IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 RSA.No. 888 of 2004() --------------------- AS.131/1999 of PRL.SUB COURT,IRINJALAKUDA OS.163/1996 of PRL.M.C.,IRINJALAKUDA .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. KUMARAN, PERAMBRATH CHERIAN, ALUR VILLAGE & DESOM, MUKUNDAPURAM TALUK. 2. KORAN, S/O. PERAMBRATH RAMAN, DO. 3. KELAN, S/O. PERAMBRATH KORAN, DO. BY ADV. SRI.RENJITH THAMPAN RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------- 1. DEVAKY W/O. KOLLIKKARA RAMAKRISHNAN, ALOOR VILLAGE & DESOM, MUKUNDAPURAM TALUK. 2. RAMAKRISHNAN, S/O. KOLLIKKARA RAMAKRISHNAN, DO. ADV. SRI.ANCHAL C.VIJAYAN FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.888 OF 2004 --------------------------------------------- Dated 20th June, 2011 JUDGMENT Defendants in O.S.163/1996 on the file of Munsiff court, Irinjalakuda are the appellants. Plaintiffs are the respondents. Respondents instituted the suit seeking a decree for declaration of title to the plaint A,B,C,D and E schedule properties and recovery of possession of plaint C and D schedule properties, allegedly part of plaint A and B schedule properties trespassed upon by the appellants and for a mandatory injunction restraining further trespass and for fixation of the boundary. Respondents contended that item Nos.1 and 2 of the plaint A schedule properties belonged to them under Exts.A1 and A2 sale RSA 888/04 2 deed obtained in 1974 and under Ext.A1 sale deed a way to the property from the eastern side having a measurement of 3 kols was also purchased and subsequently under Ext.A3 sale deed of 1975 respondents purchased the property immediately to the north of the way assigned under Ext.A1, from Koran the predecessor in interest of the appellants and subsequently under Ext.A4 sale deed E schedule property which lies to the south of the way, purchased under Ext.A1, was also purchased by the respondents and they have been in absolute possession and enjoyment of the properties. It is contended that appellants have right only over the properties covered under Ext.B1 partition deed, which lies to the north of the property belonging to the appellants excluding the plaint B schedule property and they trespassed into a small portion of the plaint A RSA 888/04 3 and B schedule properties on the west and east and plaint C and D schedule properties are the trespassed portion and respondents are entitled to get recovery of possession of the said properties based on the title. Respondents also sought fixation of the boundaries of plaint A, B and E schedule properties. Respondents filed a written statement admitting assignment under Ext.A3 sale deed, but contending that they are only in possession of the property covered under D schedule of Ext.B1, less the property assigned under Ext.A3 namely, the southern portion and while assigning the property under Ext.A3, boundaries were fixed by planting Gliricidia plants and they have been in possession of the remaining properties and respondents are claiming right based on re-survey and even if, any portion of the property in their possession falls within RSA 888/04 4 survey number claimed by the respondents, their rights have been lost by adverse possession and therefore, they are not entitled to the decree sought for. 2. Learned Munsiff appointed a Commission and directed the Commissioner to submit a report after identifying the properties with reference to the title deeds with the assistance of Taluk Surveyor. Commissioner submitted Ext.C1 report and C1(a) plan. On the application filed by the appellants raising objection to the identification, the Commissioner was directed to submit a further report. Commissioner submitted Ext.C2 report and C2(a) plan. 3. Learned Munsiff on the evidence granted a decree holding that respondents have title to plaint A,B and E schedule properties and finding that plaint C schedule property RSA 888/04 5 being part of plaint A schedule property and plaint D schedule property being portion of plaint B schedule property are in the possession of the appellants and respondents have title to that properties and their title is not lost by adverse possession and therefore, granted a decree for recovery of possession of plaint C and D schedule properties. Decree for injunction was granted restraining appellants from committing further trespass. Appellants challenged judgment before Sub Court, Irinjalakuda in A.S.131/1999. Learned Sub Judge on re-appreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Second appeal was admitted formulating the following substantial questions of law. RSA 888/04 6 In case where recovery of two items of property, having extend of ½ cents each sought, and in the Commissioner's report only a lesser extend of land is shown to be in the alleged possession of the defendant, can a decree for recovery of possession “as prayed for” can be passed. 5. Learned counsel appearing for the appellants and respondents were heard. 6. Title of the respondents to the property covered under Exts.A1 to A4 as such are not disputed. Under Exts.A1 and A2, appellants obtained title to the property in survey No.235/3, 235/4 and 236/1 (though survey No.235/4 is not shown in the document) along with the way which starts from the north eastern corner of the said property having a width of 3 kols and runs towards the east and reaches the eastern Panchayat road. Ext.A1 RSA 888/04 7 shows that the right obtained over the way is not a right of way but the very title to the property. Subsequently respondents admittedly purchased the property which lies immediately north of the said way, having a width of 1 kol from Koran, the predecessor in interest of the appellants evidently for widening the way. Thus, in addition to the way obtained under Ext.A1, under Ext.A3 respondents obtained additional extent. Thus, the way was having a width of 4 kols. Later in 1985, under Ext.A4 sale deed respondents purchased the property which lies immediately to the south of the way covered under Ext.A1. Under Ext.A3 the property was assigned by Koran, who obtained that property as D schedule of Ext.B1 partition deed. Actual dispute between the parties is with regard to the exact identity and measurement of the property covered under RSA 888/04 8 Ext.A3. Appellants would admit that out of the property obtained as D schedule, the southern most portion having a width of 1 kol was transferred under Ext.A3 and at that time boundaries were fixed and gliricidia plants were planted and the remaining property covered under D schedule of Ext.B1 has been in their possession and they did not trespass into any portion in the possession of the respondents. The Commissioner though submitted Ext.C1 report, demarcating the properties divided under Ext.B1 partition deed as well as identifying the properties covered under Exts.A1 to A4 sale deeds, at the instance of the appellants, the Commissioner was directed to submit a further report and the Commissioner thereafter submitted Ext.C2 report and C2(a) plan. Ext.C2(a) plan consists of two plans and plan No.2 is the enlarged portion of the way RSA 888/04 9 namely, the way purchased under Ext.A1 as well as under Ext.A3. 7. When the encroached portion as per Ext.C1(a) plan lies on the north-western north- eastern portion of the plaint B schedule property purchased under Ext.A3, Ext.C2(a) plan shows that the alleged trespassed area is in fact on the middle and respondents are in possession of the eastern and western portion, which were shown as trespassed area in Ext.C1(a) plan. Unfortunately, neither the trial court nor the first appellate court considered this discrepancy and granted decree for recovery of possession of plaint C and D schedule properties without explaining why the identification made in Ext.C2(a) plan is not accepted and for what reason a decree is to be granted based on Ext.C1(a) plan. 8. There is no dispute with regard to RSA 888/04 10 the plaint C schedule property as demarcated by the Commissioner in Ext.C1(a) plan. It is seen that even in I.A.1868/1998, the application filed by the appellants to remit Ext.C1 report and C1(a) plan, no objection was taken with regard to the identification of item Nos.1 and 2 of the plaint A schedule property or demarcation of the western portion as the trespassed area. The dispute was actually with regard to the plaint D schedule alleged trespassed area as demarcated in Ext.C1(a) plan. When the title of the said property is declared and a decree for recovery of possession is granted, courts below should have made it clear why a decree is to be passed in accordance with Ext.C1(a) plan and not in accordance with Ext.C2(a) plan. I have gone through the entire evidence and found that even the evidence of PW5, the Surveyor will not RSA 888/04 11 enable the courts to hold that the property covered under Ext.A3 was properly identified and demarcated in Ext.C1(a) plan. As rightly contended by the appellants when the respondents purchased E schedule property under Ext.A4 assignment deed and it is the property which lies immediately to the south of the way purchased under Ext.A1 sale deed, for a proper identification of the properties, the property covered under Ext.A4, namely, E schedule property is to be identified with reference to the measurement shown in Ext.A4. If so identified, including the way obtained under Ext.A1 and the property purchased under Ext.A3 sale deed, could only be the property as demarcated by the Commissioner under plan No.2 of Ext.C2(a) plan. If that be so, decree for recovery of possession of plaint D schedule property cannot be granted as plaint D RSA 888/04 12 schedule, as demarcated in Ext.C2(a) plan does not confirm to the plaint D schedule property. In spite of the identification made by the Commissioner in Ext.C2(a) plan, respondents have not amended the plaint and sought a decree for encroached portion as demarcated by the Commissioner in Ext.C2(a) plan. In such circumstances, respondents are not entitled to a decree for recovery of possession of the plaint D schedule property as granted by the courts below. 9. Similarly, it is seen that even though the learned Munsiff did not fix boundaries sought for in the plaint, respondents/plaintiffs did not challenge the decree. Learned counsel appearing for the appellants and respondents pointed out that evidence establish that there is a physical boundary now separating the properties in the RSA 888/04 13 possession of the appellants and respondents abutting the property covered under Ext.A3 sale deed and that physical boundary is the separating boundary between the two properties. If so, the parties are at liberty to construct a compound wall on the boundaries. Respondents are entitled to decree for recovery of possession of only plaint C schedule property. Appeal is allowed in part. Decree and judgment passed by Munsiff, Irinjalakuda in O.S.163/1996 as confirmed by Sub Judge in A.S.131/1999 is modified as follows; Respondents/plaintiffs have title to plaint A, B and E schedule properties. Plaint A schedule property is as demarcated by the Commissioner in Ext.C1(a) plan. Plaint B and E schedule properties are as demarcated by the Commissioner in Ext.C2(a) plan. Appellants have title to the plaint C schedule property being RSA 888/04 14 part of plaint A schedule property. Plaintiffs are entitled to recovery of possession of plaint C schedule property as demarcated by the Commissioner in Ext.C1(a) plan on the strength of their title. Respondents/plaintiffs are not entitled to the decree for recovery of possession of plaint D schedule property. Physical boundary which now separates item Nos.1 and 2 of the plaint A schedule property from the northern property and plaint B schedule property from the northen F schedule property in the possession of defendants is the separating boundary as shown in Ext.C2(a) plan. Plaintiffs or the defendants are entitled to put up boundary on the existing physical boundaries. Defendants are restrained by a permanent prohibitory injunction from trespassing into the plaint A schedule property as demarcated in Ext.C1(a) plan and B and E RSA 888/04 15 schedule properties in their possession as demarcated in Ext.C2(a) plan. Parties to suffer the respective costs. Ext.C1(a) and C2(a) plans will form part of the decree. M.SASIDHARAN NAMBIAR, JUDGE. uj.