IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 SA.No. 634 of 1995(A) --------------------- AS.72/1986 of SUB COURT,KOTTARAKKARA OS.27/1982 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANT(S)/APPELLANTS/APPELLANTS: -------------- (*)1. NARAYANAN SREEDHARAN, KOCHUTHUNDIL VEEDU, KOLANNOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK. (DIED. RECORDED AND IMPLEADED) 2. AMMAKUNJU SARADA, -DO- -DO- ADDL.APPELLANTS IMPLEADED: 3. SREEDHARAN SREEKUMAR, KOCHUTHUNDIL VEEDU, KOLANOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK. 4. SREEDHARAN SYAMKUMAR, -DO- -DO- 5. SREEDHARAN HARIKUMAR, -DO- -DO- (*)THE SECOND APPELLANT, AMMAKUNJU SARADA IS RECORDED AS THE LEGAL REPRESENTATIVE OF THE DECEASED FIRST APPELLANT AND ADDITIONAL APPELLANTS 3 TO 5 ARE IMPLEADED AS THE OTHER LRS OF THE DECEASED FIRST APPELLANT AS PER ORDER DATED 11.2.2000 ON CMP 19/2000. BY ADV. SRI.C.V.VASUDEVAN SMT.V.SUJATHA RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- (**)1. RAGHAVAN, CHARUVILA VEEDU, KOLANOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK. (DIED) 2. SAROJINI THANKAMONI, -DO- -DO- 3. RAGHAVAN CHANDRABHANU, -DO- --DO- 4. RAGHAVAN BALACHANDRAN, -DO- -DO- 5. RAGHAVAN PRATAPACHANDRAN, -DO- -DO- SA NO.634/1995 2 6. SAROJINI RADHAMANI, -DO- -DO- 7. RAGHAVAN SATHEESABABU, -DO- -DO- (**)AS PER THE ORDER DATED 2.2.1996 IN CMP.1623/1995 IT IS RECORDED THAT R2 TO R7 ARE THE LEGAL HEIRS OF DECEASED FIRST RESPONDENT. ADV. SRI.K.K.JOHN FOR R3 TO R7 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.634 of 1995 -------------------------------------- Dated this the 21st day of December, 2009. JUDGMENT Appellants challenge the concurrent verdict entered by the courts below that the suit property over which they are claiming title and possession is not identifiable and that they failed to prove title over the said property. Substantial questions of law framed for a decision are: i. Whether the courts below are correct in dismissing the suit for want of identity of the property? ii. Whether the trial court is justified in dismissing the application for amendment of the plaint to incorporate prayer for recovery of possession? It is contended by learned counsel for appellants that findings entered by the courts below are erroneous and that at any rate it was wrong to dismiss I.A.No.2257 of 1985 for amendment of the plaint to incorporate prayer for recovery of possession. 2. The dispute concerns 2½ cents in survey No.625/19. Appellant No.1 is the husband of appellant No.2. Respondent No.1 is the brother-in-law of appellant No.1. Respondent Nos.2 to 7 are the children of respondent No.1. Appellants claimed title over the property as per Ext.A1, partition deed No.4600 SA No.634/1995 2 of 1951 executed in the family of appellant No.1 and respondents 2 to 7. According to them as per the said partition 15 cents on the east was allotted to Kumaran, 33 cents on its west was allotted to Lakshmi and 19 cents on the further west was allotted to appellant No.1. The remaining western portion was allotted to Sarojini, wife of respondent No.1 and mother of respondent Nos.2 to 7. So far as the 15 cents is concerned, it is stated that the said property was sold in auction and purchased by one Chandramathi who sold it to appellant No.2 as per Ext.A2, assignment deed dated 27.1.1959. Appellant No.2 claimed to have purchased the 33 cents allotted to Lakshmi as per Ext.A3, assignment deed dated 28.4.1970. Thus appellants claimed to be in possession of the said 15 and 33 cents. The further case of appellants is that the property allotted to Sarojini on the extreme west was only 7½ cents (as against 10 cents referred to in the partition deed) and that respondents are trying to trespass into the suit property (2½ cents) which according to the appellants belonged to and is in their possession. Respondents resisted the suit contending that what was allotted to Sarojini, wife of respondent No.1 and mother of respondent Nos.2 to 7 is not 7½ cents but 10 cents and the disputed 2½ cents formed part of the said 10 cents. Altogether there was 77 cents which was divided at the time of partition by link measurements and cent measurement. Prior to the partition property was divided and the parties were in separate possession and enjoyment demarcating boundary for each item. According to the respondents, boundary of the 10 cents allotted to Sarojini was also demarcated. Respondents denied SA No.634/1995 3 title claimed by the appellants over the 2½ cents which according to them form part of 10 cents allotted to Sarojini. Appellants examined PW1 and proved Exts.A1 to A4. Exts.C1 and C3 are reports and plan prepared by the advocate commissioner. In Ext.A1 total extent of property, 77 cents is divided into four plots. Going by Exts.A1 to A3, entitlement of appellants is for 67 cents, the 10 cents on the extreme west going to Sarojini (as fifth schedule in Ext.A1). Though extent of property given to Sarojini is stated to be 10 cents, the link measurements takes its extent only to 7½ cents. Dispute is regarding the remaining 2½ cents. If the case of appellants were true, the said 2½ cents must go with the 19 cents allotted to appellant No.1 (ie., is on the immediate east of the plot allotted to Sarojini). But the advocate commissioner was not able to identify the said property. Ext.C3 is the plan prepared by the advocate commissioner. The 7.750 cents in the admitted possession of Sarojini is shown in green shade while the disputed 2½ cents is given in red shade. According to the appellants red shaded portion is part of the 19 cents (allotted to appellant No.1 on the immediate east of the property allotted to Sarojini) but the commissioner was not able to identify the said 19 cents. Hence it was not possible to say that the disputed 2½ cents formed part of the said 19 cents. As per Ext.A1 the property allotted to Sarojini is on the extreme west, other properties dealt with under Ext.A1 being on its east. But in the plaint schedule the property on the east is stated to be the property of Sarojini. In other words going by the plaint schedule even on the east of the disputed property Sarojini SA No.634/1995 4 has a plot of land belonging to her which goes against the contention raised by the appellants based on Ext.A1. Commissioner has stated in Ext.C3 that the 2½ cents (suit property) is on the east and south of the plot allotted to Sarojini. There is no case for the appellants that on the south of the 7½ cents allotted to Sarojini they were allotted any land as per Ext.A1. On the other hand their consistent case is that the 2½ cents forms part of 19 cents allotted to appellant No.1 on the immediate east of the property allotted to Sarojini. Thus, there was no proper identification of the disputed property. It is settled that in a suit based on title it is necessary to have a proper measurement of the property and a plan since title cannot be decided by surmises and conjunctures. Courts below found that identity of the property is not proved and going by description of the suit property it does not tally with the claim over 2½ cents marked in Ext.C3. 3. So far as the application for amendment of the plaint (I.A.No.2257 of 1985) is concerned, attempt was to incorporate a prayer for recovery of possession of the suit property. Trial court observed that attempt of the appellants was to recover property situated on the south and east of the 7½ cents admittedly belonging to Sarojini though appellants have no claim over the property on the south of the said 7½ cents going by the plaint averments. I also find that the application was dismissed as not pressed on 23.11.1983. Therefore the contention based on the amendment application (I.A.No.2257 of SA No.634/1995 5 1985) does not survive. Findings of the courts below are based on the available evidence. Substantial questions of law framed are answered accordingly. The Second Appeal is dismissed. No cost. THOMAS P.JOSEPH, Judge. cks SA No.634/1995 6 Thomas P.Joseph, J. S.A.No.634 of 1995 JUDGMENT 21st December, 2009.