IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 RSA.No. 208 of 2004() --------------------- AS.32/1993 of SUB COURT,KOTTARAKKARA OS.324/1987 of MUNSIFF COURT, PUNALUR .................... APPELLANTS/RESPONDENTS 1 & 2/DEFENDANTS 1 & 2: ------------------------------------------------------------------ 1. BALAKRISHNA PILLAI, AGED 68 YEARS, RESIDING AT PADMAVILASATHU VEEDU FROM COTTELAZHIKATHU VEEDU, ERATHU VADAKKE THERRY, MALOOR VILLAGE, PATHANAPURAM TALUK. 2. SARADAMMA, RESIDING AT PADMAVILASATHU VEEDU FROM KENGALAZHIKATHU VEEDU, ERATHU VADAKKE THERRY, MALOOR VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.M.R.SUDHEENDRAN RESPONDENT(S): APLNTS.1TO6 & RSPTDS.3 TO 7/2ND PLNTF & ADDL.R3 &7 ----------------------------------------------------------------- 1. LALITHA BAI, SUJATHA, RESIDING AT ANITHA BHAVAN FROM COTTELAZHIKATHU VEEDU, ERATHU VADAKKE THERRY, MALOOR VILLAGE, PATHANAPURAM TALUK. 2. JANAKI AMMA LALITHABHAI AMMA, ANITHA BHAVAN FROM CATELAZHIKATHU VEEDU, ERATHU VADAKKETHERRY, MALOOR VILLAGE, PATHANAPURAM TALUK. 3. PRASANNA KUMARI, D/O.LALITHA BAI AMMA, DIBUVILASAM VEEDU, ERATHU VADAKKE THERRY FROM MALOOR VILLAGE, PATHANAPURAM TALUK. 4. ANITHAKUMARI, S/O. LALITHA BAI AMMA, NADAYIL THEKKETHIL VEEDU, ERATHU VADAKKE THERRY, KALAYAPURAM VILLAGE. 5. VENU, S/O. PRABHAKARAN PILLAI, ANITHA BHAVAN FROM COTTELAZHIKATHU VEEDU OF MALOOR VILLAGE, PATHANAPURAM TALUK. 6. PADMAKUMARI, AGED 33 YEARS, RESIDING AT PADMAVILASATHU VEEDU FROM KENGALAZHIKATHU VEEDU, ERATHU VADAKKE THERRY, MALOOR VILLAGE, PATHANAPURAM TALUK. 7. REJANI DEVI, AGED 31 YEARS, RESIDING AT PADMAVILASATHU VEEDU FROM KENGALAZHIKATHU VEEDU, ERATHU VADAKKE THERRY, MALOOR VILLAGE, PATHANAPURAM TALUK. 8. MAYADEVI, AGED 29 YEARS, RESIDING AT PADMAVILASATHU VEEDU FROM KENGALAZHIKATHU VEEDU, ERATHU VADAKKE THERRY, MALOOR VILLAGE, PATHANAPURAM TALUK. 9. SOBHANA DEVI, AGED 26 YEARS, RESIDING AT PADMAVILASATHU VEEDU FROM KENGALAZHIKATHU VEEDU, ERATHU VADAKKE THERRY, MALOOR VILLAGE, PATHANAPURAM TALUK. 10. SUMANGALA DEVI, AGED 23 YEARS, RESIDING AT PADMAVILASATHU VEEDU FROM KENGALAZHIKATHU VEEDU, ERATHU VADAKKE THERRY, MALOOR VILLAGE, PATHANAPURAM TALUK. ADV. SRI.A.R.DILEEP FOR R1 TO 5 SRI.NIDHI BALACHANDRAN FOR R6 TO R10 SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.KAVITHA GANGADHARAN FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.208 OF 2004 ............................................ DATED THIS THE 21st DAY OF JUNE, 2011 JUDGMENT Defendants 1 and 2 in O.S.324 of 1987 on the file of Munsiff Court, Punalur are the appellants. Respondents are the second plaintiff and legal heirs of first plaintiff who were impleaded in the first appeal, as the first plaintiff died during the pendency of the first appeal. Suit was instituted for declaration of title, fixation of boundary and permanent prohibitory injunction. Plaint schedule property is 72 ¼ cents in survey No.2201/3 of Maloor Village. It admittedly originally belonged to the family of the plaintiffs and defendants. Under Ext.B1 partition deed dated 8.10.1969, the properties were divided. The western portion was alloted to the appellants and the eastern portion to the plaintiffs. Plaintiffs are contending that they have title to the plaint schedule property as it was allotted to them under Ext.B1 partition deed and later ten cents of that property was settled in the name of second plaintiff under Ext.A1 settlement deed and as there is no boundary separating the property from the property which lies to the west RSA 208/2004 2 belonging to the appellants, they are attempting to trespass into the plaint schedule property and therefore the boundaries are to be fixed and the defendants are to be restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property. Appellants resisted the suit contending that immediately after the partition of 1969, the properties were measured and the property alloted to the appellants were taken possession and the boundaries were fixed and since then, they have been in possession of the property and part of the plaint schedule property is the property belonging to appellants and respondents have no title to the said property. It was also contended that even if respondents have title, it was lost by adverse possession. It was also contended that respondents are not entitled to get the boundary fixed so as to include a portion of the property in their possession. 2. Learned Munsiff on the evidence dismissed the suit. The plaintiffs challenged the judgment before Sub Court, Kottarakkara in A.S.32 of 1993. During the pendency of the first appeal, first plaintiff died and the legal heirs were impleaded. Learned Sub Judge on reappreciation of evidence found that RSA 208/2004 3 though under Ext.B1 partition deed the property was divided into two and the western portion was alloted to the share of appellants and the eastern portion to the respondents, instead of 93 cents shown in the partition deed, the actual extent available was 1 acre 51 cents and as per the division in Ext.B1, each of them is entitled to get the property in the proportion in which it was divided under Ext.A1 and if that be so, defendants are entitled to 78 ½ cents and plaintiffs, 72 ¼ cents. Learned Sub Judge also found that as demarcated by the Commissioner in Ext.C3 plan, the western pink coloured plot is 78 ¼ cents belonging to the defendants under Ext.B1 and the eastern 72 ½ cents is the green shaded plot marked in the plan and respondents have title to that property and the boundaries separating the two properties is XY line as shown therein and respondents are entitled to the decree fixing XY as the boundary and declaring the title of respondents to the property which lies to the east of XY line and appellants have title only to the property which lies to the west of XY line and respondents are also entitled to a decree for injunction. Appeal was allowed. Defendants are challenging the judgment in the second appeal. RSA 208/2004 4 3. Second appeal was admitted formulating the following substantial questions of law. “1) Whether the first appellate court is justified in reversing the findings of the lower court without properly considering and appreciating the facts circumstances and evidence arising in the case. 2)Whether the finding of the first appellate court as to adverse possession is correct ?”. 4. Learned counsel appearing for appellants and respondents were heard. 5. The demarcation of the properties in Ext.C3 plan except with regard to the division, is not in dispute. Though under Ext.B1 partition deed, the property divided and alloted to the plaintiffs and defendants are shown as 93 cents, it is admitted by both the parties that the actual extent is 1 acre 51 cents. If 1 acre 51 cents is divided in the proportion by which 93 cents was divided under Ext.B1 partition deed, as rightly found by first appellate court, the property for which appellants could claim title is 78 ½ cents and respondents could claim title to the RSA 208/2004 5 eastern 72 ¼ cents. The Commissioner has divided the property in accordance with the said measurement and fixed XY as the boundary line. The case of appellants is that though under Ext.B1, the property was divided as if the total extent is 93 cents, immediately after the partition, the properties were measured and appellants have put up boundaries separating their property and the eastern boundary of the said property is the line shown by the Commissioner to the east of XY line. The argument of the learned counsel is that when the Commissioner inspected the property and submitted Ext.C5 report and C4 mahazar, Commissioner could find a boundary separating the two properties from north to south and the Commissioner has noted a separating wall from north to south having a length of 50 feet and thereafter it continued to a length of 100 feet having a height of 1 feet and thereafter till the southern end, there was a separating boundary having a height of one half feet and though when the Commissioner inspected the property for submitting Ext.C5 report, the Commissioner could note only a separating boundary from north to south having a length of 36 metres and a partly dilapidated boundary having a measurement of 30 metres RSA 208/2004 6 and could not find any separating boundary towards further south and that portion of the boundary was removed by the plaintiffs subsequently and therefore based on Ext.C4 and C5, it is not possible to hold that there was no separating boundary. Learned counsel would argue that Ext.C5 mahazar reveals that the Commissioner could find the improvements effected by the plaintiffs and defendants on either side of the separating boundary and in such circumstances, it is clear that the property which lies to the west of the separating boundary shown in Ext.C3 plan has been in the possession of appellants and therefore even if appellants have title to that property, they are not entitled to a decree for fixation of the boundary, as they did not seek a decree for recovery of possession. 6. True, even if the plaintiffs have title to the property claimed by them, and if any portion of that property is in the possession of the defendants, plaintiffs cannot get a decree for fixation of boundary including that portion of the property unless a decree for recovery of possession is sought. When the suit is only for fixation of the boundary and injunction, without a prayer for recovery of possession, the plea of adverse possession raised RSA 208/2004 7 by the defendants will not arise for consideration. Irrespective of the question whether defendants have perfected their title by adverse possession or not, if defendants are in possession of any portion of the plaint schedule property, plaintiffs are not entitled to get the boundaries fixed including that portion of the property unless consequential relief of recovery of possession is also sought. But the question is whether the plaintiffs were not in possession or in possession of the entire plaint schedule property. 7. The definite case of the appellants is that they obtained possession of the property as provided under Ext.B1 partition deed. Their case is that the properties were measured and then boundaries were fixed. On the face of it the case cannot be accepted. If pursuant to Ext.B1 partition deed, the property was measured, the appellants would have been definitely aware of the fact that the property divided under Ext.B1 is not actually 93 cents but 1 acre 51 cents. If the properties were measured and appellants have taken possession of the property, the possession could only be in respect of a lesser extent, viz, 48 ½ cents. If that be so, the extent of the property which has been taken RSA 208/2004 8 possession by appellants could only be 48 ½ cents and if their case is that they have put up a boundary, it could only be in respect of the said 48 ½ cents. If that be so, by no stretch of imagination the eastern boundary so fixed can extend even upto XY line much less to further east of XY line. Added to this, it is the case of the appellants that later under Ext.B2 the properties were measured, divided and settled in 1987. If so, it would have been found that the property in the possession which are to be divided and settled is not 48 ½ cents as seen in Ext.B2 but more than one acre. These facts are sufficient to discard the case of the appellants. When the evidence is appreciated in the proper perspective, it could only be found that the properties were not measured as claimed by the appellants and boundaries were not fixed separating the properties divided as claimed. 8. On the evidence, as rightly found by the first appellate court, it can only be found that the property which was alloted to the share of the plaintiff is the property which lies to the east of XY line and the property which was alloted to the defendants is the property which lies to the west of XY line and the demarcating boundary is XY line as shown in Ext.C3 plan. RSA 208/2004 9 Though learned counsel appearing for the appellants argued that the evidence establish that the defendants have been in possession of the property even towards the east of XY line, upto to the line where Commissioner could note a separating boundary to an extent of 66 metres from north to south, and that is the separating boundary, in that case there should necessarily be a boundary further towards the south. As rightly explained by the learned counsel appearing for respondents, the existence of the bunds noted by the Commissioner could only be the bunds put up by the father, when the entire properties were enjoyed by him for the convenience of cultivation and cannot be treated as the separating boundary between the properties divided under Ext.B1. If that be so, on the evidence, it cannot be said that plaintiffs were not in possession of the plaint schedule property or any portion of the plaint schedule property as claimed by the appellants. If so, when plaintiffs have title to the plaint schedule property and they are in possession of the property, they are entitled to get the western boundary of the plaint schedule property fixed. When XY is the boundary, which separates the western property of the defendants, the decree RSA 208/2004 10 granted by the first appellate court is perfectly legal and correct and warrants no interference. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk