IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 SA.No. 858 of 1995() -------------------- AS.80/1990 of ADDL.DISTRICT COURT, THRISSUR OS.181/1981 of MUNSIFF COURT,CHAVAKKAD .................... PLAINTIFF/RESPONDENT/APPELLANT: ------------------------------------ 1. VELAYUDHAN, S/o. ASSARI PADINJAREPURAKKEL RAMANKUTTY, BRAHMAKULAM AMSOM & DESOM CHITTATTUKARA, CHAVAKKAD TALUK PIN-680 511, TRICHUR DISTRICT (Died LRs IMPLEADED) *A2. AMMINI, W/o. LATE VELAYUDHAN, SUNDARI SADAN, BRAHMAKULAM AMSOM & DESOM CHITTATTUKARA, CHAVAKKAD TALUK THRISSUR DISTRICT, PIN -680 511 *A3. VASAN, S/o.LATE VELAYUDHAN, ...do...do.. *A4. VIJAYAN, S/o. LATE VELAYUDHAN,...do...do.. *A5. VENU, S/o. LATE VELAYUDHAN, ...do...do.. *A6. UNNIKRISHNAN, S/o. LATE VELAYUDHAN, ...do...do.. *A7. SUDHAKARAN, S/o. LATE VELAYUDHAN, ...do...do.. *A8. LEELA, D/o. LATE VELAYUDHAN, ...do...do.. (ARE IMPLEADED AS ADDITIONAL A2 TO A8 (AS THE LRs of THE DECEASED SOLE APPELLANT) AS PER ORDER DATED 14-07-2008 IN I.A.2275 OF 2004) BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN DEFENDANT/APPELANT/RESPONDENT: ------------------------------------------ NANU, S/O. ASSARI PADINJAREPURAKKEL RAMAKUTTY, BRAHMAKULAM AMSOM & DESOM CHITTATTUKARA, CHAVAKKAD DISTRICT TRICHUR DISTRICT, PIN-680 511 ADV. SRI.M.R.VENUGOPAL FOR R1 SMT.DHANYA P.ASHOKAN FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- S.A.No.858 of 1995 --------------------------------------- Dated this 14th day of September 2009 JUDGMENT Plaintiff in O.S.No.181 of 1981 of the court of learned Munsiff, Chavakkad who was successful in that court in getting a decree for recovery of possession but lost in the first appellate court has come up in second appeal. This court framed the following substantial questions of law: 1. Where the interpretation given by the first appellate court on the relevant recitals in Ext.A1 extracted in its judgment is sustainable in law and if not whether the conclusion arrived by the first appellate court based on such interpretation is sustainable in law? 2. Has not the first appellate court misinterpreted and misunderstood the recitals in Ext.A1 to give an erroneous finding that appellant is only entitled to 17cents of land.? 3. Was the first appellate court justified in reversing judgment of the trial court only for the reason that it disagreed with the conclusion reached by the trial court, without finding that the reasoning given by the trial court is illegal? 4. Whether judgment entered by the first appellate court without considering the entire evidence on record is sustainable in law? 2. Appellant and respondent are brothers. It is not disputed that as per Ext.B1, partition deed a total extent of 35 cents in re- S.A.No.858 of 1995 2 survey No.12/2 was allotted to appellant, respondent and their mother and after death of mother, appellant and respondent partitioned the property as per Ext.A1 as per which item No.1 of Ext.A1 which took in 3 taks was allotted to the share of appellant and item No.2 (Ext.A1) was allotted to the share of respondent. It is while so, alleging trespass into the eastern portion of Item No.1 of Ext.A1, appellant laid the suit for recovery of possession on the strength of his title. The property described in the A schedule of plaint is item No.1 of Ext.A1 over which appellant claimed right, title, interest and possession. Plaint B schedule is the disputed portion towards the east of the plaint A schedule allegedly trespassed upon by the respondent. Appellant examined PWs.1 and 2 and proved Ext.A1. Respondent examined DWs.1 to 4 and proved Ext.B1. Ext.C1 and C2, report and sketch prepared by advocate commissioner were also marked in evidence. Learned Munsiff initially found that identity of the property is not established and dismissed the suit. That was challenged by the appellant in A.S.No.92 of 1984. Judgment and decree were set aside and the case was remitted to trial court with the direction to depute an advocate commissioner to identify the property. Thereafter PW3, advocate commissioner prepared Ext.C3 and C4. 3. Learned Munsif found that the red shaded portion in Ext.C2 is the area trespassed upon by respondent which formed part of plaint S.A.No.858 of 1995 3 A schedule and allowed recovery of possession to that portion. Learned Additional District Judge found that trial court was not correct in taking kole measurements referred to in Ext.A1 in deciding the extent of property. First appellate court found that it is the extent stated in Ext.A1 by cent which suited the facts and circumstances of the case and accordingly non suited the appellant. That finding is under challenge in this second appeal on the substantial questions of law which I have first above stated. Learned counsel for appellant contend that first appellate court has reversed the well reasoned judgment of trial court without stating any valid reason which itself is illegal. It is also contended by learned counsel that advocate commissioner has rightly found in Ext.C2 that the red shaded portion is the area trespassed upon over which appellate has title and hence first appellate court was not justified in law and facts in reversing judgment and decree of trial court. Learned counsel has placed reliance on the decision of this court in P Velu Vs. P Padmavathi Amma (1984(1) ILR Kerala 30) to contend that in the matter of interpretation of deed, when there is doubt as to whether it is the description of the property, extent or boundaries which is to be preferred the one which is more certain and reliable is to be adopted. Learned counsel submitted that judgment and decree of the first appellate court is to be reversed. Learned counsel for respondent in response contended that evidence S.A.No.858 of 1995 4 on record would show that what is alloted to the appellant as per Ext.A1 as item No.1 is “only 17cents” and hence appellant cannot claim anything in excess of the said 17 cents. According to the learned counsel, intention of the parties to Ext.A1 is clear that what was alloted to the appellant is “only 17 cents” and nothing more. Learned counsel has placed reliance on the decision in Krishnamurthi Iyer Vs. Janaki Amma (1957 KHC 202) to contend that when there is conflict between measurement, extent, boundaries etc, the intention of parties is to be ascertained with reference to the recitals in the document. 4. There is no rigid rule that when there is dispute between extent, measurement, boundaries, survey no. etc., one or the other must prevail over the other. In such situation there must be a proper interpretation of the deed to find out what exactly was the intention of parties. The proper course is to adopt the one description which is more suitable and relevant to the facts of the case. This proposition is not disputed by learned counsel on either side. The contention of learned counsel for appellant is that so far as this case is concerned, the description of the property by extent cannot be preferred to the description by kole measurements. 5. It is not disputed that Ext.B1 is the prior document of Ext.A1 and there, what is alloted to the share of appellant, respondent S.A.No.858 of 1995 5 and their mother is only 35cents out of a total extent of 58 cents in R.S.No.12/2. Therefore after the death of mother, what was available for partition for appellant and respondent is only 35 cents. Going by item No.2 in Ext.A1, the portion alloted to the appellant takes in 3 taks with the kole measurements stated therein and, going by that kole measurements, total extent must be 19-1/3rd cents. Immediately on the east of item No.1 in Ext.A1 is item No.2 alloted to the respondent where also kole measurement is given and the total extent alloted to the respondent is stated as 18 cents. Learned counsel for appellant contends that going by the kole measurement of item No.2 in Ext.A1, total extent will be 19 and 11/2 cents. There is a recital in Ext.A1 that parties thereto are convinced about the extent of properties as on the date of Ext.A1 and that there shall not be any dispute or claim based on extent thereafter. Further recital in the schedule of item No.1 in Ext.A1 is that appellant will have a right to have eaves dropping from the kitchen on the eastern portion of item No.1 alloted to him. Learned Additional District Judge after referring to the above recital in Ext.A1 (extracted in the judgment itself) stated that it is clear that even at the time of Ext.A1, appellant had no land east of eastern side of kitchen situated in item No.1. Otherwise there was no necessity to reserve a right for appellant in Ext.A1 for eaves dropping from the eastern side of the kitchen. Learned counsel for appellant pointed out S.A.No.858 of 1995 6 from Exts.C1 and C2 that even if it is assumed so, kitchen portion is extending only from point 'n' in Ext.C2 towards south at the portion where the width of the alleged trespassed area is given as 5 1/2 feet. Further south or north of point 'n' no portion of kitchen comes. But, there is no indication in Ext.A1 as contended by learned counsel that the portion on the north beyond point 'n' or, beyond south of the area where the width of alleged trespassed area is shown as 51/2 feet appellant was allotted any land. Further indication from Ext.A1 is that while in the schedule of item No.2 though, kole measurement is given which would take the total extent to 19-1/3 cents, it is specifically stated that entitlement of appellant is for “only 17 cents” which indicated that the parties at the time of Ext.A1 intended to allot to the appellant “only 17cents”. As against the said description of “only 17 cents” so far as respondent is concerned, what is stated about the share allotted to him as item No.2 in Ext.A1 is “18 cents” without using the prefix “only”. It has come in the evidence of PW1 that even at the time of Ext.A1, a boundary was put up in between item No.1 and 2 in Ext.A1 by way of fence and that fence was available at the time of suit also though commissioner has not adverted to that aspect. In other words it is admitted that even at the time of the suit there was physical boundary between the properties showing separate possession and enjoyment of appellant and respondent. S.A.No.858 of 1995 7 6. The further fact revealed from Ext.C2 is that certain portions of A schedule (item No.1 in Ext.A1) are in the possession of one Kittu and Mohammed which the advocate commissioner has marked in Ext.C2 in blue shade. When attention of PW1 was invited to the said alleged trespass, he stated that he learned about it only from Ext.C2 and appropriate legal action will be taken against those encroachments after this litigation is over. First appellate court has referred to the various recitals in Ext.A1, interpreted the document and concluded that as against the kole measurements it is the description by extent that is more proper and acceptable on the facts of the case. I find from the judgment of trial court that learned Munsiff proceeded on the assumption that kole measurements in Ext.A1 is correct but, no reference was made to the description of the extent by cents and, in particular the wording in item No.1 in Ext.A1 that what is allotted to the appellant is “only 17 cents”. It is in the above circumstances that first appellate court interpreted Ext.A1 to find that what is alloted to the appellant is “only 17 cents”. I find nothing illegal or improper in the first appellate court doing so and on the facts and circumstances of the case appellate court has correctly appreciated the evidence and interpreted the document and come to proper conclusion. On hearing learned counsel on both sides and perusing the judgments I find no reason to interfere with the view taken by the first appellate court. S.A.No.858 of 1995 8 The substantial questions of law raised and first above stated are answered accordingly. Resultantly the second appeal fails. It is accordingly dismissed in limine. No cost. THOMAS P JOSEPH, JUDGE Sbna/