IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 RSA.NO. 1180 OF 2009() ----------------------------------- AS.102/1999 OF SUB COURT, OTTAPPALAM OS.500/1996 OF MUNSIFF COURT, OTTAPPALAM .................... APPELLANT – APPELLANT – DEFENDANT: --------------------------------------------------------- KARUNAKARAN, AGED 63 YEARS, S/O.KULATHINGAL NARAYANAN, KULAPPULLY AMSOM KANAYAM DESOM, OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH SMT.P.JAYALAKSHMI RESPONDENT – RESPONDENT - PLAINTIFF: ------------------------------------------------------------- GOVINDANKUTTY NAIR AGED 73 YEARS, S/O.CHEMBRA NADUVIL NANIKUTTY AMMA KULAPPULLY AMSOM, DESOM, OTTAPALAM TALUK. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 SRI.SAJU.S.A FOR R1 SRI.K.C.KIRAN FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO. 1180 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of March, 2010 J U D G M E N T --------------------- This appeal is brought from the judgment and decree of learned Sub Judge in A.S. No.102 of 1999 confirming judgment and decree for recovery of possession of plaint B schedule property. According to the respondent/plaintiff, plaint A schedule which was item No.6 of B schedule of Ext.A1 partition deed No.1052 of 1966 measuring 2.5 acres belonged to and is in his possession. While so he put up a compound wall (Padavu) towards western side of his property after leaving some property on its further west to strengthen the wall. That portion is plaint B schedule which the appellant annexed to the property belonging to him on the further west. Hence the suit for recovery of possession on the strength of title. Appellant contended that disputed property formed part of the land measuring 57x48 koles belonging to him as per a partition deed of the year 1951 and since then he is possession and enjoyment of the same as its absolute owner. He denied that respondent has title over plaint B schedule. A plea of adverse possession and limitation was also raised. Learned Munsiff was not R.S.A. No.1180 of 2009 -: 2 :- very much impressed by the case of respondent that while constructing compound wall he had left some portion of the property on the further west (plaint B schedule) but found title with the respondent and since claim of adverse possession and limitation was not established granted decree for recovery of possession of plaint B schedule That was confirmed by the first appellate court. Hence the Second Appeal. Substantial questions of law urged are whether courts below erred in ignoring the discrepancies in the report, sketch and survey plan submitted by the Advocate Commissioner and whether finding of the courts below regarding title over B schedule is legally sustainable. Learned counsel for appellant contended that there was no proper measurement of the properties and the attempt made by the Advocate Commissioner and Surveyor was not to find out whether disputed property formed part of the property belonging to the respondent but whether it formed part of property of the appellant which is not the proper way to identify the disputed property. When recovery is sought on the strength of title respondent has to win on the strength of his case and not on the weakness of the case of the appellant. It is contended that serious objections were raised against Exts.C2 and R.S.A. No.1180 of 2009 -: 3 :- C3 but those objections were not properly taken into account by the courts below. Further argument is that appellant had in fact given a work memo to the Advocate Commissioner at the spot which the Advocate Commissioner even refused to accept. Learned counsel contends that findings of the courts below regarding title is merely based on survey number alone which on the facts and circumstances cannot be accepted. Learned Senior Advocate for respondent would support judgment and decree of the courts below. 2. There could be no doubt that being a suit on title respondent has to win on the strength of his case and not on the weakness of the case of the appellant. Exhibit A1 is the partition deed relied on by the respondent. According to the respondent item No.6 in B schedule of Ext.A1 is 2.5 acres in extent comprised in R.S. No.4/2. Respondent has also produced Ext.A2 series for payment of revenue for the said property. On the other side though appellant claimed that he is the absolute owner in possession of the entire land on the west of the compound wall obtained as per a partition deed of the year 1951, that partition deed has not seen the light of the day. Advocate Commissioner measured the properties with the assistance of the Taluk Surveyor. Exhibit C1 is report C2, R.S.A. No.1180 of 2009 -: 4 :- rough sketch and C3, survey plan prepared by the Taluk surveyor. As per Exts.C1 and C3 disputed B schedule is comprised in R.S.N.4/2 in which survey number respondent owns property as per Ext.A1. Property of appellant is comprised in R.S. No.4/3. Advocate Commissioner has also reported that on the south of the property admittedly belonging to the appellant is an old mud wall. Advocate Commissioner found the etha and fence on the southern side of the property belonging to the appellant as old while that on the south of B schedule was found to be a new one. From these circumstances trial court found in favour of the title claimed by the respondent over the property. 3. So far as the challenge to Exts.C1 and C3 is concerned it is true that objection was raised by the appellant even contending that the work memo submitted by the him to the Advocate Commissioner at the spot was declined. Advocate Commissioner was examined as C.W.1. Trial court found that the Advocate Commissioner was not very experienced and hence was not able to give details of the survey and some discrepancies were brought out in his evidence. Trial court also observed that properties were measured by the Taluk Surveyor who is experienced and expertised R.S.A. No.1180 of 2009 -: 5 :- in the matter but appellant has not chosen to summon the Taluk Surveyor and question him as to any irregularity in the measurements. In other words, Ext.C3 remained in tact. It is also to be borne in mind that though objection was preferred to Exts.C1 and C3, there was no request on the part of the appellant to get the same remitted to the Advocate Commissioner for further inspection. If as stated by the appellant his work memo was not received by the Advocate Commissioner, appellant could have brought that matter to the notice of the court and requested to remit the report and plan. 4. Yet another objection is that even going by Ext.C3 there is no boundary on the eastern side of the property belonging to the respondent and hence measurement is not correct. It is seen from Ext.C3 that Surveyor has identified and fixed the eastern survey boundary of plaint A schedule. It is also seen that plaint A schedule property and the property on its east lie in different sub divisions. Hence there is no merit in contending that eastern boundary of the suit property was not identified or located. 5. It is contended that Surveyor has not measured the property of respondent and measurement was only of property of the appellant. Learned counsel has given me a copy of Ext.C1, R.S.A. No.1180 of 2009 -: 6 :- report and I find from Ext.C1 that properties of both sides were measured as seen from Ext.C3 as well. 6. Last argument is that merely for the reason that B schedule property fell in the survey number in which respondent is holding property courts below ought not have taken it as part of plaint A schedule. Question whether property could be identified with reference to survey number depends on the facts of each case. There is no invariable rule that in case of conflict between extent, survey number, boundaries, measurement, etc., the one should prevail over the other. In the present case the boundaries and survey number tallied with the case of respondent. According to the appellant he has obtained the property as per a partition deed of the year 1951 (not produced in court). His claim is for 57x48 koles. But on measurement the disputed property was not forming part of the said 57x48 koles over which alone appellant claimed title. It is in these circumstances that the courts below found in favour of respondent and granted a decree for recovery of possession. 7. On going through the judgments under challenge and hearing counsel on both sides I am not satisfied that any substantial R.S.A. No.1180 of 2009 -: 7 :- question of law do arise for a decision. Second Appeal is dismissed in limine. Interlocutory Application No.2690 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv