IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 SA.No. 416 of 2001() -------------------- AS.34/1993 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.397/1987 of MUNSIFF'S COURT,PATHANAMTHITTA .................... APPELLANTS/APPELLANTS/PLAINTIFFS -------------- 1. GOWRIKUTTY AMMA THANKAMANY AMMA, PADINJAREMANNIL HOUSE, MANJINIKKARA, OMALLOOR, PATHANAMTHITTA. 2. ASHA P. PILLAI, -DO- -D- 3. PRAMOD P. PILLAI, -DO- -DO- 4. PRASANTH P. PILLAI, -DO- -DO- BY ADV. SRI.SEBASTIAN PHILIP RESPONDENT/RESPONDENT/DEENDANT: --------------- PONNAMMA SYAMALA, PADINJAREMANNIL HOUSE, MANJINIKKARA MURI, OMALLOOR VILLAGE, NOW RESIDING ATL THATTAYIL PURAKKARAMEECHERI MANGALATHU, ADOOR. SRI.V.G.ARUN SRI.T.R.HARIKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT When the matter was called, neither the appellants nor the counsel are present. Appeal is dismissed for default. 16th June, 2009 Sd/- Harun-Ul-Rashid, Judge. -2- S.A.No.416/2001 Order on CMP.No.939/01 in S.A.No.416/2001 ----- Dismissed 16/6/2009 Sd/-Harun-Ul-Rashid, Judge True Copy P.S. to Judges THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.416 of 2001 --------------------------------------- Dated this 13th day of January, 2010 JUDGMENT The substantial question of law framed for a decision in this second appeal is whether the lower appellate court being a fact finding court has gone wrong in not understanding the case of the parties and ignoring the evidence in the cases. After hearing both sides, the following substantial question of law is also framed for a decision. 'Whether, the courts below having found that Exts.C1 to C3 are not acceptable were justified in non-suiting appellants/plaintiffs without giving opportunity to take out a fresh commission?.' The second appeal arises from judgment of learned Additional District Judge, Pathanamthitta in A.S.No.34 of 1993 confirming dismissal of O.S.No.397 of 1987 by the learned Munsiff, Pathanamthitta. Appellants and respondent are relatives and trace their title in respect of the respective property to Ext.A4, partition deed of the year 1123. Plaint schedule item No.1 is described as 69 cents with excess land comprised in survey No.19/5A/1 allegedly belonging to appellant No.1 as per Ext.A1, sale deed No.2326 of 1977 executed by one of the parties in Ext.A4. Plaint schedule item No.2 is 69½ cents comprised in survey No.140/1/62 allotted to the share of appellant No.2 as per S.A.No.416 of 2001 2 Ext.A4, partition deed. The property of respondent is on the north of item Nos.1 and 2 which lie contiguously. Appellants would say that there is a anjili tree on the north-eastern corner of plaint schedule item No.1 within the survey boundary of that item. It is also the case of appellants that there is no specific boundary between plaint schedule item Nos.1 and 2 and the property of respondent situated on its north. They apprehended that respondent might cut and remove the anjili tree. Hence appellants sued for fixation of boundary and injunction. According to the respondent, suit property and the property belonging to her formed part of Thekkinal purayidom which along with other items was subjected to partition as per Ext.A4 in the year 1123. At that time respective plots allotted to the sharers were measured and boundary was fixed. Respondent was allotted 54 cents on the northern side of property belonging to the appellants. That 54 cents has specific boundary on its southern side. There is a river on the southern side of property of the appellants and due to soil erosion appellants have lost a portion of their property. Attempt of the appellants is to make up the deficit from the property of the respondent. She also claimed title by adverse possession and limitation over the area where the disputed anjili tree is situated. PW2, Advocate Commissioner with the assistance of PW3, Surveyor measured the property and submitted reports and plan, Exts.C1 to C3. Advocate Commissioner reported in Ext.C2 about a temporary mud wall at a height of about one foot in S.A.No.416 of 2001 3 between properties of appellants and respondent. Trial court found that measurement of property by the Surveyor is not proper and hence no reliance can be placed on Exts.C1 to C3. Trial court was of the view that since there is a physical boundary between the properties as reported by the Advocate Commissioner fixation of boundary is not required. So far as claim on the disputed anjili tree is concerned trial court was inclined to accept the plea of respondent that she has perfected title over that tree by adverse possession and limitation. Holding so, the suit was dismissed. Appellants took up the matter in appeal. Learned Additional District Judge appears to have had a mistaken impression about the respective properties to which the parties were admittedly entitled, referred to the yellow shaded portion in Ext.C3 as the property belonging to the appellants and the property on its south shown in light green colour as property belonging to the respondent while actually it was vice versa. Appellate court was not inclined to interfere with the judgment of the trial court. A request for remand was made by the appellants to get the property properly measured but that request did not find favour and consequently appeal was dismissed. Hence the second appeal. It is argued by learned counsel for appellants that in so far as courts below were not satisfied with Exts.C1 to C3 and the measurements made by PW3, the Surveyor appellants ought to have given an opportunity to get the property measured correctly. It is the argument of learned counsel that courts S.A.No.416 of 2001 4 below went wrong in holding that there is a physical boundary though temporary in between the properties. Learned counsel invited my attention to the evidence of PWs.2 and 3 to buttress his contention that the physical boundary which allegedly existed was not along QM line shown in Ext.C3 and at any rate, that was not a physical boundary between the properties possessed by the parties. Learned counsel contended that there is no mention about nature of any physical boundary in the written statement of respondent and at any rate evidence of PWs.2 and 3 as to whether that physical boundary is along QM line in Ext.C3 is not convincing. It is also argued by learned counsel that according to PW3, oldness of the physical boundary was about two years at the time of inspection in the year 1991 while, the suit was filed in the year 1987 which revealed that the said boundary was put up only after filing of the suit which could not have decide the issue between the parties. The further contention is that finding of the trial court that respondent has perfected title over the anjili tree by adverse possession and limitation is not correct since that finding is made disregarding the evidence of PWs.2 and 3 as to the location of the anjili tree and merely based on the evidence of DW1 that she has been cutting leaves of the anjili tree. It is contended by learned counsel for the respondent in response that the suit is merely for fixation of boundary and hence, what is required to be ascertained is only whether there is a physical boundary between the properties. If S.A.No.416 of 2001 5 there is a physical boundary court has to lay its hand off leaving it to the parties to sue on title for other appropriate reliefs. 2. It is not disputed that the parties or their predecessor-in- interest trace title and possession of the disputed properties to Ext.A4, partition deed of 1123. As per Ext.A1, item No.1 of the plaint schedule is 69 cents made up of 61 cents in survey No.19/5A/1 and 8 cents in survey No.140/1/62 and item No.2 should be 69½ cents in survey No.140/1/62. Thus, total entitlement of the appellants as per Ext.A4 and the purchase as per Ext.A1 should be for 1.38½ acres. But in Ext.C3, Commissioner and Surveyor have shown the extent of plaint schedule item Nos.1 and 2 as 1.10 acres in survey No.19/5A/1 and 11 cents in survey No.140/1/62 thus totaling 1.21 acres. So far as entitlement of the respondent is concerned, extent of the property as per Ext.A4 is 54 cents while in Ext.B2, partition deed executed between respondent and her mother in the year 1972 in respect of the said 54 cents allotted to the respondent and her mother as per Ext.A4, extent of the property is stated as 52cents. The Commissioner on measurement found extent of the property to which respondent is entitled as 48 cents. The said 48 cents is the yellow shaded plot in Ext.C3 while the 1.21 acres belonging to the appellants and situated on its south is shown in light green colour. It is not disputed that there is a panchayath road on the west and north of the entire properties and according to the learned counsel for appellants, it is making use of the S.A.No.416 of 2001 6 portion of the property of appellants and respondent that the said roads were widened. It is also not disputed that on the southern side of property of appellants is the river. Commissioner has shown in Ext.C3 on the east of the property belonging to the appellants and respondent the blue shaded portion as puramboke land. Regarding that also there appears to be some discrepancy in that extent of puramboke land (KLMPCB in Ext.C3) as stated by the Commissioner is 14 cents while the argument advanced on behalf of the respondent in the courts below based on Ext.B1, settlement register is that extent of puramboke land excluding the 7 cents given to one Mathai is only 5 cents. The correctness of Exts.C1 to C3 so far as measurement is concerned was found against by the courts below. Trial court has adverted to that issue in para 18 of the judgment and said that having admitted widening of the roads on the north and west making use of property of appellants and respondents neither the Commissioner nor Surveyor made any attempt to locate the extent of the property surrendered for widening of those roads. That also was taken as a reason not to accept Exts.C1 to C3. As it is concurrently found, Exts.C1 to C3 are not reliable to decide the respective entitlement of the parties as per the documents of title relied on by them. 3. Then the question is whether courts below were justified in finding that a physical boundary exists in between the property of the contesting parties. That finding is based on the report (Ext.C2) of PW2, S.A.No.416 of 2001 7 Advocate Commissioner. Commissioner reported that at the time of inspection in the year 1991 there was a mud wall at a height of one foot extending east-west in between the properties. But PW3, Surveyor was not able to say whether that mud wall was along QM line shown in Ext.C3. Learned counsel for respondent has argued that in Ext.C2 Commissioner has shown the property in the possession of appellants and respondent as the light green shaded and yellow shaded portion respectively in Ext.C3 and hence possibility is that the mud wall was along QM line. 4. It is argued that it is unlikely that parties were possessing and enjoying the properties without any physical boundary since the last several years. Such a contention prevailed with the trial court. But I must bear in mind that PW2, Commissioner reported oldness of the mud wall as two years at the time of his inspection in the year 1991 while the suit is filed in the year 1987. It so, possibility of the mud wall coming into existence after filing of the suit cannot be ruled out. Therefore the mud wall could not have been taken as a permenant physical boundary of properties in the possession of respective parties. 4. So far as the disputed anjili tree is concerned, though PW2, Advocate Commissioner has reported that almost 3/4th of the anjili tree is situated in the property in the possession of the respondent and that rest of the tree is situated in the property in the possession of S.A.No.416 of 2001 8 appellants and in the puramboke land situated on the entire eastern side, Ext.C3 does not approve that. In Ext.C3, disputed anjili tree is shown to be on the north eastern corner of the property in the possession of appellants at point 'M'. PW3 stated that anjili tree is situated in the puramboke land a bit south of point 'M' in Ext.C3. So far as ownership of boundary tress is concerned, in Mythiankunju Vs. Pareenthkunju (1971 KLT 826) it has been held that primarily it has to be fixed based on the location where the trunk is situated. In Achuthan Vs. Sumitra & Ors. (1987 (1) KLT 457) it is stated, “ to determine the arboreal ownership, the first test is to determine the ownership of the boundary tree lies in the question of fact, where was the tree is planted?. If it can be found that the reasonable amount of certainty, as a fact that the tree was planted in one owner's land then the gradual growth of the trunk roots and branches, which leads to trench upon the neighbour's property does not affect the ownership of the tree. If such evidence is not possible then the pragmatic and simple rule to be applied is where the trunk stands protanto.” None of these rules have been applied in the present case. Instead, a plea of adverse possession and limitation raised by the respondent was accepted on the evidence of DW1 that she has been cutting leaves of the disputed tree. I am not at the issue whether that evidence is sufficient to decide the question of adverse possession and limitation. S.A.No.416 of 2001 9 I must also bear in mind that though at least a portion of the tree is in puramboke land, the government is not made a party to the suit so far as the claim over the anjili tree is concerned. On going through the judgments under challenge I find that courts below found on Exts.C1 to C3 so far as measurement of the properties is concerned is not acceptable. In that situation, the first appellate court when a request for remand was made ought to have allowed that request and sent back that case to the trial court for fresh disposal after obtaining a properly prepared plan of the property taking into account the areas allegedly formed on the road on the north and west as also the extent of the puramboke if any on the east of the properties. In that view I am inclined to sent the case back to the trial court for fresh disposal after giving both sides opportunity to amend their pleadings, incorporate fresh reliefs if any if and if so advised and impleading the government if that course is found necessary in view of the report that a portion of the anjili tree is situated in government land. As Exts.C1 to C3 are found not useful to decide the dispute trial court shall appoint a fresh commission and get a properly measured plan and decide the contentious issues. Findings entered by the courts below in the circumstance are set aside. Substantial questions of law framed are answered accordingly. Resultantly the second appeal is allowed by way of remand. Judgment and decree of the courts below are set aside and the case is S.A.No.416 of 2001 10 remitted to the trial court for fresh disposal in the light of the observation made above. Parties shall appear in the trial court on 27- 02-2010. It will be open to the parties to request the trial court to expedite trial and disposal of the case. Registry shall sent the records of the case to the trial court immediately. THOMAS P JOSEPH, JUDGE Sbna/