IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 RSA.No. 225 of 2011() --------------------- AS.318/2007 of ADDL.DISTRICT COURT,KOTTAYAM OS.235/2003 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------------------------------------- SREEDEVI AMMA, AGED 54, W/O.RAMADHANDRA PANICKER, PROFESSOR, NILAKKATHANATHU HOUSE, NEELAMPEROOR VILLAGE, VADAKKEERA MURI, KUTTANADU TALUK, NOW RESIDING AT ANJALI HOUSE, (PERUNNA EAST MURI, CHANGANASSERY VILLAGE,CHANGANASSERRY TALUK)PERUNNA PO, CHANGANASSERRY-686 102. BY ADV. SRI.K.K.JOHN RESPONDENT(S): --------------- 1. RADHAMMA, AGED ABOUT 66, W/O.BHASKARAN NAIR, RETIRED TEACHER, RESIDING AT RAJASREE, (PERUNNA EAST MURI, CHANGANASSERRY VILLAGE, CHANGANASSERRY TALUK) PERUNNA P.O., CHANGANASSERRY-686 102. 2. BHASKARAN NAIR, AGED 77, RETIRED PROFESSOR OF DO- DO- PERUNNA P.O.-686 102. SRI.K.C.CHARLES THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/09/2011, ALONG WITH RSA NO. 230 OF 2011 & RSA NO. 231 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA Nos.225, 230 & 231 of 2011 ............................................ DATED THIS THE 30th DAY OF SEPTEMBER, 2011 JUDGMENT Appellant is the plaintiff in O.S.235 of 2003 and the defendant in O.S.269 of 2003 and the 5th defendant in O.S.253 of 2004. R.S.A.225 of 2011 is filed challenging the decree in O.S.235 of 2003, R.S.A.230 of 2011, challenging the decree in O.S.269 of 2003 and R.S.A.231 of 2011, challenging the decree in O.S.253 of 2004. Appellant instituted O.S.235 of 2003 for fixation of the boundary and for permanent prohibitory injunction against the first respondent in R.S.A.225 of 2011, who is the plaintiff in O.S.269 of 2003 and O.S.253 of 2004 on the file of Munsiff Court, Changanassery. O.S.253 of 2004 was filed for a mandatory injunction and fixation of the boundary. Plaint schedule property in that suit is the property owned and possessed by the first respondent and plaint schedule item No.2 is the property owned and possessed by the appellant. Plaint schedule item No.3 is portion of item No.2 and item No.1. First respondent contended that first respondent obtained as per RSA 225/11 & CONN.CASES 2 assignment deed 1881/1973 of SRO, Changanassery item No.1 of the property and after purchase of the property, she was in absolute ownership and possession of the property, which is bounded on all four sides with physical boundaries. Six cents out of item No.1 lying on the south-eastern corner was sold to the appellant as per assignment deed 2035/1996 and she is in possession of that property which is described as item No.2 in that suit. Item No.3 which forms part of item Nos. 1 and 2 are shown as a way in resurvey records. A mandatory decree is sought to correct that mistake. Appellant, in O.S.235 of 2003 contended that the northern and western boundaries of the property purchased by her are to be fixed as per resurvey and if that is done, it could be seen that the construction of the building, septic tank and pit would be within the property purchased by the appellant. On these allegations, she sought to fix the boundaries of her property. 2. Learned Munsiff tried all the suits jointly. On the evidence, learned Munsiff passed a decree in favour of the appellant in O.S.235 of 2003, fixing the southern and western boundary of the property as per resurvey measurements and RSA 225/11 & CONN.CASES 3 consequently restrained the respondent from trespassing into the property. The other two suits were dismissed. The decree was challenged before Additional District Court, Kottayam in A.S.317 of 2007, A.S.318 of 2007 and A.S.319 of 2007. A.S.317 of 2007 was filed challenging the decree in O.S.269 of 2003, A.S.318 of 2007, challenging the decree in O.S.235 of 2003 and A.S.319 of 2007, challenging the decree in O.S.253 of 2004. Learned Additional District Judge, on re-appreciation of the evidence found that the trial court did not correctly appreciate the identity of the property and wrongly found that the boundary fixed by the trial court is not correct. On the evidence it was found that the northern boundary of the property covered under Ext.A1 is OI line and western boundary is OPD line shown in Ext.C1(a) plan and the property covered under Ext.A1 is plot DEFGHIOPD, which includes EFG portion in Ext.C1(a) plan. Appeals were allowed and the decree was modified accordingly. The decrees and judgments are challenged in these appeals. When the appeals were heard, on the request of the counsel appearing for the appellant, the case was sent to Kerala Mediation Centre for settlement. But the attempt was futile. RSA 225/11 & CONN.CASES 4 3. Argument of the learned counsel is that when appellant is entitled to six cents under Ext.A1 sale deed, the property as demarcated by the Commissioner and accepted by the first appellate court, in reversal of the findings of the trial court show that the extent in possession of the appellant is 2 square meter less than the actual extent. It was agreed that when the appellant is entitled to six cents, and shortage is due to the existence of the curved compound wall on the south eastern portion, the deficit of 2 square meter should be compensated on the north and if it is so compensated, septic tank will come within the property belonging to the appellant under Ext.A1 and therefore, the decree is to be modified. Learned counsel also argued that the first appellate court was not justified in fixing the properties based on Ext.C1 plan and instead findings of the trial court should have been confirmed. 4. True, the dispute is with regard to the portion of the property which lies on the northern portion of the property claimed by the appellant. If the property covered under Ext.A1 is to be identified with respect to the re-survey measurements as found by the trial court, northern boundary of the property RSA 225/11 & CONN.CASES 5 covered under Ext.A1 could only be NJ line and southern boundary NQ line. But as rightly found by the first appellate court, based on re-survey, the property cannot be fixed as re- survey is based on the possession and not title. Title to the property can be fixed only with reference to title deed and not on possession. If that be so, fixation of the boundary by the trial court was rightly not accepted by the first appellate court. Though learned counsel vehemently argued that in view of the shortage of 2 square meter, and consequent to the bent on the southern compound wall at the eastern end, the property having an equal extent on the north is to be included within the property covered under Ext.A1, I cannot agree. As is clear from Ext.A1, property is described on the north and south as straight lines. The measurements are the same on north and south. So also measurement is the same on the east and west. If that be so, as rightly found by the first appellate court the property could be fixed only as fixed by the Commissioner in Ext.C1(a) plan. The northern boundary could only be OI line and not NJ like as fixed by the trial court. So also western boundary could only be OPD line. In such circumstances, first appellate court rightly reversed RSA 225/11 & CONN.CASES 6 the decree. In such circumstances, on the facts, I find no substantial question of law is involved in the appeals. Appeals are dismissed. M.SASIDHARAN NAMBIAR, JUDGE. lgk/uj