAZHI, THIRUVANANTHAPURAM. 6. SHAJI, S/O. DO. DO. DO,. 7. SHIBU, S/O. DO. DO. DO. 8. SHINI, D/O. DO. DO. O. ADDITIONAL APPELLANTS 5 TO 8 ARE IMPLEADED AS THE LRS. OF THE DECEASED FIRST APPELLANT VIDE ORDER DATED 13.7.2009 IN I.A.1341/06. BY ADV. SRI G UNNIIKRISNAN SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. SRI.SATHEESH T.S. (ADDL. APPELLANTS 5 TO 8) RESPONDENT(S) – RESPONDENTS 2 TO 5 & 2ND APPELLANT - DEFENDANTS 2 TO 5 & 2ND PLAINTIFF (DEFENDANT NO.1 DIED PENDING A.S. NO.138 OF 1987): ------------------------------------------------------------------------------- 1. KOCHUMMINI RAJAMMA, SARASWATHY VILASOM BUNGLOW, VALLUVEETTU MURI, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM. 2. KOCHUMMINI SAROJINI OF DO. DO. 3. KOCHUMMINI PONNAMMA OF DO. DO. 4. CHELLAPPAN VALSALAN, VAYLINKATHIYA VEEDU, VALLUVEETTU MURI, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM (DIED) 5. CHELLAPPAN RAJENDRAN, NAMBIVILAKATHU VEEDU, VALLUVEETTU MURI, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM (PRESENTLY RESIDING AT C.J.S. BHAVAN, PEROORKADA, THIRUVANANTHAPURAM (DIED) ADDITIONAL RESPONDENTS IMPLEADED: ------------------------------------------------- 6. SARADA, W/O. LATE VALSALAN, C/O. AMBUJAKSHY, KOSLA GUNDA, OLD POST OFFICE JUNCTION, 13-7-921, LOWER THIRUPATHI, THIRUPATHI. 7. RAJU, S/O,. VALSALAN, C/O.JAYA GANGAN, NO.256, PERUMALKOIL STREET, MADURA ROYAL, CHENNAI – 602 102. 8. AMMUKUTTY, D/O. SARADA, KOSLA GUNDA, OLD POST OFFICE JUNCTION, 13-7-921, LOWER THIRUPATHI, THIRUPATHI. ADDITIONAL RESPONDENTS 6 TO 8 ARE IMPLEADED AS THE LRS. OF THE DECEASED FOURTH RESPONDENT VIDE ORDER DATED 13.7.2009 IN I.A.1339/2006. 9. VILASINI, ROADARIKATHU PUTHEN VEEDU, KARINGALUMOODU, MANNAMKONAM P.O. 10. SUNIL RAJ, AGED 17 YEARS (MINOR) RESIDING AT DO. DO. REPRESENTED BY HIS MOTHER AND GUARDIAN SMT. VILASINI. 11. SABITHA RAJ, AGED 11 YEARS (MINOR) REPRESENTED BY HER MOTHER AND GUARDIAN SMT. VILASINI. ADDITIONAL RESPONDENTS 9 TO 11 ARE IMPLEADED AS THE LRS. OF THE DECEASED FIFTH RESPONDENT VIDE ORDER DATED 13.7.2009 IN I.A. 1343 OF 2006. ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY FOR SRI.PIRAPPANCODE V.S.SUDHIR FOR SRI.KISHOR RAJ FOR ADDL.R6-8 THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO. 473 of 1996 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9th day of October, 2009 J U D G M E N T --------------------- Heard learned counsel for additional appellants and respondent No.1. 2. This Second Appeal is brought from the judgment and decree of learned First Additional Sub Court, Thiruvananthapuram in A.S. No.138 of 1987 confirming dismissal of O.S. No.72 of 1980, a suit for declaration of title and fixation of boundary brought by deceased appellant No.1. Parties are referred to as plaintiffs and defendants as in the trial court. 3. Plaintiffs claimed that themselves and defendant No.5 are children of defendant No.1. A total extent of 32 cents including the suit property (eight cents) originally belonged to Krishnan Kochummini, father of defendant Nos.1 to 4. He hypothecated the said property to Ramalinga Nayanar Pandit and following that, one Velayudhan Pandit and others filed O.S. No.871 of 1106 M.E. and got decree in their favour. In execution of that decree, 16 cents towards the southern side out of the total 32 cents was sold in court auction on 12.5.1951 and the decree holders took delivery of that 16 cents on 11.11.1953. The remaining northern 16 cents continued to be in the S.A. No.473 of 1996 -: 2 :- possession of Krishnan Kochummini. While so, Velayudhan Pandit sold the southern 16 cents to defendant No.1 as per Ext.A2, sale deed No.3668 of 1960. Defendant No.1 sold 8 cents towards the northern portion of said 16 cents (which is towards southern side of total 32 cents) to the plaintiffs and defendant No.5 as per Ext.A3, sale deed No.1650 of 1962. Krishnan Kochummini is no more. Sixteen cents on the north is in the possession of defendant Nos.1 to 4. Northern boundary of the suit property (8 cents) is the boundary of southern property of defendant Nos.1 to 4. They obstructed the boundary and hence suit for declaration of title and fixation of northern boundary of 8 cents. 4. Defendant Nos.2 and 3 resisted the suit contending that no portion of 32 cents was sold in court auction. It is incorrect to say that Velayudhan Pandit got title and possession of any portion of the said 32 cents or that 16 cents was sold to defendant No.1. At any rate that sale is not valid. Entire 32 cents is lying as a single compact area and is in the possession of defendant Nos.2 and 3. Plaintiffs or defendant No.5 have no right, title interest or possession over the suit property. They also raised a contention that claim if any of plaintiffs and defendant No.5 over the suit property is lost by adverse possession S.A. No.473 of 1996 -: 3 :- and limitation. 5. Learned munsiff found that there is no proper identification of the disputed 8 cents, possession of plaintiffs and defendant No.5 is not proved and dismissed the suit which the first appellate court confirmed. Hence this Second Appeal. 6. Substantial questions of law raised in the appeal memorandum are whether defendant Nos.2 and 3 being legal heirs of judgment debtor in Ext.A1 proceeding are bound by the same and whether dismissal of the suit for declaration of title merely because boundary has not been identified is contrary to law? 7. I referred to the respective contentions raised by the parties. Exhibit A1, delivery kaichit in O.S. No.871 of 1106 M.E. is in respect of 16 cents towards southern portion of total 32 cents in Sy. No.3572 and Ext.A1 states that the said 16 cents was delivered over to Ramalingam Nayanar Pandit and others. Exhibit A2 is the sale deed regarding the southern 16 cents in favour of defendant No.1. Exhibit A3 is the sale deed executed by defendant No.1 in favor of plaintiffs and defendant No.5 regarding the 8 cents stated to be situated towards northern portion of 16 cents covered by Ext.A2. Exhibit A4 is a receipt for payment of revenue dated 23.6.1980 produced by the S.A. No.473 of 1996 -: 4 :- plaintiffs to show that mutation has been effected in their name and that they are paying revenue. But plaintiffs did not take out a commission to identify the suit property in spite of vehement dispute raised by defendant Nos.2 and 3. At the instance of defendant Nos.2 and 3, an Advocate Commissioner was appointed. Exhibits C1 and C1(a) are the report and plan prepared by the Advocate Commissioner. Commissioner has reported that there is no such plot as 8 cents described in the plaint schedule and that the actual extent of the property which belonged to Krishnan Kochummini is 25 cents lying as a compact plot with compound walls on all sides. It has also come in evidence that though in Ext.A1 it is stated that there is a pathway having width of 8 feet towards the northern side of the 32 cents Exhibit A1 states that 16 cents is towards southern side of 16 cents which belonged to the defendants in O.S. No.871 of 1106 M.E and that there is a road on the northern side of the 32 cents. But the Advocate Commissioner could not find any such road. 8. So far as Ext.A2, sale deed in favour of defendant No.1 is concerned 16 cents is described as lying lengthwise in north-south direction. That description did not tally with the description in Ext.A1 as found by the courts below. In Ext.A3, suit property (8 cents) is S.A. No.473 of 1996 -: 5 :- described as situated towards east of 32 cents and lying lengthwise in north-south direction. That is not consistent with the description in Exts.A2 and A3. Plaintiff No.5 as P.W.1 stated that property measuring 8 cents (after sale of 8 cents to the plaintiffs and defendant No.5 as per Ext.A3) has been sold by defendant No.1 to a stranger but she does not know to whom that sale is made. P.W.1 was also not able to give any definite idea about the suit property stated to be covered by Ext.A3. P.W1 also admitted that entire property is bounded by compound walls on all sides. Courts below found that there is no evidence to show that plaintiffs are in possession of the suit property and that mere fact that mutation was effected or they paid revenue for the 8 cents are not by itself sufficient to say that possession is with plaintiffs. It is on the above findings that the suit was dismissed and dismissal was confirmed by the first appellate court. 9. Before relief of fixation of boundary is prayed for, all other disputes regarding title, possession, etc., are to be settled. Fixation of boundary cannot be a short cut to over-reach the property in the possession of others. Suit for mere fixation of boundary does not contemplate dispute regarding title, ownership, etc. In Bapputty @ Sydali v. Cheriakutty @ Veerankhani S.A. No.473 of 1996 -: 6 :- Rawther (1990 (1) KLT 218) it is observed in paragraph 6 that, “I fail to understand how the courts below thought of a tentative fixation of boundaries liable to be varied later. The suit ought to have been dismissed by the courts below at least on the ground that necessary parties are not in the array. Even otherwise, such a suit is not maintainable without a cause of action. So also, fixation of boundaries in such a suit could only be alter setting various other disputes as to title and possession put forward by the appellants. Fixation of boundary cannot be a short cut to overreach such contentions. Fixing boundaries and then directing the parties to settle their disputes including the correctness of the boundaries elsewhere is not a decision at all”. 10. In this case mere fact that along with the prayer for fixation of boundary a declaration of title is also prayed for does not salvage the situation since it is not shown that the disputed property is in the possession of plaintiffs and defendant No.5 and there is no prayer for recovery of possession. Proper remedy of plaintiffs, if they S.A. No.473 of 1996 -: 7 :- are otherwise entitled to is to sue for declaration of title, recovery of possession and such other reliefs as they are entitled to. At this stage learned counsel for plaintiffs submitted that even de hors Ext.A3, plaintiffs are co-owners with defendant Nos.2 and 3 and others consequent to the death of defendant No.1 who acquired title and possession of 16 cents as per Ext.A2 and hence plaintiffs are entitled to seek for appropriate reliefs. Learned counsel for defendant No.2 pointed out that though defendant Nos.2 and 3 have raised a plea of adverse possession and limitation that has not been considered by the courts below and in case plaintiffs file fresh suit on title, their right to raise the plea of adverse possession and limitation may be preserved. 11. On the facts of this case I find that no substantial question of law is involved. Courts below on the facts and circumstances of the case found that plaintiffs and defendant No.5 are not entitled to the declaration of title and fixation of boundary prayed for. However, I make it clear that it will be open to plaintiffs and defendant No.5, be it under Ext.A3 or as legal representatives of deceased defendant No.1 initiate appropriate legal proceeding incorporating proper reliefs if they are otherwise entitled to such a course and that it will be open to the contesting defendants to defend such proceeding on whatever S.A. No.473 of 1996 -: 8 :- plea they are legally entitled to raise. Second Appeal in the circumstances did not merit admission. With the above observations, Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv S.A. No.473 of 1996 -: 9 :- THOMAS P.JOSEPH, J. =================== S.A. NO.473 of 1996 =================== J U D G M E N T 9TH OCTOBER, 2009