IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 RSA.No. 384 of 2010() --------------------- AS.62/2007 of SUB COURT, PALA OS.67/2005 of MUNSIFF MAGISTRATE, ERATTUPETTA .................... (S): APPELLANT/PLAINTIFF: ---------------------------------------- T.T.MATHEW, S/O.THOMAS, AGED 49 YEARS, THATTAMPARAMBIL, KONDOOR KARA, KONDOOR VILLAGE, MEENACHIL TALUK. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.GEORGE MATHEW SRI.DIPU JAMES RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------- 1. K.D.SEBASTIAN, S/O.THOMAS, KOOTTIYANICKAL (H), THIDANADU KARA, KONDOOR VILLAGE, MEENACHIL TALUK. 2. SUNNY SEBASTIAN, S/O.SEBASTIAN, KOOTTIYANICKAL (H), THIDANADU KARA, KONDOOR VILLAGE, MEENACHIL TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ================================= R.S.A. NO.384 of 2010 ================================= Dated this the 7th day of April, 2010 J U D G M E N T Appellant/plaintiff unsuccessful in the courts below in getting the reliefs prayed for has brought up this Second Appeal. He prayed for a declaration of title, recovery of possession and damages in respect of small strip of land admeasuring less than 2.5 cents. According to the appellant, plaint schedule schedule item No.1 property measuring 1.56.40 hectares belonged to him as per Exts.A1 to A4. On the south of that property is the property of respondents. On the west of the said property there is a stone wall and on the further west it is a pathway through which respondents were gaining access to their property on the north. While so, respondents wanted to widen the said pathway for which appellant was asked to surrender a portion of his land. It is the case of the appellant that respondents trespassed into a portion of plaint schedule item No.1 and committed mischief by cutting open a way and destroying the crops. Respondents contended that appellant had offered land for R.S.A. No.384 of 2010 -: 2 :- formation/widening of the way which could admit vehicles. Respondents agreed to pay consideration of Rs.2,00,000/- for the same and accordingly Ext.B2, sale agreement was executed on 14.2.2005. As per that agreement appellant was to transfer his right, title, interest and possession over 4.33 Ares (10.760 cents) from item No.1 property for formation/widening of the road and of the total consideration appellant received Rs.25,000/- on the date of execution of Ext.B2. Following Ext.B2, appellant received the balance sale consideration of Rs.1,75,000/- and executed Ext.A5, sale deed in respect of the said 10.760 cents. Exhibit A6, agreement was also executed between the appellant and respondents as per which appellant was to remove the stone wall on the east of the existing pathway. Pursuant to Ext.A5, sale deed appellant removed trees from the portion covered by Ext.A5 which was converted into road. Courts below found in favour of the contentions raised by the respondents and non-suited the appellant. Hence this Second Appeal raising by way of substantial questions of law whether courts below are justified in placing reliance on R.S.A. No.384 of 2010 -: 3 :- Ext.B2 which is only an agreement for sale and whether interpretation given by the courts below to the relevant document is correct. It is contended by learned counsel for the appellant, placing reliance on Prabhakaran v. Anthappan (1986 KLT SN Case No.95) that when a legal interpretation can be given to the document courts must adopt that interpretation. According to the learned counsel a legal interpretation of Exts.B2, A5 and A6 would show that the 10.760 cents of land assigned to the respondents as per Ext.A5 was to be measured from the western side of the existing stone wall and not from its eastern side as found by the courts below. 2. Facts which are not in dispute are that at a time when there was a pathway along the western side of the property of appellant with a stone wall on its eastern side, appellant entered into Ext.B2, agreement with the respondents for assignment of 10.760 cents (4.33 Ares) so that respondents could widen the existing pathway enabling them to take vehicles through it to their property on the northern side. It is not disputed that pursuant to Ext.B2 R.S.A. No.384 of 2010 -: 4 :- appellant executed Ext.A5, sale deed in favour of the respondents. Now the dispute is as to whether measurement of the property covered by Ext.A5 ought to have been taken from the eastern or western side of the stone wall situated on the east of the pathway which existed originally. Courts below observed that Ext.A5, sale deed does not mention anything as to wherefrom the 10.760 cents is to be measured. Learned counsel has given me a copy of Exts.B2, A5 and A6 for perusal. In the schedule to Ext.A5 what is stated is that the 10 feet wide land is to be taken towards east from the foundation stone of the stone wall. Exhibit A5 does not say whether measurement is to be made from east or west of the foundation stone. In Ext.B2, agreement for sale it is specifically stated that the 10 feet wide space is to be measured from the eastern foundation stone of the stone wall situated on the eastern side of the (existing) pathway. There is no reason to think that there was a foundation stone on the west also and the measurement as contended by the appellant was to be taken from the western side of the eastern foundation stone. Reason persuades me to think R.S.A. No.384 of 2010 -: 5 :- that measurement as agreed was to be taken from the eastern side of the foundation stone. Thus going by Ext.B2 the 10 feet wide space is to be taken from the eastern foundation stone of the stone wall. This is further clear from Ext.A6, agreement executed between the parties on the same day as per which appellant was permitted to remove the stone wall. That also indicates that measurement was to be made from the eastern side of the foundation stone of the stone wall. Reading Exts.B2, A5 and A6 courts below are legally correct in taking the view that measurement of the 10 feet space has to be made from the eastern side of the stone wall situated towards the west of the property of the appellant. When that interpretation is taken the disputed portion comes within Ext.A5, assignment deed. That is the view taken by the courts below which is based on a proper interpretation of Exts.B2, A5 and A6. If that be so, appellant has no reason to complain since he has assigned that portion to the respondents for consideration and received the consideration. I am persuaded to think that no substantial question of law is involved requiring decision in this Second R.S.A. No.384 of 2010 -: 6 :- Appeal. Second Appeal is dismissed in limine. Interlocutory Application Nos.951 and 952 of 2010 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv