IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 RSA.No. 1109 of 2011(K) ----------------------- AS.98/2004 of SUB COURT, PAYYANNUR OS.569/1999 of MUNSIFF COURT, THALIPARAMBA .................... APPELLANT 2 & LRS OF APPELLANT 1/PLAINTIFF 2 & LR --------------------------------------------------------------------- 1. KALLURIYAKATH MOIDU, S/O.SOOPPY, AGED 59 YEARS, RESIDING AT PUSHPAGIRI, TALIPARAMBA AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT, P.O.TALIPARAMBA, PIN-670142. 2. JAMEELA A.V., W/O.LATE KALLURIYAKATH MAMMU, AGED 52 YEARS, RESIDING AT AROLI HOUSE, PAPPINISSERY AMSOM AROLY DESOM, KANNUR TALUK, KANNUR DISTRICT P.O., PAPPINISSERY, PIN-670582. 3. MUNEER A.V., S/O.LATE KALLURIYAKATH MAMMU, AGED 33 YEARS, RESIDING AT AROLI HOUSE, PAPPINISSERY AMSOM AROLY DESOM, KANNUR TALUK, KANNUR DISTRICT P.O., PAPPINISSERY, PIN-670582. 4. MOIDU A.V., S/O.LATE KALLURIYAKATH MAMMU AGED 31 YEARS, RESIDING AT AROLI HOUSE, PAPPINISSERY AMSOM AROLY DESOM, KANNUR TALUK, KANNUR DISTRICT P.O., PAPPINISSERY, PIN-670582. 5. SHAMEEM A.V.,S/O.LATE KALLURIYAKATH MAMMU,AGED 28 YEARS, RESIDING AT AROLI HOUSE, PAPPINISSERY AMSOM AROLY DESOM, KANNUR TALUK, KANNUR DISTRICT P.O., PAPPINISSERY, PIN-670582. 6. SHAMEELA A.V., D/O.LATE KALLURIYAKATH MAMMU,AGED 26 YEARS, RESIDING AT AROLI HOUSE, PAPPINISSERY AMSOM AROLY DESOM, KANNUR TALUK, KANNUR DISTRICT P.O., PAPPINISSERY, PIN-670582. 7. JAMSHEER A.V., S/O.LATE KALLURIYAKATH MAMMU,AGED 23 YEARS, RESIDING AT AROLI HOUSE, PAPPINISSERY AMSOM AROLY DESOM, KANNUR TALUK, KANNUR DISTRICT P.O., PAPPINISSERY, PIN-670582. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. MANDI BALAN, S/O.KORAN, AGED 70 YEARS, THALIYIL, ANDOOR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT, PARASSINIKADAVU P.O.,PIN-670582. 2. KALLOORIYAKATH HUSSAIN, S/O.SOOPPY, AGED 48 YEARS, RESIDING AT PATTUVAM AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT P.O., PATTUVAM, PIN-670141. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1109 of 2011 ............................................ DATED THIS THE 2nd DAY OF NOVEMBER, 2011 JUDGMENT Second plaintiff and legal heirs of the first plaintiff in O.S.569 of 1999 on the file of Munsiff Court, Taliparamba are the appellants. Defendants are the respondents. Suit was originally filed for permanent prohibitory injunction. Later, it was amended seeking a decree for mandatory injunction and recovery of possession. Appellants are claiming title to the plaint schedule property under Ext.A3 sale deed. The plaint schedule property and the property of first respondent obtained under Ext.A2/B1 sale deed admittedly originally belonged to Govindan Nambiar, who obtained title to 1.01 acres under Ext.A1 partition deed, being schedule A therein. According to the appellants, after alienating the property, three cents shown as the plaint schedule property was left with Govindan Nambiar, who assigned it in favour of the plaintiffs and second defendant under Ext.A3 sale deed and they have title to the property. First respondent has title only to ten cents covered under Ext.A2 sale deed. It is RSA 1109/2011 2 contended that the property obtained by Govindan Nambiar was originally in survey No.94/3, which was subsequently resurveyed as R.S.115/7 and by misthake, survey number of the property in Ext.A3 was shown as 92/3 instead of 94/3. It was only a mistake. The first respondent has no right over the said property. Hence the title of plaintiffs is to be declared and recovery of possession was sought for. 2. First respondent resisted the suit contending that plaint schedule property is not the property covered under Ext.A1 and appellants have no title to the said property and plaint schedule property belongs to him and is in his possession and the appellants are therefore not entitled to the relief sought for. 3. Learned Munsiff on the evidence dismissed the suit, though it was found that the plaintiffs and second defendant have title to three cents of the property in Survey No.94/3, but they are not entitled to a decree for recovery of possession or mandatory injunction. Plaintiffs challenged the decree before Sub Court, Payyannur in A.S.98 of 2004. Learned Sub Judge on re- appreciation of the evidence found that plaint schedule property is claimed to be the property covered under Ext.A3 and the RSA 1109/2011 3 property obtained under Ext.A3 is in survey No.92/3, which is far away from the plaint schedule property and hence appellants are not entitled to the decree sought for. Appeal was dismissed. It is challenged in the second appeal. 4. Learned counsel appearing for appellants was heard. The argument of the learned counsel is that it was under Ext.A1, 1.01 acre covered under A schedule therein, was obtained by Govindan Nambiar and the property sold to the first respondent under Ext.A2 is only ten cents described with side measurements and the boundaries in Ext.A2 shows that a portion of the property which lies to the south of thak No.1 and west of thak No.2 therein was retained by Govindan Nambiar and under Ext.A3, the balance property available to Govindan Nambiar was sold to the plaintiffs and second defendant and therefore they have title to the property. Learned counsel argued that when first respondent obtained ten cents being part of A schedule property covered under Ext.A1 and Ext.A2 shows that the property which lies to the south of thak No.1 and west of thak No.2 was retained by Govindan Nambiar and in the light of the boundaries shown in Ext.A3, it is clear that the property covered therein is the RSA 1109/2011 4 property which was left with Govindan Nambiar and later sold to the plaintiffs under Ext.A3. Learned counsel argued that Ext.C5 and C6 plans show that original survey No.94/3 on resurvey was R.S.No.115/5, 6 and 7 and plot A is the plaint schedule property and therefore finding of first appellate court that plaintiffs have no title to the plaint schedule property is not correct. Learned counsel pointed out that Commissioner has identified the property with reference to the side measurements shown in Ext.A2 and demarcated plot B as the property covered under Ext.A2 and therefore plot A excluding plot Z and plot Y is the plaint schedule property and courts below should have found that appellants have title to the said property and based on the strength of title a decree for recovery of possession should have been granted. 5. True, appellants and first respondent are claiming the right which was originally with Govindan Nambiar under Ext.A1 partition deed. Ext.A1 shows that A schedule therein was alloted to Govindan Nambiar and it was having a total extent of 1.01 acre. A schedule of Ext.A1 was part of a big plot having a total extent of 3.8 acres. Admittedly under Ext.A2(B1) sale deed dated RSA 1109/2011 5 20.12.1975, Govindan Nambiar assigned ten cents in favour of first respondent. Ext.B1 shows that the property so alienated was described in side measurements. From the boundaries of Ext.A2, it is clear that at the time of alienation under Ext.A2, the assignor Govindan Nambiar retained with him, portion of the property which lies to the south of thak No.1 and west of thak No.2. Though learned counsel vehemently argued that the property which was left with Govindan Nambiar was the property assigned under Ext.A3, Ext.A3 does not give any indication that it is that property, which was left with Govindan Nambiar, after alienation under Ext.A2. The recitals in Ext.A3 is to the effect that the property transferred thereunder was portion of the property obtained by Govindan Nambiar under A schedule of Ext.A1 partition deed and the property assigned was earlier orally entrusted to the plaintiffs and thus, plaintiffs were in possession of that property. It does not give the side measurements of the property transferred, which was the case with Ext.A1 partition deed and Ext.A2 sale deed. When Ext.A2 shows that the northern measurement of thak No.2 is 3 ½ six feet koles and the western boundary is 6 six feet koles, Ext.A3 does not show that the RSA 1109/2011 6 northern side measurement of the property transferred is the southern side measurement of thak No.1 or the western boundary is the eastern side measurement of thak No.2 of Ext.A2 property. Therefore, based on Ext.A2 alone, the property covered under Ext.A3 cannot be fixed. If the property covered under Ext.A3 is to be fixed with reference to the boundaries shown therein, the southern boundary is the road and western boundary, a lane and the property on the east and north are portions of the property in the same paramba. As the southern boundary of 1.01 acre obtained by Govindan Nambiar as A schedule of Ext.A1 is road, the property covered under Ext.A3 can be anywhere to the north of that road. Similarly, when the eastern and northern boundary of the property covered under Ext.A3 is the remaining property of the same paramba, it could be anywhere on the north of the road and need not necessarily be the plaint schedule property which lies to the south of the property covered under Ext.A2 sale deed. The only other indication is the lane, which lies on the eastern boundary. Unless it is identified and found that there is no lane in between the western lane, noted by the Commissioner and the eastern RSA 1109/2011 7 boundary of 1.01 acre, based on the western lane also, the property cannot be fixed. Unless property covered by 1.01 acre under A schedule of Ext.A1 partition deed and the alienation made by Govindan Nambiar are identifed and demarcated and the balance extent, if any, available with Govindan Nambiar is fixed, the property covered under Ext.A3 cannot be fixed. In such circumstances, without identification, appellants are not entitled to the decree sought for. Hence, on the facts no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk