IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 RSA.No. 129 of 2004(F) ---------------------- AS.175/1997 of ADDL.DISTRICT JUDGE FAST TRACK COURT (ADHOC) II,KOTTAYAM OS.309/1993 of ADDL.M.C.,KOTTAYAM .................... APPELLANT/RESPONDENT/PLAINTIFF: --------------------------------------------------- THOMAS, S/O.SCARIA, MADURAMCHERIL HOUSE, MEENADOM VILLAGE, MEENADOM KARA, KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): APPELLANT/DEFENDANT: -------------------------------------------------------------- P.S. PHILIP, S/O. SAMUEL, PANDANKALLUNKAL HOUSE, MELUKAVU VILLAGE, MEENACHIL TALUK, NOW RESIDING AT MANNUPARAMBIL HOUSE, MEENADOM VILLAGE, KOTTAYAM TALUK. ADV. SRI.KOSHY GEORGE FOR R1 SRI.GEORGE ZACHARIAH ERUTHICKEL FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/3/2011 THE COURT ON 31/03/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 129 OF 2004 =========================== Dated this the 31st day of March,2011 JUDGMENT Plaintiff in O.S.309/1993 on the file of Additional Munsiff Court, Kottayam is the appellant. Defendant is the respondent. Appellant instituted the suit seeking a decree for fixation of the boundary separating the plaint schedule property from the property of the respondent based on their title deeds and for recovery of possession of any portion of the plaint schedule property found in the possession of the respondent, on the strength of title. Respondent had earlier instituted O.S.6/1990 seeking a decree for permanent prohibitory injunction in respect of the property obtained by him under Ext.B1 sale deed contending that appellant and his brothers attempted to trespass into the said property. R.S.A.129/2004 2 Both the suits were tried jointly. Learned Munsiff as per common judgment dated 3.4.1996 granted a decree in O.S.309/1993 and dismissed O.S.6/1990. Learned Munsiff found that the northern boundary of the plaint schedule property, separating the property of the respondent which lies to its north, is G H line and plot A D G H which forms part of the plaint schedule property as demarcated in Ext.C1(a) plan is in the possession of the appellant and appellant is entitled to recover possession of the same. Learned Munsiff fixed G H line as separating boundary of the property of the respondent and the plaint schedule property and permitted appellant to recover possession of plot A H G D as marked in Ext.C1(a) plan. Respondent challenged the judgment dismissing O.S.6/90 in A.S.174/1997 and the decree granted in favour of the appellant in O.S.309/1993 in A.S.175/1997. Learned Additional District Judge on reappreciation of the evidence allowed A.S.175/1997 and set aside the decree granted by the trial court finding that R.S.A.129/2004 3 though appellant sought to fix the boundary of the plaint schedule property which is 30 cents, he did not identify the 30 cents and therefore learned Munsiff should not have fixed the boundary. A.S.174/1997 was dismissed. Appellant challenged the judgment in A.S.175/1997 in the second appeal. Respondent did not challenge the dismissal of A.S.174/1997. The second appeal was admitted formulating the following substantial question of law. Is not the lower appellate court in serious error in having taken the view that Ext.C1 commissioner report and Ext.C1(a) plan are unacceptable in the light of the total absence of a pleading to that effect or an objection to that effect at the instance of the respondent? R.S.A.129/2004 4 2. Learned counsel appearing for the appellant and respondent were heard. 3. The plaint schedule property admittedly lies to the south of the property of the respondent which is the subject matter of O.S.6/1990. Both the properties originally belonged to Scaria, the father of the appellant. Under Ext.A1 partition deed, Scaria divided his properties into three plots and set part the A schedule property therein to Mani, C schedule property which lies immediately to its south to the appellant and the property which lies to its south to Mathew the other son who was the second defendant in O.S.6/1990. Mani, to whom the northern A schedule property was allotted, assigned the property in favour of the respondent under Ext.B1. Respondent is claiming right and title to the property which lies to the north of the property allotted to the appellant under Ext.A1. Ext.B1 assignment deed was executed by Mani in favour of the respondent on 31.1.1983. The dispute in the suit in essence is R.S.A.129/2004 5 with regard to the southern boundary of the property belonging to the respondent, which is the northern boundary of the plaint schedule property which belongs to the appellant. 4. A Commissioner was appointed by the learned Munsiff to identify and demarcate properties. He submitted Ext.C1 report and C1(a) plan. Commissioner identified the A schedule property shown in Ext.A1, as plot B C G H and the property now in the possession of the respondent as plot B C G D A H. 5. As per Ext.A1 partition deed the northern most 30 cents was allotted to Mani the assignor of the respondent and the property which lies immediately to its south was allotted to the appellant as C schedule property. The Commissioner found that plot A D G H, which is now in the possession of the respondent, does not form part of the property belonging to the respondent under Ext.A1. It is on that basis learned Munsiff fixed the northern boundary of the plaint schedule R.S.A.129/2004 6 property, separating the property of the respondent, as G H line in accordance with Ext.C1 (a) plan. Learned District Judge set aside the decree granted by the learned Munsiff on the ground that as per the allegations in the plaint out of the C schedule property allotted to the appellant under Ext.A1 partition deed, 18 ½ cents was sold by him and the balance of 30 cents is the plaint schedule property and Commissioner did not identify the said 30 cents and did not produce the documents by which 18 ½ cents was alienated and when the suit is for fixation of the boundary without identifying the plaint schedule property belonging to the appellant, learned Munsiff should not have fixed the boundary. 6. Learned counsel appearing for the appellant argued that when respondent is claiming right only under Ext.B1, he can claim right only to the A schedule property shown in Ext.A1 and the property which lies to its south is the property of the appellant allotted as C schedule of Ext.A1 and R.S.A.129/2004 7 as the boundary to be fixed is the northern boundary of that property and Ext.C1(a) plan establish that it is the G H line, the first appellate court should not have interfered with the decree. 7. Learned counsel appearing for the respondent vehemently argued that the property identified by the Commissioner as plot A D G C B H is actually the property obtained by the respondent under Ext.B1 sale deed executed by Mani and even if respondent is in possession of any excess land, unless appellant establishes that he is not in possession of 30 cents of the property, excluding the property which was alienated, appellant cannot recover any portion of the property in the possession of the respondent and therefore a decree as sought for cannot be granted. Learned counsel also argued that the property identified by the Commissioner includes puramboke land also and without excluding the puramboke land, the property obtained under Ext.A1 cannot be fixed and therefore R.S.A.129/2004 8 based on the identification made by the Commissioner in Ext.C1(a) plan, the boundary cannot be fixed. Learned counsel also argued that when plot A D G H contain rubber trees planted by the respondent subsequent to Ext.B1 assignment deed, without proper identification of the property belonging to the respondent, a decree for recovery of possession of the property in the possession of the appellant cannot be granted. Learned counsel finally argued that the resurvey was finalised and no suit was filed within one year from the date of finalisation of the resurvey as provided under Section 14 of the Kerala Survey and Boundaries Act, and hence the suit to fix the boundary is not maintainable and appellant should not be allowed to circumvent the provisions in the Kerala Survey and Boundaries Act by getting his northern boundary fixed. 8. Even if the resurvey is finalised, a suit for fixation of boundary based on the title deed is not barred. Section 14 of the Act has no R.S.A.129/2004 9 application to such a suit. Appellant and the respondent are claiming under the same common title. The respondent is claiming right and title to the northern property under Ext.B1 executed by Mani, one of the sharer under Ext.A1. The plaint schedule property claimed by the appellant has to its north and it is thirty cents of the C schedule property allotted to him under Ext.A1, less eighteen and half cents alienated by him. Thus the property which could be claimed by the appellant and the respondent, is the property respectively allotted to the appellant and Mani, the assignor of the respondent, under Ext.A1. There is no dispute that the property allotted to the assignor of the respondent is the A schedule property under Ext.A1. It is also not in dispute that there was a fixed permanent boundary on the east, north and west of the property purchased by the respondent under Ext.B1 from Mani, to whom that property was allotted under Ext.A1. In spite of the fact that the suit was filed for fixation of the boundary R.S.A.129/2004 10 based on the title with a plea for recovery of possession of the portion of the plaint schedule property if any found in the possession of the respondent, respondent has no case in the written statement that the property obtained by him under Ext.B1 includes any puramboke land in addition to the property allotted to assignor under Ext.A1. There is no case in the written statement that the property now in his possession, includes any puramboke land. Ext.A1 shows that there is no puramboke land either on the east north or west of the property, which was divided into three plots and set apart to the three sons, Mani, appellant and Mathew. Therefore it is futile for the respondent to contend that the identification of the property by the Commissioner is not correct as there is no dispute on the eastern, northern or western boundary walls. Though an objection was filed by the respondent contending that the Commissioner has not identified the property with reference to the resurvey plan and there was a R.S.A.129/2004 11 thondu, used as a way by the public, which lies to the east of the property obtained by the respondent and adjacent to that way there was puramboke land and the Commissioner was requested to exclude that puramboke land and it was not excluded and the property now identified is inclusive a portion of the puramboke land, Ext.A1 shows that the eastern boundary of the property set apart to the appellant, respondent and Mathew is the property belonging to Gopalan and the name of the property is Perukizhakkethil Purayidam. It does not show that there was any public way or puramboke land on the east of the said property. In such circumstances, contention of the respondent that the property identified by the Commissioner is inclusive of puramboke land cannot be accepted especially when such a contention was not raised in the written statement. 9. The respondent in O.S.6/1990 sought a decree for injunction, in respect of the northern 30 cents which lies to the north of the property of R.S.A.129/2004 12 the appellant, contending that the said 30 cents was obtained by the respondent under Ext.B1, being the property allotted to his assignor under Ext.A1 partition deed. There is no case in the plaint in O.S.6/1990 or the written statement in this suit that the property allotted to Mani or obtained by the respondent under Ext.B1 is inclusive of puramboke land or the property obtained under Ext.B1 is not only the property allotted to his assignor under Ext.A1, but puramboke land also. Moreover, it is the case of the respondent himself that the property obtained by him under Ext.B1 is the property, enclosed within the compound wall on the east, north and west. Respondent in such circumstances is not entitled to contend that the property obtained under Ext.B1 includes puramboke land also. what was assigned to him under Ext.B1 is only the property obtained by Mani, his assignor under Ext.A1. The property which was allotted to his assignor Mani is the A schedule property in Ext.A1. It does not include any puramboke land. R.S.A.129/2004 13 10. Learned Additional District Judge set aside the decree granted by the learned Munsiff on the ground that the plaint schedule property was not identified. That finding is based on the fact that as per the allegations in the plaint, out of 48 ½ cents allotted to the appellant, he assigned 18 ½ cents earlier and he claims right and title to only the remaining thirty cents and appellant did not produce the documents by which 18 ½ cents was alienated and the balance thirty cents was not identified. Plot F E D G H A is the southern plot of plot B C G H and the extent of the property is 47.716 cents. The thirty cents, shown as the plaint schedule as such was not identified. It is in such circumstances, it was found that plaint schedule property was not identified. At first blush the reasoning is attractive. But it is to be born in mind that the suit is not to fix the boundaries of the plaint schedule property, but only the boundary which separates the plaint schedule property from the northern property R.S.A.129/2004 14 belonging to the respondent. True, the allegation in the plaint is that out of 48 ½ cents obtained by the appellant under Ext.A1, the southern most 18 ½ cents was alienated and he claims title only to the balance thirty cents. The description of the plaint schedule property is also that it is the remaining 30 cents excluding the southern 18 ½ cents alienated. Therefore the property claimed by the appellant after alienating a portion on the southern side is the property, which lies immediately to the south of the property of the respondent. It is also to be born in mind that the northern boundary of the plaint schedule property shown in the plaint is the property of the respondent. The southern boundary of the plaint schedule property in O.S.6/1990 is also shown as the property of the appellant. Therefore it is absolutely clear that the property which is available with the appellant, after alienting 18 ½ cents lies is immediately to the south of the property of the respondent. This aspect is not R.S.A.129/2004 15 disputed at all. If that be so, the question is when the boundary separating the property of the respondent and the appellant is to be fixed, is it necessary to identify the entire plaint schedule property as such. 11. The argument of the learned counsel appearing for the respondent is that even if respondent is found to be in possession of any excess land, unless the entire property belonging to the appellant is identified and it is found that he is not in possession of thirty cents, the boundary cannot be fixed as demarcated by the Commissioner for the failure to fix the thirty cents shown as the plaint schedule property. The argument is that for the sole reason that respondent is in possession of excess land, appellant is not entitled to get the boundary fixed in such a way as to claim a portion of the property in the possession of the respondent. The argument could have been appreciated if respondent has a case that he was in possession of more extent R.S.A.129/2004 16 than what was allotted to his assignor or that the extent of the property allotted to his assignor is more than the extent shown in the document. He has no such case. When the only case of the respondent is that he obtained the property under Ext.B1, from his assignor who obtained the property under Ext.A1, respondent cannot claim any excess land than what is covered under Ext.A1 and allotted to his assignor. If that be the case, when the property which lies immediately to the south of the property of the respondent is the property of the appellant allotted as C schedule of Ext.A1 property, and the boundary to be fixed is the boundary separating the said A and C schedule properties allotted under Ext.A1 partition deed, it is not necessary to identify the remaining three boundaries of the plaint schedule property, namely the eastern, southern and western boundaries. Moreover, the prayer itself to fix the boundary separating the property of the respondent and the appellant and not to fix all the boundaries. The R.S.A.129/2004 17 owners of the property on the south, east and west are not parties to the suit also. Therefore in the nature of the contentions raised in the suit, it is not necessary to identify the 48 ½ cents allotted to the appellant or to exclude 18 ½ cents alienated by him or to fix the balance of 30 cents and thereafter fix northern boundary of the property. Ext.A1 shows that the whole plot was divided into three plots. The division was in such a way that firstly the northern thirty cents was separated as A schedule and allotted to Mani. The balance of 97 cents was divided into two equal plots and the southern 48 ½ cents was allotted to Mathew as B schedule. Its northern plot which lies in between A and B schedule property was allotted as C schedule to the appellant. Thus the southern boundary of the property of the respondent is the northern boundary of the plaint schedule property of the appellant. To fix the said boundary it is not necessary to fix the southern boundary of the plaint schedule property. The position would have R.S.A.129/2004 18 been different if the respondent had raised a contention that the property alienated by the appellant is not on the southern portion of the property obtained by the appellant under Ext.A1 and it is the property which lies immediately to the south of his property. Inspite of the specific case in the plaint that the 18 ½ cents alienated is the southern portion of the property allotted to the share of the appellant under Ext.A1 it was not denied in the written statement. Moreover even in the plaint O.S.6/1990, the case is that the property which lies to the south is the property of the appellant. In such circumstances when the only dispute is with regard to the northern boundary of the property allotted to the appellant under Ext.A1, which is southern boundary of the property allotted to the assignor of the respondent, if the identification of the property by the Commissioner is correct, the boundaries are to be fixed as provided in Ext.C1(a) plan. 12. Ext.C1 report shows that the Commissioner R.S.A.129/2004 19 found compound walls on the eastern, northern and western boundary of the plot B C G H, as demarcated by the Commissioner. In the objection filed to the Commissioner's report and plan respondent has no case that there is no compound wall on B H line on the east, or B C line on the north or G C line on the west. If that be so , the identification of plot B C G H as the property allotted to the assignor of Ext.A1 is perfectly correct. Ext.C1(a) plan with Ext.C1 report establish that the total extent of plot B C G H is 30.116. Under Ext.A1 and B1 also the extent is only thirty cents. The property which lies immediately to the south should necessarily be the property of the appellant allotted as C schedule to Ext.A1. If that be so plot, A D G H which is found in the possession of the appellant, where he claims that he planted the rubber trees, must forms part of the property of the appellant. Hence definitely appellant has title to that property. When it is found that G H is the boundary separating the R.S.A.129/2004 20 northern property belonging to the respondent and the southern property belonging to the appellant, plot A D G H forms part of the property of the appellant. Appellant has thus title to that property. Unless respondent establishes better title or establishes that he has perfected title to the said plot by adverse possession, appellant is definitely entitled to recover possession of the property on the strength of title.There is no plea in the written statement that title of the appellant was barred by adverse possession. There was no plea or evidence that appellant or his predecessors have been in possession of any portion of the property belonging to the appellant, much less plot A D G H in derogation of the rights of the appellant or adverse to the appellant. In such circumstances, appellant is definitely entitled to recover possession of the said plot. The finding of the first appellate court that appellant is not entitled to the recovery of possession of that plot and the boundary fixed by the learned Munsiff is R.S.A.129/2004 21 not correct and unsustainable. Therefore the judgment can only to be set aside. Appeal is allowed. Judgment of Additional District Court in A.S.175/1997 is set aside. O.S.No.309/1993 on the file of Munsiff Court, Kottayam is decreed as follows:- G H line is fixed as the northern boundary of plaint schedule property separating the property of respondent which lies to its north. Appellant is entitled to recover possession of plot A D G H from the respondent, on the strength of his title. Respondent is directed to surrender possession of A D G H to the appellant within one month, failing which appellant is entitled to get the decree executed. No costs. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A.NO.480 /2000 --------------------- JUDGMENT 23rd March,2011