IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 SA.NO. 13 OF 1996(B) -------------------------------- AS.43/1994 OF ADL.SUB COURT, THALASSERY O.S. NO.207 OF 1985 OF MUNSIF COURT, KUTHUPARAMBA .................... APPELLANT(S) - RESPONDENTS - DEFENDANTS : --------------------------------------------------------------------- 1. ATHIYADATH RAJAN, S/O. APPU NAIR, AGED 43 YEARS, ELECTRICIAN V.S.S.C., TRIVANDRUM. 2. ATHIYEDATH VIJAYAN, S/O. APPU NAIR, AGED 28 YEARS, BUSINESS, MAILAPPATH HOUSE, POST PATHIRIYAD, TELLICHERRY. BY ADV. SRI.T.A.RAMADASAN RESPONDENT(S) - APPELLANT - PLAINTIFF: ------------------------------------------------------ V. K. NARAYANI, D/O. KUNHAPPU, AGED 68 YEARS, NO OCCUPATION, RESIDING AT KUNIMAL, PATHIRIYAD AMSOM VENGAD PANCHAYAT, TELLICHERRY. ADV. SMT.VIDHYA. A.C THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. No.13 of 1996 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of March, 2009 J U D G M E N T ---------------------- Dispute is regarding the boundary of the properties belonging to the parties hereto, described in the A and B schedules of the plaint. 2. Facts which are not in dispute are: Plaint A and B schedule properties are the northern and southern halves of a paramba by name Kutteri veeda @ Chandroth Paramba which belonged to the thavazhy consisting of Paduvilan Krishnan Nambiar and others. As per Ext.A1, partition deed dated 27.11.1951 that property as well as other items were partitioned. The northern half of the said paramba was allotted to Krishnan Nambiar as item No.5 of the B schedule in Ext.A1. That one half is the plaint A schedule. The southern one half was allotted to the share of Narayanan Nambiar as G Schedule of Ext.A1 which is the plaint B schedule. Plaint A schedule was acquired by the respondent as per Ext.A2, dated 31.3.1980 while plaint B schedule was acquired by the appellants as per Ext.B2, assignment deed dated 16.11.1984. Respondent filed the suit on 16.9.185 alleging that in between plaint A and B schedules there is no boundary and hence that boundary may be fixed. There was also an allegation about the appellants attempting to trespass into the plaint S.A. No.13 of 1996 -: 2 :- A schedule. Appellants resisted the suit contending that there is a specific boundary between the two properties and hence fixation of boundary is not required. If at all respondent has a case that any portion of the property belonging to her (forming part of plaint A schedule) is in the possession of appellants, remedy is not to sue for fixation of boundary but for recovery of possession on the strength of title. Advocate Commissioner inspected the properties on several times and submitted reports and plans with the assistance of Surveyor. Trial court originally dismissed the suit on 31.1.1990. Respondent challenged that dismissal in A.S. No.52 of 1990. The first appellate court as per judgment dated 25.1.1992 found that there is no acceptable and permanent boundary between plaint A and B schedules, set aside the dismissal of the suit and remanded the case to the trial court for fresh consideration. After remand, Exts.C7 to C10 reports and plans were submitted by the Advocate Commissioner (C.W.2) with the assistance of a Surveyor. Learned Munsiff was not satisfied with those reports and plans and again dismissed the suit. The unrelenting respondent took up the matter in A.S. No.43 of 1994. The first appellate court (Additional Sub Court, Thalassery) accepted plan No.2, in Ext.C8 and directed fixation of boundary between plaint S.A. No.13 of 1996 -: 3 :- A and B schedules as per that plan and granted decree accordingly. Appellants/defendants are aggrieved and have come up in Second Appeal. 3. Following substantial questions of law are raised for a decision: (i) Whether the court below was correct in law accepting the total extent to be available for division into equal halves, where the partition deed gave clear lenial measurements? (ii) Whether the court below was not contradicting itself when it found that the entire extent in the sub division is not available for partition and yet adopted plan No.2 of Ext.C8 dividing the entire extent as shown in B3? (iii) Could a suit for fixation of boundary be a substitute for a suit for recovery of possession? 4. It is contended by the learned counsel for appellants that the judgment of the first appellate court proceeded merely based on equitable consideration and not with reference to the entitlement of the parties as per the documents of tile. Learned counsel contends S.A. No.13 of 1996 -: 4 :- that though the first appellate court proceeded on the assumption that both sides are in possession of 70 cents each, appellants do not really have 70 cents in their possession and hence, fixation of boundary as per plant No.2 of Ext.C8 is not warranted. Learned counsel for appellants requested for remand of the case for fresh consideration if at all it is found that fixation of boundary is required. Learned counsel for respondent contended that there was no permanent and fixed boundary between A and B schedules as found by the first appellate court while allowing A.S. No.52 of 1990 as per judgment dated 25.1.1992. That finding was not challenged and hence appellants cannot now contend that there is a boundary in existence between to properties. Learned counsel also contended that it is on the evidence on record that the first appellate court accepted plan No.2 in Ext.C8 and no question of law is involved. 5. There cannot be any dispute that a suit for fixation of boundary is maintainable as it is a suit of a civil nature coming under Section 9 of the Code of Civil Procedure. At the same time, fixation of boundary cannot be a short cut to over reach other disputes as to title and possession and claim property in the possession of another. But in this case there is no dispute regarding the title or possession of S.A. No.13 of 1996 -: 5 :- plaint A and B schedules between the appellants and the respondent. Both sides trace their title through Ext.A1 partition deed dated 27.11.1951. In that partition deed the entire property referred to as Kutteri veeda @ Chandroth Paramba was divided into two equal halves, the northern portion going to the share of Krishnan Nambiar and the southern portion going to the share of Narayanan Nambiar which by subsequent assignments reached the appellants and respondent. On going through the evidence it is seen that there is no dispute between the parties as to the common boundaries of the entire extent on the 4 sides. It is also admitted by both sides that no portion of the property lying within the said common boundaries is in the possession of a third party. Therefore possession of the entire property is with the appellants and respondent. 6. So far as the existence of a boundary in between the two halves (plaint A and B schedules) is concerned, it is true that the Advocate Commissioner who initially inspected the properties found a ridge like structure at a height of about half a foot upto the middle portion of the properties. But the Commissioner was not able to say about its oldness and going by the records the ridge appeared to be a fresh one. The Commissioner in his evidence as D.W.3 stated that the S.A. No.13 of 1996 -: 6 :- said ridge reached the bottom of one or two coconut trees. He could not say whether it was a boundary. It was not an old one. D.W.1, brother of appellant No.1 stated that the ridge was old, but the Commissioner D.W.3, has shown it as a new ridge (in the report). First appellate court while deciding A.S. No.52 of 1990 was not satisfied that the said ridge formed the boundary between plaint A and B schedules, observed that such a ridge and that too only upto the middle of the property cannot be a substitute for a permanent boundary and found that the boundary is to be fixed. Concededly that part of the remand judgment in A.S. No.52 of 1990 was not challenged by the appellants and hence as rightly pointed out by the learned counsel for the respondent, that question cannot be reagitated in this Second Appeal. 7. Then the question is whether there is any dispute as to the respective possession of A and B schedules. Though in Ext.A1, these properties are described by kole measurements, in none of the subsequent documents relied on by the parties description by kole measurement is given. Instead, properties are described by its extent, i.e. 70 cents each. The Advocate Commissioner (C.W.2) inspected the properties with the assistance of a Surveyor and S.A. No.13 of 1996 -: 7 :- prepared Exts.C7 to C10. Exhibit C8 takes in plan Nos.1 and 2 and the latter was accepted by the first appellate court. Though it is contended by the learned counsel for appellants that the said plan did not conform to Ext.B3 in that the entire extent referred to in Ext.B3 is not revealed by plan No.2 of Ext.C8, I do not find any basis for that contention. For, C.W.2 did not say so. To a hypothetical question whether (if) any portion of the entire extent is in the possession of third parties the extent available with the (common) boundaries will be 1.40 acres, the answer was in the negative. It is admitted by both sides that no portion of the property within the common boundaries on all four sides is in the possession of third parties. Evidence of C.W.2, the Advocate Commissioner is consistent with the descriptions in all documents of title subsequent to Ext.A1 relied on by the parties as to the total extent of 1.40 acres and going by the division as per Ext.A1, Krishnan Nambiar and Narayanan Nambiar were allotted one half each. Thus their entitlement was 70 cents each and if that be so, as per Exts.A2 and B2 entitlement of appellants and respondent is also 70 cents each. That precisely is what the Advocate Commissioner has stated in plan No.2 of Ext.C8 and accepted by the first appellate court also. I do not find reason to interfere the same in the Second Appeal S.A. No.13 of 1996 -: 8 :- since no error of law is involved and the finding rested on a proper appreciation of the evidence. 8. On the request of the learned counsel for appellants for a further remand, I must note that had this appeal been alive for another one more year, the parties hereto would have been able to celebrate the Silver Jubilee of this litigation. I do not find justifiable reason to send back the case for any purpose whatsoever. Second Appeal fails. It is dismissed. No costs. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== S.A. NO.13 OF 1996 =================== J U D G M E N T 5TH MARCH, 2009