IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 SA.No. 942 of 1998(D) ------------------------------- AS.174/1993 of ADL.SUB COURT, THALASSERY OS.43/1981 of MUNSIF COURT, KUTHUPARAMBA .................... APPELLANT(S): ---------------------- KOLLANKANDI KORAN, S/O. KUNHIKUTTY,39 YEARS, AGRICULTURIST, PAZHASSI AMSOM, MATTANNUR DESOM,KANNUR DISTRICT. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): -------------------------- 1. PERUVANIYAN KARTHIYAYINI AMMA, W/O. GOVINDAN NAMBIAR, 30 YEARS, NO OCCUPATION, PAZHASSI AMSOM, MATTANNUR DESOM, THALASSERRY TALUK. 2. PERUVANIYAN DAMODARAN NAMBIAR, S/O. CHANDUKUTTY NAMBIAR, AGED 27 YEARS, AGRICULTURIST, PAZHASSI AMSOM, KUZHIKKAL DESOM, TELLICHERRY TALUK. 3. KURICHERY KUNHIKANNAN NAMBIAR, S/O. PAITHAL NAMBIAR, S/O.PAITHAL NAMBIAR, AGED 39YEARS,MAISON PAZHASSI AMSOM, MATTANNUR DESOM, THALASSERRY TALUK. 4. SISTER PARVATHI AMMA, AGED ABOUT 50 YEARS, AGRICULTURIST, PAZHASSI AMSOM, MATTANNUR DESOM, THALASSERRY TALUK. 5. SISTER DECHU ALIAS LAKSHMI AMMA, AGED 45 YEARS, AGRICULTURIST, PAZHASSI AMSOM, MATTANNUR DESOM, THALASSERRY TALUK. 6. SON SREEDHARAN NAMBIAR, 22 YEARS, AGRICULTURIST, PAZHASSI AMSOM, MATTANNUR DESOM, THALASSERRY TALUK. 7. KURINCHERI GOVINDAN NAMBIAR,S/O.PAITHAL NAMBIAR, 52 YEARS, WORKING MILITARY SERVICE, PAZHASSI AMSOM, MATTANNUR DESOM, POST MATTANNUR, THALASSERRY TALUK. R1 TO R7 BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE ADV. SRI.MILLU DANDAPANI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 942 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of January, 2011. JUDGMENT The first plaintiff in O.S. 43 of 1981 is the appellant before this court. The suit was dismissed by the lower appellate court, though decreed by the trial court. 2. The first plaintiff traced his title to the suit property, which are shown as A, A1, B, C, C1 in the commission sketch Ext.C9. The total extent shown is 85 cents. The first plaintiff traced his title to Exts.A17, A1, A2 and A3. Ext.A3 is the gift deed in favour of the first plaintiff by his father. Ext.A2 is the purchase certificate obtained by his father in respect of the property. It is admitted by the plaintiffs that the extent shown in the document is only 66 cents, whereas plots A, A1, B, C and C1 together constitute 85 cents. 3. The main contesting defendant is the seventh defendant in the suit. As per Ext.A19 partition S.A. 942/1998. 2 EF shown in Ext.C9 is set apart to him. Ext.A18 is the document of title of the defendants. The extent shown there in is only 3.20 acres. But going by the commission report the concerned plot which consists of D, E and F had an extent of 3.35 acres. 4. It is admitted case that the property of the plaintiffs is comprised in Sy. No.68/2B, whereas the defendants' property is comprised in Sy. No.67/1. Neither side have a case that they had properties in other survey numbers. 5. The dispute in this case relates to the title and possession of Ext.A1 plot shown in the commission report Ext.C9. The trial court was of the view that on an evaluation of the evidence, it is clear that the property belonged to the plaintiffs, even though that enhanced the extent of property obtained by them under the various documents of title relied on by them. The trial court also referred to the boundaries shown in the respective documents and came to the S.A. 942/1998. 3 conclusion that A1 plot forms part of the property obtained by the plaintiffs. 6. The seventh defendant carried the matter in appeal as A.S. 174 of 1993. The lower appellate court found it difficult to accept the finding of the trial court and was of the view that the plaintiffs had not proved their title and possession over A1 plot and accordingly reversed the judgment and decree of the trial court and thus dismissed the suit. 7. Notice is seen issued on the following questions of law: “1. Whether in the facts and circumstances of the case, the lower appellate court was correct in law to go beyond the scope of remand? 2. Whether the lower appellate court was correct in law treating the suit merely as an injunction suit, when court fee had been paid under Section 30 and prayer was made for recovery? S.A. 942/1998. 4 3. Whether the documents have been correctly interpreted by the lower appellate curt, with respect to the boundary?” 8. Learned counsel appearing for the appellant pointed out that the lower appellate court was carried away by certain observations made by this court while remanding the matter on an earlier occasion and had not adverted to the relevant evidence in the case. Even though both parties were given an opportunity to adduce further evidence, the seventh defendant, who is really the contesting defendant, did not adduce further evidence. But on the other hand the plaintiffs had examined P.Ws. 3 and 4 and marked other documents also. Learned counsel drew the attention of this court to the boundaries of the property shown in the various documents and pointed out that by no stretch of imagination it could be said that plot A1 shown in Ext.C9 sketch mentioned in Ext.C8 report could form part of the property obtained by the defendants under Ext.A18 and S.A. 942/1998. 5 partitioned by them under Ext.A19. It is accordingly contended that the finding of the lower appellate court was perverse and unwarranted by the evidence on record. 9. Per contra, learned counsel appearing for the respondents pointed out that the finding of the lower appellate court is erroneous based on evidence and it is not a question of law. Since there is no question of law, on that sole ground, the appeal has to fail. 10. One must remember that the suit is one for recovery of possession of A1 plot shown in Ext.C9 sketch. It is not in dispute that the property owned by the plaintiffs is comprised in Sy. No. 68/2B and the property owned by the defendants including the seventh defendant is comprised in Sy. No.67/1. There is no case for either side that they have property in the other survey number. It is also a proved fact that even though the plaintiffs have only 66 cents, going by the document of title, on measurement they were found to have excess area. Similar is the case of the defendants also. Even though the document of title of the defendants show S.A. 942/1998. 6 3.20 acres, 3.35 acres are in their possession. The property owned by the defendants as per the partition deed Ext.A19 is shown as D, E and F plots. 11. Now one may have to refer to the commission report, which is Ext.C8. It is noticed that in plots A, A1 and B there are no improvements. It is also mentioned in the report that there are no separating boundaries between plots A, A1 and B except a small stone revertment on the north east corner of plot A, and A1 plot is in a higher level than plot A and B. 12. It is not in dispute that the survey boundaries separating Sy. Nos.68/2B and R.S. 67/1 is shown in black colour in Ext.C9 sketch, which is on the western side of plots A, A1 and B. The evidence disclosed that there is considerable height difference between A1 plot and E plot, which is on the eastern side of A1 plot in Ext.C9 sketch. It is true that the boundary of E plot is നരത (road or way) and F plot. But the northern boundary is shown as plot D in Ext.C9. If as a matter of fact A plot took in Al plot also, then S.A. 942/1998. 7 the northern boundary should have been shown as D and A, but that is not the situation in the case. 13. The lower appellate court gave much importance to the evidence of P.W.2, who appears to have stated in his deposition that the basement in Ext.A1 plot was put up by the seventh defendant. Attention was drawn by the learned counsel for the appellant that this is only a mistake as could be seen from the first judgment of the trial court. Even assuming that P.W.2 has stated so, the eviidence that P.W.3 comes to the aid of the plaintiff. P.W.3 has stated that the basement was put up by the plaintiff and that is about 20-30 years ago. The lower appellate court then clinches on to that statement of P.W.3 and says that it is inconsistent with the statement of P.W.2 that the basement was put up 10 years ago. In drawing such a conclusion, unfortunately the lower appellate court omitted to note that P.W.3 was examined after remand, that is almost seven years after the evidence of P.W.2 was taken, S.A. 942/1998. 8 so much importance could not have been given to that statement at all. 14. Going by the boundaries shown in Ext.A18, which is the prior document of title of the defendants, eastern boundary is shown as Kunjikutty വക paramb. Kunjikutty is none other than the father of the first plaintiff. So it is clear that A1 plot is a portion of the property belonged to the father of the first plaintiff, even though the total extent is far excess than the actual extent shown in the document of title. 15. It is true that the seventh defendant was impleaded after the commissioner had filed Ext.C8 report and Ext.C9 sketch. The seventh defendant had filed objection to the commission report stating that there is no boundary separating A and A1 plots. The trial court has noticed that in the document of title of both plaintiffs and defendants, there are some errors regarding the boundary. But it is significant to notice that even after remand, the seventh defendant did not choose to go into the box and S.A. 942/1998. 9 depose his case. As rightly noticed by the trial court merely because there are errors in the boundaries mentioned, that by itself is not a ground to hold against the plaintiffs. One cannot omit to notice that the statements in the commission report that the nature of A, A1 and B plots is the same. They are rocky area. On the other hand, E plot, which belongs to the seventh defendant is quite distinct from A1 plot. It is also important to notice that a way is shown to A1 plot leading to E plot. If as a matter of fact E plot extends to the eastern side, there is no need to give access from A1 plot to E plot for the simple reason that the entire E plot would have then road frontage. 16. The observation of the lower appellate court that there is no demarcating boundary between A1 plot and E plot may not be absolutely correct. It has come out in evidence that E plot is lying much higher level than A1 plot. The observation of the lower appellate court that the boundaries need not always be important cannot be quite correct. In the case on hand it is the admitted case that S.A. 942/1998. 10 both the parties are holding more extent of land than what is contained in their document of title. In such case, the most acceptable method of identification of property is going by the boundaries. The lower appellate court was also incorrect in saying that plot A is very well separated by the clear boundaries on its southern side with that of plot A1. Except for a slight height difference, there is not much difference between the two properties as such. The lower appellate court seems to have been carried away mainly by the extent of property that the plaintiff would get if A1 plot is given to the plaintiff. The lower appellate court also observed that without including A1, the plaintiffs are in exclusive possession of more land as shown in their title deed Ext.A18. But that is not a reason to negative the right regarding A1 plot. 17. It could thus be seen that the lower appellate court has misdirected itself in appreciation of the facts and has come to the wrong conclusion, which was unwarranted and unjustified going by the evidence on record. If that be S.A. 942/1998. 11 so, interference in Second Appeal is justified. For the above reasons, this court is unable to accept the judgment and decree of the lower appellate court. The same is reversed and the judgment and decree of the trial court is restored. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.