IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 AS.No. 348 of 2000(E) --------------------- AGAINST THE JUDGMENT AND DECREE DATED 30.11.1999 IN OS.66/1994 of SUB COURT, VADAKARA .................... APPELLANTS/PLAINTIFFS: ---------------------------- 1. V.K.KOUSU, CHEERAMVEETTIL HOUSE, VADAKARA AMSOM, DESOM, VADAKARA TALUK. 2. M.T.NARAYANI, MEETHALE THAYYIL HOUSE, PUTHUPPANAM AMSOM, DESOM, VADAKARA TALUK. BY ADV. MR.M.P.JAYARAJ MR.R.PARTHASARATHY RESPONDENTS/DEFENDANTS: -------------------------------- 1. PULINHOLI KUNNATH DEVI, MEENKUZHIYIL, VADAKARA AMSOM, DESOM, VADAKARA TALUK. 2. CHANDRASEKHARAN -DO- 3. BALAKRISHNAN -DO- 4. BABURAJAN -DO- 5. JAYABHARATHI -DO- 6. PADMAJA -DO- 7. PREMANAND -DO- 8. C.SARADA DEVI, VALIYAPARAMBATH, 'ANAND MANDIR', NADAKKUTHAZHA AMSOM, DESOM, VADAKARA TALUK. 9. D.M.HEMAPRABHA, NADAKKUHAZHA AMSOM, DESOM, VADAKARA TALUK. 10. M.K.RATNA SOBHA -DO- 11. A.M.SREELATHA -DO- 12. A.M.ANANDRAJ -DO- 13. A.M.JAYASREE -DO- 14. A.M.BABY SREEJA -DO- ADV. MR.P.R.VENKITESH FOR R1 TO R7 MR.R.K.MURALEEDHARAN FOR R8-14 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/03/2010, HE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------------- A.S.No.348 of 2000 --------------------------------- Dated this the 4th day of March, 2010 J U D G M E N T The plaintiffs in O.S.No.66 of 1994 on the file of the Sub Court, Vadakara are the appellant. Suit is filed for fixation of boundary and for permanent prohibitory injunction. The trial court dismissed the suit holding that the plaint schedule property was not properly identified. Aggrieved by the decree and judgment dated 30.11.1999, the plaintiffs have preferred the appeal. Parties are hereinafter referred to as the plaintiffs and defendants as arrayed in the suit. 2. The plaint schedule property originally belong to deceased Azhithalakkal Kannan. The said Kannan is the predecessor-in-interest of plaintiffs and defendants. The plaint schedule property was leased by the said Kannan in favour of the predecessor-in-interest of plaintiffs and defendants 8 to 14 as per registered lease deed dated 6.9.1932 of S.R.O, Vadakara, marked as Ext.A2. It is the case of the plaintiffs that the plaintiffs and defendants 8 to 14 are in exclusive possession and A.S.No.348 of 2000 - E 2 enjoyment of the plaint schedule property. Admittedly, the southern property belonged to defendants 1 to 7. It is averred in the plaint that deceased Kannan bequeathed the said property in favour of his son namely, deceased Kunnumayi Kunhiraman as per registered will dated 6.9.1932. After the death of Kunjiraman the defendants 1 to 7 being the legal representative of the deceased are enjoying the said property. The suit was filed on the allegation that the defendants are attempting to cause obstruction to the enjoyment of the plaint schedule property. 3. The plaint schedule property as well as the property belonging to defendants 1 to 7 are lying contiguously. The properties are situated in between the Arabian Sea on the west and Kotta river on the east. The plaintiffs allege that there are no definite boundary exists in between the properties of plaintiffs and defendants. The defendants denied the material averments in the plaint. The defendants admitted that they are enjoying the property lying on the southern side of the plaint schedule property. The contesting defendants disputed the identity of the plaint schedule property and further contended that the obstruction alleged in the plaint is false. According to them the A.S.No.348 of 2000 - E 3 measurement of the plaint schedule property shown in the plaint is incorrect. It is further contended that the defendants 1 to 7 filed O.S.No.6 of 1976 against the legal heirs of the original landlord for recovery of possession. The decree passed in the said suit was confirmed in appeal. It is further alleged that the plan submitted by the commissioner in O.S.No.6 of 1976 was accepted by the court and plot C1 in the plan submitted has been delivered to the defendants in execution. Defendants prayed for dismissal of the suit. 4. The evidence consists of Exts.A1 and A2 on the side of the plaintiffs, Exts.B1 to B8 on the side of the defendants and Exts.C1 and C2 had also marked. 5. The plaintiffs are claiming title by virtue of Ext.A2 lease deed dated 6.9.1932. The description of the plaint shows that plaint schedule property is comprised in R.S.No.183/2 with the measurements, east-west 64 six feet koles and north-south 82 six feet koles. The very same measurement is mentioned in Ext.A2 Kuzhikanam lease deed executed by Kannan in favour of Achuthan and Kelappan who are the predecessor-in-interest of the plaintiffs. A.S.No.348 of 2000 - E 4 6. The contesting defendants disputed the identity of the property. In the said circumstances, at the instance of the plaintiffs the court below deputed a commissioner. The commissioner submitted Exts.C1 report and C2 plan. Both sides attended the trial of the case accepting Ext.C2 plan as the correct plan. The court below observed that both sides accepted Ext.C2 as the correct plan. In Ext.C2 plan plot ABCD is shown as the plaint schedule property and plot BCEF is shown as property of the defendants 1 to 7. The commissioner located the dividing line between the properties of the plaintiffs and defendants and marked as BC. The commissioner also reported that though the survey number of the property is R.S.No.183/2, due to the changed flow of the river the property claimed by the plaintiffs and defendants are in R.S.No.185/2. 7. Learned counsel for the plaintiffs submitted that the commissioner reported that the properties belonging to the plaintiffs and defendants lies in R.S.No.183/2 as well as R.S.No.185/2. 8. In paragraph 11 of the judgment the court below discussed the measurements shown in Ext.C2 plan and compared A.S.No.348 of 2000 - E 5 the said measurement with Ext.B1 plan prepared in another suit, O.S.No.38 of 1968 which was accepted in O.S.No.6 of 1976. It is seen that Ext.B1 plan was prepared in the said suit about 28 years before filing of the present suit. After making comparison with Ext.B1 plan the court found that drawing of a line 82 six feet from point A in Ext.C2 plan by the commissioner can never be correct because northern boundary of the plaint schedule property in that event will not be Peedikayilakath paramba and further observed that the present measurement shown in Ext.C2 plan drawn by the commissioner and Ext.A2 document on which the plaintiffs relies, a satisfactory decision cannot be arrived at. The court below further held that BC line in Ext.C2 plan is not the dividing boundary line between the properties of the plaintiffs and defendants. 9. In the light of the contention disputing the identification of the suit property, the court deputed a commissioner. The commissioner submitted Ext.C1 report and Ext.C2 plan. The learned judge observed that both parties accepted Ext.C2 plan as the correct plan. In the circumstances, there is no justification for the court below to compare Ext.C2 A.S.No.348 of 2000 - E 6 plan with the plan prepared about 28 years before the filing of the present suit. The present commissioner reported that there is change of material circumstances due to the changed flow of the river. Plaintiffs and their predecessors are not parties to the earlier suit in which the plan was prepared. The court below should not have relied on Ext.B1 plan which has nothing to do with the lie, location and identification of the plaint schedule property. The court, for identification as on the date of suit, deputed a commissioner. The commissioner prepared a report and plan. The plan was accepted by both sides. In such circumstances, the discussions made in paragraph 11 of the judgment is in fact unnecessary and the decision taken on the basis of the said discussion is only unsatisfactory and unsustainable in law. In the circumstances the court below shall dispose of the case afresh after taking note of the observations made above by this Court. In the result, the judgment and decree passed by the court below is set aside. The case is remitted for fresh consideration in accordance with law. Since the suit is of the year 1974, the court shall dispose of the matter as expeditiously as possible. At any A.S.No.348 of 2000 - E 7 rate, the suit shall be disposed of within a period of six months from the date of receipt of a copy of this judgment. Parties are directed to appear before the court below on 25.3.2010. No order as to costs. HARUN-UL-RASHID, JUDGE. bkn/-