IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 SA.No. 921 of 1994(B) --------------------- AS.140/1993 of DISTRICT COURT, THALASSERY OS.69/1991 of .Sub Court,THALASSERY .................... PLAINTIFF/RESPONDENT/APPELLANT: ----------------------------------------- KAPPIL ALICE, W/O.THOMAS, KAPPIL HOUSE, EDAKKAD AMSOM, CHALA DESOM THALASSERRY. BY ADV. SRI.K.I.MAYANKUTTY MATHER V.V.ASOKAN DEFENDANTS/APPELLANTS/RESPONDENTS: ----------------------------------------------- 1. KOTTARATHIL AZEEZ S/O.KUNHAMED HAJI, CHAVASSERRY AMSOM, ULIYIL DESOM THALASSERRY. 2. P.K.PATHUMMA, W/O.AZEEZ DO. DO. BY ADV. SRI.C.M.ABRAHAM THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14 /1 /2008 THE COURT ON 14/01/2008 DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO. 921 OF 1994 =========================== Dated this the 14th day of January, 2008 JUDGMENT Plaintiff in O.S.69/1991 on the file of Sub Court,Thalasserry is the appellant. Defendants are the respondents. Appellant instituted the suit seeking a decree for mandatory injunction to shift the pathway passing through the plaint schedule property or in the alternative to award compensation. The plaint schedule property originally belonged to first respondent. Under Ext.A1 agreement, he agreed to sell the property to the appellant. Pursuant to Ext.A1, Ext.A2 sale deed was executed on 2.11.1989, assigning the property shown therein in favour of appellant. Ext.A1 shows that first respondent had agreed to provide a way, which lies to the east of the property agreed to be sold and also undertook that if at the time of the sale it is found that the property covered under the agreement, within the S.A.921/1994 2 boundaries is less than three acres he will give additional extent necessary to make up the lose from the eastern property. Under Ext.A2 three acres within the boundaries shown therein were sold. Appellant contended that eventhough the sale deed provides for giving him a way, first respondent did not provide the way and therefore he is entitled to a damages of Rs.10,000/-. It is also contended that as first respondent agreed to convey the entire plot including the strip of land on the east of the compound wall he is entitled to the said property and appellant is bound to shift the compound wall to the east of that strip of land. Respondents resisted the suit contending that as per the agreement first respondent agreed to sell the property and under Ext.A2 it was sold also. Respondents also contended that first respondent has no property outside the eastern boulder stone boundary wall and eastern boundary of the property agreed to be sold is 50 years old boulder stone wall and second respondent is in S.A.921/1994 3 possession of the property to its east and first respondent has not agreed to shift the pathway and appellant is not entitled to the decree sought for. 2. Learned Sub Judge on the evidence of Pws.1 and 2, DW1 and Exts.A1 to A8 and Exts.C1 and C2 found that under Ext.A1 first respondent agreed to sell three acres of land and also to provide a way and as no way was provided, appellant is entitled to a damages of Rs.5000/- for not providing the way. Learned Sub Judge also found that the property assigned under Ext.A2 is inclusive of the strip of land which lies to the east of the existing eastern boulder stone wall and appellant is entitled to a decree for mandatory injunction. Respondents challenged that judgment before District Court, Thalasserry in A.S.140/1993. Learned District Judge on reappreciation of evidence confirmed the findings of learned Sub Judge that appellant is entitled to a damage of Rs.5000/- for not providing the way agreed in Ext.A1. But it was found that the property S.A.921/1994 4 assigned under Ext.A2 is the property agreed to be sold under Ext.A1 and what was agreed to be sold is the property which lies to the west of the eastern boulder stone wall and the decree for mandatory injunction is not sustainable. Learned District Judge modified the decree directing first respondent to pay Rs.5000/- as damages and set aside the other part of the decree granted by the trial court. 3. As against the said judgment, defendants filed S.A.522/1994 which was disposed by this court as per judgment dated 1.7.1994 at the admission stage. This court confirmed the findings of the learned Sub Judge that on the failure of defendants to provide the pathway as agreed under Ext.A1, appellant is entitled to Rs.5000/- as damages, as found by the trial court. 4. Challenging the rejection of the mandatory portion of the decree granted by the Sub Judge, plaintiff has preferred this appeal contending that under Ext.A1 first respondent agreed to sell three S.A.921/1994 5 acres of land and the said three acres is not the property which lies to the west of the eastern boulder stone wall alone as found by the first appellate court but inclusive of the strip of land which lies to the west and therefore findings of the first appellate court is not sustainable. 5.Second appeal was admitted formulating the following substantial questions of law. (i) Does not Ext.A1 agreement spell out an undertaking to assign an extent of three acres of land in full? (ii) Does Ext.A2 disclose sale of three acres of land with reference to the boundaries and measurements shown therein. (iii) Whether Ext.A2 and Ext.C1 together prove that there is a diminution in extent of land sold under Ext.A2 and agreed to be sold under Ext.A1 and if so, S.A.921/1994 6 whether appellant is entitled to the damages for diminution of the extent. 6. Learned counsel appearing for appellant and respondents were heard. 7. The argument of the learned counsel is that under Ext.A1 first respondent agreed to sell three acres of land and there is nothing in Ext.A1 to show that the agreement was to sell only the property which lies to the west of the eastern boulder stone wall and there is also nothing in Ext.A1 to show the existence of the boulder stone wall and therefore findings of first appellate court that agreement was only to sell the property which lies to the west of the boulder stone wall is not sustainable. Learned counsel also argued that when under Ext.A2 the property sold is the property within the four boundary measurements shown therein and the northern measurement is 498 links and first appellate court was not justified in interfering with the decree granted by the trial S.A.921/1994 7 court as the measurement of the northern boundary line, if the eastern boundary is fixed as the existing boulder stone wall, would only be 488 instead of 498 as shown in Ext.A2 and therefore the eastern boundary of three acres plot must be the eastern boundary of the strip of land which lies to the east of the existing boulder stone wall and therefore the decree granted by first appellate court is to be set aside and that of the trial court is to be affirmed. 8. Learned counsel appearing for first respondent pointed out that the property agreed to be sold is as shown in Ext.A1 and it is the same property which was sold under Ext.A2. It was argued that if the property agreed to be sold is inclusive of the property which lies to the east of the existing boulder stone wall, then there is no necessity for providing in Ext.A1 to grant additional extent from the remaining eastern property as in that event the eastern boundary of the three acre plot would necessarily be inclusive S.A.921/1994 8 of a part of the eastern property. It was argued that as per Ext.C1 plan and C2 report the difference in the measurement on the northern boundary line is only 10 links and there is a dispute with regard to the western point as the case of the appellant was that there is a puramboke land and if that portion is also included the difference is only negligible and for that reason appellant is not entitled to get the decree. Learned counsel also argued that on the pleadings and evidence, substantial questions of law though formulated are not involved in the appeal. 9. Under Ext.A1 first respondent agreed to sell 3 acres of land to the appellant. Ext.A1 provides that first respondent is to make out any shortage in extent, in case at the time of the sale it is found that the property covered by the sale deed is agreement is less than three acres. In that event, the shortage is to be filled up from the eastern property which belongs to second respondent, the wife of first respondent. Ext.A2 S.A.921/1994 9 sale deed was executed thereafter, whereunder three acres of land was assigned in favour of the appellant. Though Ext.A1 provides for providing a way to the appellant, it was not provided. It is for that reason trial court granted compensation of Rs.5000/- which was confirmed by first appellate court. In S.A.522 of 1994 this court also affirmed that finding. Appellant is not disputing the sufficiency of the compensation so awarded and the challenge is only with respect to the reversal of the mandatory injunction granted by the trial court, by the first appellate court. Though the trial court found that the strip of land which lies to the east of the eastern existing boulder stone wall, first appellate court found that the said wall, was taken as the eastern boundary of the property which was agreed to be sold under Ext.A1. True, Ext.A1 does not show that the property agreed to be sold is the property which lies to the east of the existing boulder stone. The eastern boundary shown in Ext.A1 agreement is the property S.A.921/1994 10 in the possession of the second respondent. The property sold under Ext.A2 is to the west of the property of the second respondent. Therefore it cannot be said that the property sold under Ext.A2 is not the same property which was agreed to be sold under Ext.A1. The argument of the learned counsel is that under Ext.A1 first respondent agreed to sell 3 acres of land and under Ext.A2 three acres of land as shown therein was sold and that three acres is inclusive of the strip of land on the east. Though the Commissioner identified the property as well as the strip of land and the eastern boulder stone, Commissioner has not measured and found out the actual extent available to the appellant which lies to the west of the eastern boulder stone wall. If the said property is three acres or more than three acres, appellant cannot claim that Ext.A2 is inclusive of the eastern strip of land. In the absence of evidence with regard to the actual extent of the property available within the boundaries marked by the S.A.921/1994 11 Commissioner in Ext.C1 plan taking eastern boundary as the existing boulder stone wall, case of appellant that the eastern strip of land also form part of the property under Ext.A1 cannot be accepted. The argument of the learned counsel is that the northern boundary line as shown in Ext.A2 is 498 links and as per Ext.C1 plan of the strip of land is excluded it is only 488 links and the northern boundary of the strip of land should also be taken to make it 498 links and therefore the strip of land should also form part of Ext.A2 property. The argument could have been accepted if extent of the property was identified with reference to the boundaries shown in Ext.A2 as marked in Ext.C1 plan. Ext.A2 shows the property was within the boundaries shown therein namely to the south of 498 links line, west of 554 links line, to the north of 380 links and to the east of 245 and 525 links lines. What was sought to be proved by appellant was that the said measurements shown in Ext.A2 is shown in Ext.A4 plan. If that S.A.921/1994 12 be so, the western boundary of the said property must be 480 links line and 363 links line as shown in Ext.A4 and cannot be 245 and 525 links as shown in Ext.A2. The Commissioner did not identify the property either with regard to the links line shown in Ext.A2 or Ext.A4. Even the western line is not drawn in accordance with the survey line shown in Ext.A4 plan or in accordance with the links line shown in Ext.A2 sale deed. So long as the western line is not properly fixed, argument of the learned counsel that northern links line is not correct and thus there is a shortage cannot be accepted. Learned counsel argued that in such a case an opportunity is to be granted to identify the property by remanding the suit. I find that before the trial court an objection was filed by defendants with an application to remit the report of the Commissioner for identification with the aid of a Taluk Surveyor. It was opposed by appellant contending that for the purpose of the suit, such an identification is not necessary. In the light S.A.921/1994 13 of the said contention, it is futile for the appellant now to contend that suit is to be remanded back to the trial court at this belated stage for further identification. As rightly pointed out by learned counsel for respondents the shortage of the links line on the north,as pointed out is negligible compared to the extent of the property. In such circumstance, I find no reason to interfere with the finding of the first appellate court. Appellant is not entitled to the decree for mandatory injunction sought for. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006