IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 RSA.No. 826 of 2008() --------------------- AS.10/2006 of SUB COURT, NEDUMANGAD OS.349/1980 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT/APPELLANT/1ST DEFENDANT: -------------------------------------------------- GOMATHY, D/O. PACHI, MELEVEEDU, PARAYILKONAM, KAZHUNADU MURI, KALLAYAM, VATTAPPARA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENTS: RESPONDENTS/PLAINTIFFS 1 TO 7 DEFENDANTS 2 TO 10 ------------------------------------------------------------- 1. J.CHELLAPPAN NADAR,MELEPUTHEN VEEDU, PARAYILKONAM, KAZHUNADU MURI, VATTAPPARA VILLAGE, THIRUVANANTHAPURAM.(DIED) 2. VIJYAMMA, D/O. CHELLAPPAN NADAR, -DO- -DO- 3. ROBINSON, S/O. CHELLAPPAN NADAR, DO- -DO- 4. GARSHON, S/O. CHELLAPPAN NADAR, -DO- -DO- 5. GLORI BAI, D/O. CHELLAPPAN NADAR, -DO- -DO- 6. ALBERT @ ROBERT, S/O. CHELLAPPAN NADAR DO- -DO- 7. RETNA BAI, D/O. CHELLAPPAN NADAR, -DO- -DO- 8. THOMAS NESAMONY, CHUKATTUMUKAL PUTHEN VEEDU,MUKKAMPALAMOODU, VATTAPPARA VILLAGE, THIRUVANANTHAPURAM. 9. JOSHWA JOHNSON, MELEVEEDU, PARAYILKONAM, KAZHUNADU MURI, VATTAPPARA VILLAGE, THIERUVANANTHAPURAM 10. EBANEESAR CHELLAPPAN, VATTAVILA, KAZHUNADU, VATTAPPARA VILLAGE, THIRUVANANTHAPURAM. 11. THANKAMMA ESTHER -DO- -DO- 12. CHELLAPPAN, S/O. BABU @ NESAMONY, PAIVILAKATHUVEEDU, VATTAVILA, KALLAYAM P.O.,VATTAPPARA VILLAGE, THIRUVANANATHAPURAM. 13. JAMES, S/O. CHELLAPPAN, -DO- -DO- 14. STEPHENSON, S/O. CHELLAPPAN, -DO- -DO- 15. DAISY, D/O. THANKAMMA EASTHER, KUNNUVILAKATHU VEEDU, KALLAYAM P.O., VATTAPPARA VILLAGE, THIRUVANANTHAPURAM. 16. FRANKLING DAS @ ANI, S/O. CHELLAPPAN, -DO- -DO- BY R.S.KALKURA FOR CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. -------------------------------- R.S.A.NO.826 OF 2008 ---------------------------------- Dated this the 17th day of September, 2008. JUDGMENT The first defendant in O.S.No.349/1980 on the file of the Principal Munsiff's Court, Nedumangad is the appellant in this second appeal. The said suit instituted by the predecessor of respondents 2 to 16 herein namely Chellappan Nadar was one for rectification of documents, declaration of title and recovery of property after redemption of the mortgage. On an earlier occasion, there was a remand by this Court in S.A.No.331/1990. After the said remand, the suit has been concurrently decreed by the court below. In the course of the judgment, the lower appellate court has discussed as follows: In Ext.A4 it is stated that A schedule 30 cents as per sale deed No.2973/1958 stand in the name Thomson and Thressial and B schedule 30 cents as per sale deed No.2885/1963, stands in the name of 3rd defendant. Due to a mistake in the survey numbers the A schedule 30 cents is being enjoyed by the 3rd defendant and the B schedule 30 cents is being enjoyed by Thomson and Thressial. Therefore as per Ext.A4 exchange deed, the properties were exchanged and it is stated in the deed that A schedule having an extent of 30 cents in Sy.No.2471 would be enjoyed by the 3rd R.S.A.NO.826/2008 . 2 defendant herein and the B schedule having an extent of 30 cents comprised in Sy.No.2433 would be enjoyed by Thomson and Thressial. It also shows that there was some mistake crept in the survey number in some documents. Though the commissioner has filed Ext.C1 (a) and C1(b) plan. No one had filed any objection to the commission report and the commissioner was not examined to disprove his report. So it can be safely inferred that the commissioner has properly identified the plaint schedule property with the assistance of the Village Officer and it has come out in evidence that the plaint schedule property is in survey No.2471. The commissioner could not find any other property as mentioned in D schedule in Ext.A1 other than plaint schedule property. So, the allegation of plaintiff/respondents that the property allotted to the respondent/plaintiffs as D schedule in Ext.A1 is actually comprised in Sy.No.2471 and not in Sy.No.2433 is true and correct. It is trite law that in cases of conflict between the area, survey number and boundaries mentioned in the document, the boundaries predominates and the rest is considered only as false or erroneous description. The plaintiff has obtained the plaint schedule property as per D schedule in Ext.A1 settlement deed. The 1st plaintiff has mortgaged the said property on 16.4.1996 in favour of Appukuttan Nadar as per Ext.A2 mortgaged deed. The said Appukuttan Nadar as per Ext.A3 dated 16.4.1966 assigned to the said mortgage to the 1st defendant herein. As per Ext.A3 the 1st defendant is in enjoyment and possession of the property as mortgagee. This was disputed by the defendants 1 and 3. Before the execution of Ext.A1 settlement deed. 92 cents of the northern side in Sy.No.2471 was given to his daughter Thressial. Out of the remaining 70 cents of land 30.25 cents was R.S.A.NO.826/2008 . 3 allotted to Konchukunju as B schedule. 41 cents to the immediate west of the property to Konchukunju was allotted to the 1st plaintiff as D schedule. The immediate west of D schedule, 42 cents was allotted to Simson as E schedule in Ext.A1. It has found that the plaint schedule property having 41 cents of land in Sy.No.2471. Therefore, actually before the execution of Ext.A1 settlement deed, 92 cents in Sy.No.2471 was given to Thressial. Out of the remaining 70 cents 32.25 cents was allotted to Konchukunju and 41 cents was allotted to the 1st plaintiff as D schedule. So there is no land in Sy.No.2471 to allot 32.25 cents of land to Simpson. S as per Ext.A1 settlement deed Simson has no right to any property in Sy.No.2471. He could not sell 42 cents to Chettiyar as per Ext.B4 sale deed dated 14.7.1962. So Chettiyar has also no right to sell the said property as per Ext.B1 dated 30.5.63 to the 3rd defendant. As the Vendee has no title over the property, the defendants 1 and 3 also have not derived any title as per Ext.B1 sale deed. The plaintiffs have proved Ext.A2 mortgage in favour of Appukuttan Nadar by examining PW3, the attesting witness in the said document. The attesting witness in Ext.A3 has not been examined to prove the same. The execution of Ext.A3 is not denied by the defendants. Their contention is that they are in possession of the plaint schedule property on the basis of Ext.B1 sale deeds. Ext.A3 is a registered document. When a mortgage deed is registered it is not necessary to call an attesting witness to prove the execution, unless the execution has been specifically denied by the person whom it purports that the plaint schedule property which he obtained as per Ext.A1 document has been mortgaged to Appukuttan Nadar as per Ext.A2 mortgage deed and he in turn assigned the same to the 1st defendant as per Ext.A3. The plaintiffs have proved that they have got title over the plaint schedule property and the 1st defendant is in possession of the plaint schedule property as a R.S.A.NO.826/2008 . 4 mortgagee. So, the respondent/plaintiffs a re entitled to get a decree for rectification of survey number of D schedule in Ext.A1 document. They are also entitled to get a decree for declaring their title over the plaint schedule property and they are entitled to redeem the mortgage of the plaint schedule property from the 1st defendant on deposit of mortgage money. So, the judgment and decree passed by the Lower Court is proper and correct. I do not find any reason to interfere with the judgment and decree of the Lower Court." 2. Even though the learned counsel appearing for the appellant assailed the findings recorded by the court below on various grounds, I am not satisfied that this appeal raises any of the following questions of law formulated in the Memorandum of Appeal. "1. Whether the finding of the lower appellate court on the charge of Re-survey number, as claimed by the plaintiff, is correct especially when there is no positive and cogent evidence to prove the same? 2. Whether finding of the courts below regarding the Simson's property is correct especially when he has been allotted with 42 cents of property as evidenced by the documents, including Ext.B4? 3. Whether the finding of the courts below on the basis of Exts.C1,C1(a) & X1 are correct especially when the Advocate Commissioner has reported that the survey number 2433 is situated in another place and boundaries of the property also described and also R.S.A.NO.826/2008 . 5 stated that the total area of 2433 is 2 acre 6 cents only and the Advocate Commissioner did not divide the property as per Ext.A1 Settlement Deed? 4. Can the prayer for rectification of survey number of the plaint schedule property be allowed without carrying out the same mistake in the prior documents of the said property? 5. Whether the courts below have complied with the directions in the remand judgment of this court in its correct spirit? 6. Whether the courts below committed error in discarding the appellant's claim of adverse possession over the plaint schedule property especially when she was holding the property for more than 25 years on the basis of title deeds and the plaintiff was having the absolute knowledge regarding the hostile possession over the said property by the appellant? 7. Whether a suit of this nature can be decreed solely on the basis of Advocate Commissioner's report? 8. Whether the finding of the lower appellate court that the boundaries of a property predominates the extent and survey number of the property, is correct in the eye of law and when there is dispute regarding the boundary and extent of a property, which will prevail? 9. Whether a decree can be granted for a relief not asked for in the plaint and no court fee also has been remitted for the same? 10. Whether the finding of the courts below regarding the alleged mortgage is correct, especially when there is no pleading and evidence to support the claim? 11. Is the suit is properly framed especially in R.S.A.NO.826/2008 . 6 the light of the relief sought for therein?" 3. On the findings recorded by the courts below, the aforesaid questions formulated in the Memorandum of Appeal do not arise for consideration. The suit was rightly decreed by the courts below. In the absence of any substantial questions of law arising for determination in this appeal, this Court will be loath to interfere with the concurrent findings of facts recorded by the courts below. The second appeal is accordingly dismissed in limine. V. RAMKUMAR,JUDGE. cl R.S.A.NO.826/2008 . 7