IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 RSA.No. 963 of 2009() --------------------- AS.74/2004 of DISTRICT COURT, PALAKKAD OS.381/1997 of MUNSIFF COURT, CHITTUR .................... APPELLANT/IST APPELLANT/2ND PLAINTIFF --------------------------------------------------------- DIVAKARAN, S/O.LAKSHMI, RESIDING AT KARINJALIPALLAM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): --------------- 1. GANGADHARAN, S/O.CHAMIYAR. 2. SATHYARAJ, S/O.CHAMIYAR. 3. THANKA, W/O.LATE CHAMIYAR. 4. CHANDRAN, S/O.LATE CHAMIYAR. 5. HARIDAS, S/O.LATE CHAMIYAR. 6. KRISHNAVENI, D/O.LATE CHAMIYAR. 7. REMAMANI, D/O.LATE CHAMIYAR. 8. PARTHAN, S/O.LATE CHAMIYAR. 9. SARADA, D/O.APPUKUTTAN. RSA NO.963/2009 2 10. BAKTHAVALSALAN, S/O.APPUKUTTAN. ALL ARE RESIDING AT KARINJALIPALLAM, CHITTUR TALUK, PALAKKAD DISTRICT. ADV. SRI.SAJAN VARGHEESE K. FOR (CAVEATOR-R1) SRI.LIJU. M.P(CAVEATOR-R1) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.963 of 2009 -------------------------------------- Dated this the 13th day of November, 2009. JUDGMENT Respondent No.1 appears through counsel. 2. Having successively failed in the attempt to recover possession of a small strip of land measuring 2.22 cents, plaintiff No.2 has come up in Second Appeal urging by way of substantial question of law whether the courts below were right in dismissing the suit without conducting proper enquiry into title over disputed area – plaint B schedule. Parties are referred as plaintiffs and defendants as in the trial court. 3. Plaintiff No.1 died pending the suit. Her other legal representatives were impleaded as supplemental plaintiff Nos.3 and 4. Plaintiffs claimed that plaint A schedule property belonged to deceased plaintiff No.1 and she obtained purchase certificate (Exts.A1 and A1(a), are the original and photocopy of the purchase certificate). According to the plaintiffs, defendants have property on the south and west of plaint A schedule and on 10.12.1996 they demolished the fence on their east and north and put up a new fence encroaching into the plaint A schedule. The trespassed area in respect of which recovery is claimed is the plaint B schedule. Defendant Nos.1 to 3 denied the title and possession claimed by the plaintiffs over plaint A and B schedules. They claimed that there was a partition in their family in the year 1973 and in that partition, A schedule RSA No.963/2009 2 was allotted to defendant No.1 on the east of item No.12. There is a channel which is being maintained by the Government. They denied that plaint B schedule formed part of the property belonging to deceased plaintiff No.1. Trial court negatived the contention of plaintiffs regarding title and possession of plaint B schedule. First appellate court has confirmed that. It is contended by learned counsel for plaintiffs that there was no proper enquiry into title claimed by the plaintiffs over suit property and the dismissal of the suit is not justified. 4. Dispute is regarding a small strip of land. Plaint schedule takes in two items – one is 15 cents in survey No.453/2. Two cents out of the 15 cents was taken by the Government for formation of channel. This is not disputed by the plaintiffs also. The remaining 13 cents is lying as a water chal. Item No.2 is 2.22 cents which is on the western portion of item No.1 according to the plaintiffs, trespassed upon by the defendants. Ext.A2 is the partition deed relied on by the plaintiffs. There, item No.1 (3) is the plaint A schedule allotted to plaintiff No.1. The property of the defendants is on the west of the plaint A schedule and comprised in survey No.454/3 while the 13 cents belonging to the plaintiffs as per Exts.A1 and A2 is comprised in survey N9.453/2. Advocate commissioner measured the properties with the assistance of Taluk Surveyor. Ext.C4 is the plan which is not seriously challenged by either side. In Ext.C4, water chal portion (described in plaint A schedule) is shown in yellow shade and comprised in survey No.453/2. On the west is the property admittedly belonging RSA No.963/2009 3 to the defendants and comprised in survey No.453/3. In between is the narrow strip of land (plaint B schedule) marked by the advocate commissioner in Ext.C4 in red shade, 2.22 cents in extent and comprised in survey No.453/3. Learned Munsiff found that though the entitlement of the plaintiffs as per Exts.A1 and A2 excluding two cents which is admittedly taken for formation of channel is only 13 cents, measurement by the advocate commissioner with the assistance of the Taluk Surveyor revealed that even excluding the 2.22 cents (plaint B schedule), plaintiffs have a larger extent with them. Commissioner found that the extent of the plaint A schedule is 14.83 cents. The total extent as per village records is 15.07 cents but on measurement, the total extent was found to be 17.05 cents. That means even excluding the two cents given for formation of the channel as against the plaint allegation of 13 cents, plaintiffs have got in their possession 14.83 cents. The commissioner also noted that the disputed portion (B schedule) is parambu lying within the boundaries mentioned in Ext.B1 while the description of the property as per Exts.A1 and A2 is 'water chal'. In Ext.B1, partition deed dated 11.5.1973 the eastern boundary stated is the water chal (ie., the property belonging to the plaintiff No.1 as per Exts.A1 and A2). Courts below found from Exts.A1, A2 and B1 that though the disputed property is comprised in survey No.453/2 in which defendants do not own any land as per Ext.B1, in all other respects the description in Ext.B1 tallied with the description of plaint B schedule regarding nature, extent and boundaries. Courts below RSA No.963/2009 4 were not inclined to accept the claim of the plaintiffs that they have title over disputed property merely based on survey number alone which is under challenge in this Second Appeal. Learned counsel contends that in the clear description of the survey number that should have prevailed over description by boundaries, nature and extent. 5. There is no invariable rule that in case of conflict between extent, survey number or boundaries, the one should prevail over the other. In Parameswaran Pillai v. Gowrikutty Amma (1984 KLT S.N. 111) this Court held that in construing a grant of land a description by fixed boundaries is to be preferred to a conflicting description by area. But a Division Bench of this Court in Savithri Ammal Vilasini Ammal v. Jayaram Pillai Padmavathi Amma (1989 (2) KLJ 708) held, “In cases where there is difference in the extent and the boundary covered by a document, one or the other which is clearer and more specific has to be preferred. In some cases it may be the boundary. In some other cases it may be the extent and in yet other cases it may be the side measurements. There is no invariable rule in this regard. The rule is one of construction. It is not unalterable, inflexible or invariable”. In this case, except the description by survey number, all other description of the RSA No.963/2009 5 disputed property tallied with the descriptions in Ext.B1, partition deed of the defendants. The disputed property is paramba while property belonging to the plaintiffs as per Exts.A1 and A2 is water chal. It is in the above circumstances, the courts below were not inclined to find title for the plaintiffs over plaint B schedule merely based on the survey number. I do not find anything illegal or irregular in the approach of the courts below nor is any substantial question of law involved in the matter requiring admission of the Second Appeal and notice to other respondents. The Second Appeal is dismissed in limine. I.A.No.2134 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks