IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 RSA.No. 1314 of 2009() ---------------------- AS.282/2003 of SUB COURT,NEYYATTINKARA OS.1011/2000 of II ADDL.MUNSIFF COURT,NEYYATTINKARA .................... APPELLANT/APPELLANT/2ND DEFENDANT ----------------------------------------------------- SUKUMARAN NAIR @ KESAVA PILLAI VELAYUDHAN NAIR,USHA NIVAS,MARUKIL DESOM, OORUTTAMBALAM.P.O,MALAYINKEEZHU PAKUTHY. BY ADV. SRI.L.MOHANAN ADV.LIGEY ANTONY RESPONDENT(S): RESPONDENTS/PLAINTIFF AND IST DEFENDANT ------------------------------------------------------ 1. PONNAMMA PILLAI JAYASREE,NJARAKATTU KESAVAMANGALATHU VEEDU,MARUKIL DESOM, MALAYINKEEZHU VILLAGE. 2. KESAVA PILLAI BHARGAVAN NAIR, RAJA BHAVAN,MARUKUL DESOM,OORUTTAMBALAM.P.O, MALAYINKEEZHU VILLAGE. ADV. SRI.G.S.REGHUNATH FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1314 of 2009 -------------------------------------- Dated this the 14th day of January, 2010. JUDGMENT The bone of contention between the parties hereto who are closely related is 11 cents of land bounded by a road on the east and the property admittedly belonging to respondent No.1/plaintiff on the west where the family house is situated. Respondent No.1 claimed title and possession of the disputed 11 cents and prayed for decree for prohibitory injunction against the appellant and respondent No.2/defendant Nos.2 and 1, respectively. Alternatively it was prayed that in case appellant and respondent No.2 are found to be in possession of the said 11 cents, respondent No.1 be allowed to recover possession of the same on the strength of her title. Plaint A schedule is 33 cents. Alleging that it is part of plaint A schedule the disputed property (11 cents) is described in plaint B schedule. Trial court found that respondent No.1 has title and possession of plaint B schedule shown by the advocate commissioner in Ext.C2 and accordingly declared her title and possession. Injunction was granted subject to the right of defendants to take income from the trees in plaint B schedule as stated in Ext.A1. First appellate court on the appeal of appellant/ defendant No.2 confirmed that finding and decree. Hence the Second Appeal urging by way of substantial questions of law whether in the light of resurvey of the properties, identification made by the advocate S.A.No.1314 of 2009 2 commissioner in Exts.C1 and C2 can be preferred to the description of the properties in Ext.A1 and whether finding of the courts below that plaintiff is in possession of the disputed property is legally correct. 2. Facts of the case are: Plaint A and B schedule properties along with other items belonged to Kesava Pillai who executed Ext.A1, Will dated 28.1.1952 as per which B, D and E schedules therein, each measuring 11 cents were bequeathed to his daughters Parukutty Amma, Ponnamma Pilla and Padmavathiyamma. Respondent No.2 is not contesting the suit and hence it is not necessary to refer to the property bequeathed to him as per Ext.A1. G schedule item No.8 (75 cents) situated on the north of B, D and E schedules (33 cents) was bequeathed to appellant/defendant No.2. Another 25 cents towards the south of B, D and E schedules was also bequeathed to appellant/defendant No.2. The testator also provided that appellant and respondent No.2 will have the right of residence in one room each in the house situated in B, D and E schedules and take 1/5th each of the income from the trees standing in the items. Other legatees were also given similar right to take income from the trees in the said items. Those trees are described in the plaint C schedule. According to respondent No.1, she got title and possession of the 33 cents (B, D and E schedules) as per Exts.A5, A7 and A14. It is while so that respondent No.1 filed the suit as above stated. In the plaint, the said 33 cents is described in the plaint A schedule and the portion of which according to S.A.No.1314 of 2009 3 respondent No.1 is attempted to be trespassed upon by the appellant and respondent No.2 is described as plaint B schedule. Contention of appellant/defendant No.2 is that respondent No.1 has no title or possession of plaint B schedule, it is not part of plaint A schedule and that even going by the description in Ext.A1, the said 11 cents lie outside the 'mana' (house with the land and compound wall). It is further contended by appellant/defendant No.2 that in the resurvey the disputed plaint B schedule is shown as in the possession of appellant/defendant No.2. 3. It is contended by learned counsel for appellant/defendant No.2 that there is no challenge to the resurvey proceeding which became final in the year 1985 as seen from Ext.B10, Government Order dated 29.1.1985, after institution of the suit respondent No.1 filed Ext.A10, complaint alleging that the resurvey is not proper but that complaint has been rejected as per Ext.A11, order. It is also the contention of learned counsel that so far as resurvey is not challenged and has become final, measurement of the property and identification made by the advocate commissioner in Exts.C1 and C2 merely based on Ext.A1, document of the year 1952 cannot stand. Learned counsel therefore contended that finding of the courts below regarding identification of plaint B schedule and that respondent No.1 is in possession of that property cannot be sustained. It is contended by learned counsel for respondentNo.1/plaintiff that title and possession of the property has to be S.A.No.1314 of 2009 4 traced to Ext.A1 which is not challenged by appellant/defendant No.2 also, he is bound by the bequests, terms and conditions stated therein and that appellant/defendant No.2 has no case that as per Ext.A1 he got any property on the east of B, D and E schedules in Ext.A1 (plaint A schedule). Appellant/defendant No.2 has no case that as per the resurvey he got any additional land not covered by Ext.A1. But, his contention is that by the resurvey respondent No.1 lost 11 cents (plaint B schedule)which contention cannot stand. According to the learned counsel, title of the property cannot be decided by the revenue authorities and the resurvey cannot confer title. It is pointed out by the learned counsel that Ext.A10, complaint though filed subsequent to the filing of suit was not rejected by the revenue authorities but it was only directed that since the suit is pending in the civil court revenue authorities were not inclined to consider the objection filed by respondent No.1 regarding resurvey. 4. Section 13 of the Kerala Survey and Boundaries Act, 1961 deals with finality of resurvey and Section 14 of that Act deals with the time provided for challenging it. But those provisions cannot apply in a case where there is dispute regarding title and possession and the civil court is called upon to decide those questions. Sections 13 and 14 of the said Act only concerned finality of boundaries as per survey records and the time provided for challenging it. I am not inclined to think that Sections 13 and 14 of the said Act affected right and S.A.No.1314 of 2009 5 power of the civil court to declare title and possession even after the resurvey has become final. Hence the contention that because resurvey has become final in the year 1985, respondent No.1 cannot assert her title cannot stand. 5. Now the substantial question urged for decision by the appellant/defendant No.2 is as to the correctness of identification of properties made by the advocate commissioner in Ext.C2, (plan) with reference to Ext.A1, the Will. Appellant/defendant No.2 would claim that in the resurvey which became final in the year 1985, the disputed property is shown to be in his possession and he is paying tax for the said item (after 1985). Though there is a contention for the appellant that even as stated in the plaint and its schedules plaint B schedule does not form part of plaint A schedule, I am unable to accept that contention. In paragraph No.1 of the plaint it is stated that plaint B schedule formed part of plaint A schedule. In the schedule to the plaint, B schedule is stated as coming within A schedule and bounded by road on the east and the land where the house is situated on the west. It is not disputed that the house is situated in plaint A schedule. So far as the eastern boundary description of plaint B schedule is concerned, advocate commissioner has shown in Ext.C2 a well formed road which, it is not disputed came into existence after 1952. According to the learned counsel for respondent No.1/plaintiff, during the time of Ext.A14, on the eastern side of plaint B schedule was what he called a 'thadam' which the learned counsel explained as a way for taking bullock carts. S.A.No.1314 of 2009 6 Learned counsel would draw sustenance to this argument from Ext.A14, Will executed by the parents in favour of respondentmNo.1/plaintiff. It is pertinent to note that G schedule item No.8 in Ext.A1, 75 cents bequeathed to the appellant/defendant No.2 is on the north of B, D and E schedules (33 cents which according to respondentNo.1/plaintiff is the plaint A schedule). Ext.A1 states that G schedule item No.8 (75 cents) is on the north of 'mana' (house with the land where it situates and the compound walls). Indisputably, Ext.A1 does not say that any portion of the said 75 cents comes on the east of B, D and E schedules. Another 25 cents bequeathed to the appellant is towards the south of 25 cents bequeathed to the wife of the testator which is towards the south of the B, D and E schedules. I must bear in mind that appellant/ defendant No.2 has no case that B, D and E schedules in Ext.A1 were not bequeathed to the three daughters and it ultimately came to respondent No.1 as per Exts.A5,7 and 14. Going by Ext.A1 which the appellant cannot disown no inch of land has been bequeathed to him on the east of B, D and E schedules. Therefore going by Ext.A1 appellant/defendant No.2 cannot claim any property on the east of the 33 cents (B, D and E schedules) or on the east of the 'mana' as the appellant would put it. Measurements taken by the advocate commissioner also tallies with the measurement of B, D and E schedules in Ext.A1. Plaint B schedule is marked by the advocate commissioner in Ext.C2 as plots A3, A4, A5, A8, A9 and A10 the area of which is found to be 11.362 cents while the rest of A schedule marked as A1, A2, A3, A10, A11, A15 and A13 (as shown by the S.A.No.1314 of 2009 7 appellant/defendant No.2) has an area of only 21.736 cents which together makes up to 33.098 cents. That tallied with plaint A schedule (33 cents) as shown by respondent No.1 and marked in Ext.C2. It is true that evidence reveals changes in the re-survey. But as stated earlier, re-survey cannot confer or extinguish title. Appellant when examined as DW1 has admitted that plaint A schedule (33 cents extending upto the road on the east) was in the possession of his father (testator) till his death and that he has no challenge to the bequests as per Ext.A1. He also admits that formerly, there was a way (should be along the east of the 33 cents - plaint A schedule) having width of two feet (which respondent No.1 says from Ext.A14 as 'thadam', ie. the way to take bullock carts) and that he gave one cent (should be from G schedule item No.8) for formation of road (commissioner has shown the road along the east of G schedule item No.8 of the appellant also). DW1 also admitted that Ext.A1 does not say that the 75 cents bequeathed to him (G schedule item No.8) is on the east of the mana (ie. 33 cents - plaint A schedule) and instead, as per Ext.A1 the said 75 cents is on the north of the 'mana'. His claim is that in the description of the 75 cents (G schedule item No.8) in Ext.A1, it should have been stated as on the east of the 'mana' also. But he has not so far challenged the descriptions in Ext.A1. As DW1 he admitted that respondent No.1 got the B, D and E schedules in Ext.A1 (as per Exts.A5, A7 and A14). He is also sure that he has not got anything in excess as per the re-survey. His claim is that respondent No.2 lost 11 cents as per the re-survey. So much so, it is clear that the entire S.A.No.1314 of 2009 8 claim set up by the appellant over plaint B schedule is on the strength of the re- survey. I stated that re-survey cannot create or extinguish title over immovable property. In the circumstances, courts below are justified in accepting identification of the properties on the basis of descriptions in Ext.A1, rather than the re-survey. 6. Further fact to be noted is that as shown by the advocate commissioner there are yielding trees in plaint A and B schedules and as per Ext.A1, appellant and respondent No.2 along with others were permitted to take 1/5th each of the income from the said trees. Appellant and respondent No.2 were also given right to reside in one room each in the house. Respondent No.2 has already released his right as per a release deed. Commissioner has shown some of those trees in the disputed plaint B schedule also. In that situation the only right appellant/defendant No.2 can make over plaint B schedule is to take 1/5th of the income from the trees in plaint B schedule as well. It is based on Ext.A1 as well that advocate commissioner has identified the disputed property and the 75 cents bequeathed to the appellant/defendant No.2 falling in item No.8 of G schedule of Ext.A1. The contention that resurvey should prevail over the bequests made as per Ext.A1, I am unable to accept nor does it present any substantial question of law. S.A.No.1314 of 2009 9 7. So far as possession claimed by the appellant is concerned what is produced is Exts.B4 and B5, resurvey plans and certain receipts for payment of revenue (after the resurvey). Mere fact that revenue was paid and that too, after Exts.B4 and B5 by the appellant/defendant No.2 is not by itself sufficient to show that he is in exclusive possession of the disputed plaint B schedule. I must also bear in mind that appellant/defendant No.2 has not disclaimed the right to take 1/5th of the income from the trees from plaint B schedule also as reserved in his favour in Ext.A1. Courts below on evidence found that appellant is in possession of the disputed property. That is a finding of fact on the evidence on record and involved no substantial question of law. There is no substantial question of law requiring decision in this appeal. The Second Appeal is dismissed in limine. I.A.No.3028 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks