IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 RSA.No. 1327 of 2008 ----------------------------------- AS.126/1993 of SUB COURT, ATTINGAL OS.86/1982 of MUNSIFF COURT, ATTINGAL ...... APPELLANTS/APPELLANTS/DEFENDANTS: 1. KOCHIRI SANKARAN, KATTIL VEEDU, DERSANAVATTOM DESOM, NAGAROOR VILLAGE. 2. MATHEVAN RADHA, W/O SANKARAN, KATTIL VEEDU, DERSANAVATTOM DESOM, NAGAROOR VILLAGE. BY ADV. SRI.M.R.RAJESH RESPONDENTS/RESPONDENTS/PLAINTIFFS: 1. MATHAN ANANTHA, THOTTATHILVEEDU, DARSANAVATTOM DESOM, NAGAROOR VILLAGE, THIRUVANANTHAPURAM DIST. (DIED) 2. MATHAN KALIYAMBI, THOTTATHIL VEEDU, DARSANAVATTOM DESOM, NAGAROOR VILLAGE, THIRUVANANTHAPURAM DIST. 3. MATHAN KOCHUPENNU, DO. DO. 4. MATHAN KOCHURAMAN, DO. DO. 5. MATHAN GOPALAN, DO. DO. 6. MATHAN KUNJI, DO. DO. (DIED) 7. MATHAN KOCHAPPI, DO. DO. 8. MATHAN CHELLAPPAN, DO. DO. (DIED) 9. MATHAN KOCHUPILLAI, DO. DO. 10. KELAMBI KRISHNAN, DO. DO. 11. KELAMBI GOMATHI, DO. DO. LRs OF 6 th RESPONDENT 12. RADHA, D/O KUNHI, AGED 55 YEARS, THANNIYAM KIZHAKKUMKARA PUTHEN VEETTIL, KALLARA VILLAGE AND DESOM, THIRUVANANTHAPURAM DISTRICT. 13. BABY, D/O KUNHI, AGED 45 YEARS, DO. DO. 14. MEENAKSHI, W/O CHELLAN, AGED 62 YEARS, DO. DO. Impleaded as per order dt. 28.11.08 on IA 2487/08 LRs OF 8 th RESPONDENT 15. NALINI, D/O MEENAKSHI, AGED 42 YEARS, DO. DO. 16. RAJAN, S/O CHELLAPPAN, AGED 39 YEARS, DO. DO. Impleaded as per order dt. 28.11.08 on IA 2487/08 LRs OF FIRST RESPONDENT First respondent died and respondents 2 to 9 are recorded as the legal representatives of deceased first respondent as per order dt. 24.11.08 on IA 2489/08 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1327 of 2008 AND W.P(C) NO.32136 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of February, 2010 C O M M O N J U D G M E N T ---------------------------------------- This Second Appeal and Writ Petition concern judgment and decree for recovery of possession on the strength of title granted in favour of plaintiffs in O.S. No.86 of 1982 of the court of learned Munsiff, Attingal. When judgment and decree of the first appellate court are under challenge in the Second Appeal, challenge in the Writ Petition is to order of delivery pursuant to that judgment and decree. Parties are referred to as plaintiffs and defendants as in the trial court. 2. Substantial questions of law framed for a decision in the Second Appeal are: (i) Did not courts below go wrong in granting a relief to the plaintiffs with respect to a property which was not at all the subject matter of the lis? (ii) Did not courts below go wrong in R.S.A. No.1327 of 2008 & W.P(C) No.32136 of 2008 -: 2 :- ignoring admission of plaintiffs in the box that hut put up by the defendants is 10 ft. northwards of the earlier hut and also that the same is on the north of the 'Kalladukku' boundary separating the respective plots? (iii) Did not courts below go wrong in assuming that subject matter of the suit is one acre of land since the same is so stated in paragraph 11 of the remand order of the first appellate court at the first instance, when it is trite law that where there is no finding on fact or law there is no question of a palpably incorrect statement (which is only an Obiter Dicta and hit by the doctrine of Sub Silentio) while narrating facts in a judgment is not binding on the parties? 3. Plaintiff Nos.1 to 5 are children of Mathan in his first wife. Plaintiff Nos.6 to 11 are his children in his second wife. According to the plaintiffs 3.31 acres a portion of which is subject matter of the suit belonged to Kocheri, father of defendant No.1. He sold 31 cents towards the north-eastern corner. Of the remaining 3 acres Kocheri assigned one acre towards southern side extending east- west to the plaintiffs as per Ext.A1, assignment deed of 1950. Plaintiffs 6 and 10 constructed a shed in the said property. Remaining two acres (out of three acres) remained with Kocheri. R.S.A. No.1327 of 2008 & W.P(C) No.32136 of 2008 -: 3 :- The said two acres is situated on the north of the one acre assigned to plaintiffs as per Ext.A1. Plaintiffs claimed that there was well defined boundary between the said one acre and remaining two acres and while so defendants attempted to trespass into the suit property. That was resisted by the plaintiffs by filing O.S. No.63 of 1977 and plaintiffs were successful in obtaining a decree against trespass. But on 15.1.1982 when that suit was pending defendants trespassed into the property and constructed a shed. It is therefore prayed that on the strength of title plaintiffs may be allowed to recover possession of the trespassed portion. Defendants contended that plaintiffs who were minors at the time of Ext.A1 did not get possession of one acre referred to therein. Kocheri executed Ext.A1, sale deed as security for the amount he had received. Possession of the property was not given to the plaintiffs. Plaintiff Nos.6 and 10 are staying in the shed (in the one acre) which is on the south of the 3.31 acres. Defendants disputed identity of the suit property. Trial court initially dismissed the suit against which plaintiffs filed A.S. No.111 of 1984. Learned Prl. Sub Judge, Attingal allowed that appeal vide judgment dated 30.10.1990 holding that plaintiffs have title and possession over the one acre but remanded the case to the trial court for deciding exact area trespassed upon by the defendants. First appellate court directed that plaintiffs should take out a commission to identify the place R.S.A. No.1327 of 2008 & W.P(C) No.32136 of 2008 -: 4 :- where hut is put up by the defendants and if that is found to be in the one acre covered by Ext.A1 plaintiffs would get a decree for recovery of possession. Remand judgment was not challenged by the defendants and has become final. After remand a commission was taken out at the instance of the plaintiffs. Exhibits C1 and C1(a) are the report and plan submitted by the Commissioner. Properties were measured with the help of Taluk Surveyor. After remand trial court found that defendants are in possession of GKJEH plot in Ext.C1(a) where they have put up the hut and allowed plaintiffs to recover possession of that plot. That judgment and decree were challenged by the defendants in appeal but in vain. Hence this Second Appeal. It is contended by learned counsel for defendants that there is no proper description of the suit property in the plaint schedule. Property scheduled in plaint is the shed allegedly put up by defendants. Hence trial court was wrong in allowing recovery of possession of plot GKJEH in Ext.C1(a). Further contention is that identification of the property made by the Commissioner and Taluk Surveyor is not correct even going by the evidence of P.W.1 on behalf of the plaintiffs. According to the learned counsel though in the plaint it is stated that the hut is put up by the defendants trespassing into the one acre towards its north-eastern portion, hut identified by the Advocate Commissioner is towards north-western portion of the one acre in Exts.C1 and C1 R.S.A. No.1327 of 2008 & W.P(C) No.32136 of 2008 -: 5 :- (a). According to the learned counsel in the absence of proper identification of the disputed property trial court was not justified in granting a decree for recovery of possession. Learned counsel contended that case may be remitted to the trial court for proper identification of the property. 4. So far as Writ Petition is concerned, challenge is to the order of delivery passed by the executing court. It is contended by learned counsel that without proper identification of the property no delivery ought to have been ordered and made. It is also contended that delivery effected is not in accordance with the decree granted and hence defendants have filed a petition for appointment of a Commissioner for proper identification of the property and re-delivery. Learned counsel for the plaintiffs contended that in the light of earlier judgment in A.S. No.111 of 1984 which has become final none of the grounds urged by defendants can survive. It is contended by learned counsel that remand judgment allowed plaintiffs to recover possession of area actually trespassed upon by defendants and that has been identified by the Commissioner as per Exts.C1 and C1(a). 5. I shall first address the contention as to lack of proper description in the plaint schedule. Order VIII Rule 3 of the Code of Civil Procedure (for short, “the Code”) mandates that when subject matter of the suit is immovable property plaint shall contain a R.S.A. No.1327 of 2008 & W.P(C) No.32136 of 2008 -: 6 :- description of the property sufficient for its identification and in cases where such property can be identified by boundaries or numbers in a record of settlement or survey plan the plaint shall specify such boundaries or numbers. In the plaint schedule what is described is the hut allegedly put up by the defendants encroaching into the one acre towards its north-eastern corner. True, the one acre or the trespassed area is not specifically stated in the plant schedule but there is sufficient averment in the plaint about the one acre which is subject matter of the suit. In paragraph 3 of plaint it is stated that of 3.31 acres and excluding the 31 cents on the north- eastern corner of the total extent plaintiffs acquired one acre as per Ext.A1 on the southern portion of the entire property extending east- west. It is also seen that Ext.A1 was produced along with the plaint. In paragraph 8 of the plaint it is also stated that defendants have no right or possession of the one acre referred to in paragraph 3 of the plaint. It is settled position of law that when a document is produced along with the plaint that would form part of the pleadings. There is sufficient material in the plaint read as a whole to show that dispute is regarding the trespassed portion in the one acre acquired by plaintiffs as per Ext.A1 and situated on the southern portion of the total extent extending east-west. I must also bear in mind that in the light of the remand judgment this contention does not survive as it is a closed remand directing trial court to consider R.S.A. No.1327 of 2008 & W.P(C) No.32136 of 2008 -: 7 :- certain issues alone. 6. So far as title claimed by the plaintiffs as per Ext.A1 is concerned that also is a closed chapter as per remand judgment since it has been specifically found in that judgment that plaintiffs have title and possession over one acre acquired by them as per Ext.A1. Section 105(2) of the Code makes it abundantly clear that matters concluded by the remand judgment shall not be re-agitated after such judgment has become final. Therefore this Court cannot go into the question of title urged by the defendants. 7. I stated that in the remand judgment direction to the trial court was only to identify portion of property of plaintiffs allegedly trespassed upon by the defendants and trial court was to give recovery of possession of the trespassed portion if it came within the one acre covered by Ext.A1. What remained for decision of trial court after remand was only whether any portion of the one acre was in the possession of the defendants and if so to grant decree for recovery of possession. Defendants could not even urge a plea of adverse possession in view of the remand judgment. 8. So far as the one acre covered by Ext.A1 is concerned, the document does not give its side measurements. But Ext.A1 is specific that the one acre is towards southern portion of 3.31 acres and extending east-west. It is pointed out by learned counsel for defendants that going by Ext.C1(a), the 31 cents towards north- R.S.A. No.1327 of 2008 & W.P(C) No.32136 of 2008 -: 8 :- eastern portion of the total extent of 3.31 acres has not been separately identified by the Advocate Commissioner and Taluk Surveyor. But evidence of D.Ws.2 and 3, Taluk Surveyor and Advocate Commissioner is that they had identified the 31 cents and 3.31 acres and thereafter identified the one acre towards southern portion of the total extent. Even if the said 31 cents is not identified, it made no difference as it has nothing to do with the one acre towards the south of the 3.31 acres. There is evidence of D.W.2 that he had found survey marks on the northern and southern boundary lines of the 3.31 acres. It is seen from Ext.A1 and Exts.C1 and C1(a) that boundary descriptions of the 3.31 acres tallied. There is no dispute regarding survey boundary lines of the 3.31 acres. There is no dispute regarding boundaries of the 3.31 acres or the southern, eastern and western boundaries of the one acre. What remained for consideration is only whether Advocate Commissioner and Taluk Surveyor were correct in fixing northern boundary of the one acre. There is some difficulty in doing that since as I stated side measurements of one acre are not given in Ext.A1. So far as northern boundary is concerned, Commissioner and Surveyor have fixed the boundary line in straight line extending east-west. Relying on the evidence of P.W.1 it is argued by learned counsel for defendants that northern boundary line of the one acre could not be in a straight line. Learned counsel has taken me R.S.A. No.1327 of 2008 & W.P(C) No.32136 of 2008 -: 9 :- through evidence of P.W1. He stated that initially Kocheri and children were residing in a hut on the north-west of the one acre assigned to the plaintiffs as per Ext.A1. He also stated that in between one acre and the property possessed by Kocheri where he was residing there was a boundary with boulder stones (Kalladukku). Advocate Commissioner and Taluk Surveyor found such a boundary on the HG and GK lines shown in Ext.C1(a). This according to learned counsel would indicate that north-western boundary of the one acre acquired as per Ext.A1 was HGKE line which meant that plaintiffs had no title or possession over GKJEH plot in Ext.C2(a). 9. Certainly this argument sounds attractive at the first blush. But a closer scrutiny of evidence would reveal that argument lacks substance. Throughout in the evidence P.W1 stated that on the entire northern boundary of one acre there was a boundary with boulder stones. He did not say that on the north- western portion the boundary was along HG and GK lines as shown by the Advocate Commissioner. It is relevant to note that P.W1 was examined before remand and Exts.C1 and C1(a) came into existence after remand. Certainly it was not with reference to the boulder stones on GH and GK lines shown by the Advocate Commissioner and Taluk Surveyor that P.W.1 was questioned with reference to the northern boundary of the one acre. Without recalling the witness R.S.A. No.1327 of 2008 & W.P(C) No.32136 of 2008 -: 10 :- after Ext.C1 and C1(a) was submitted it is not open to the defendants to contend from the above said answer given by P.W.1 that north-western boundary of the one acre has been admitted by P.W.1 along HG and JK lines. I find no substance in that argument. So far as side measurements of the one acre is not mentioned in Ext.A1 and in so far as there is no dispute regarding the southern, eastern and western boundaries the proper course is to identify the northern boundary of the one acre as done by the Advocate Commissioner and Taluk Surveyor and as shown in Exts.C1 and C1 (a). In the circumstances I do not find reason to interfere with the finding of the courts below that plot GKJEH formed part of the one acre acquired by the plaintiffs as per Ext.1, that portion is in the possession of defendants and hence on the strength of title as found in the remand judgment plaintiffs are entitled to recover that portion. 10. Yet another argument advanced by the learned counsel is that though in the plaint schedule it is stated that hut is allegedly put up towards the north-eastern portion of one acre acquired by the plaintiffs as per Ext.A1, Advocate Commissioner and Taluk Surveyor have shown that hut as situated towards the north- western portion of the one acre, to be more precise in GKJEH plot which is allowed to be recovered by the trial court. It is true that there is some discrepancy in the case of plaintiffs as to the exact R.S.A. No.1327 of 2008 & W.P(C) No.32136 of 2008 -: 11 :- place of trespass. But the evidence of P.W2 gives the answer. He stated that following boundary dispute there was a criminal case for allegedly setting fire to the hut situated in the one acre and the hut was shifted towards the northern side, according to P.W.2 to a distance of about 10 metres. It is true that P.W.2 stated that hut was shifted towards the northern side but some allowance has to be given to his evidence as he was giving evidence much after the incident. At any rate even if it is assumed that trespassed area as stated in the plaint is not the one identified by the Advocate Commissioner and Taluk Surveyor, that is of no consequence since remand judgment allowed plaintiffs to recover possession of the actual area found in possession of defendants and coming within the one acre acquired by the plaintiffs as per Ext.A1. That area has been correctly identified as GKJEH plot in Ext.C1(a). The substantial questions framed are answered accordingly. 11. Now I shall refer to the challenge in the Writ Petition. Challenge is to the order of the executing court directing delivery of plot GKJEH in Ext.C1(a). That challenge cannot survive in the light of decision in the remand judgment. Therefore challenge to the order of executing court directing delivery of plot GKJEH in Ext.C1(a) to the plaintiffs cannot succeed. 12. It is submitted by learned counsel for defendants that the Amin had effected delivery of property without proper R.S.A. No.1327 of 2008 & W.P(C) No.32136 of 2008 -: 12 :- identification and that what is delivered over is not the GKJEH plot or is in excess of that plot which belonged to the defendants. It is also submitted that defendants have already filed a petition in the executing court for re-delivery of the property and an application for appointment of a Commissioner for proper identification of the property. Learned counsel requested that executing court may be directed to dispose of those applications. I make it clear that if any applications are pending it will be open to the executing court to proceed with those applications and pass appropriate orders as provided under law and as circumstances warranted. With the above observations Second Appeal and Writ Petition are dismissed directing the parties to suffer their respective costs. Interlocutory Application No.2848 of 2008 in R.S.A. No.1327 of 2008 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv