IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 26TH SEPTEMBER 2007 / 4TH ASWINA 1929 SA.No. 613 of 1994(F) -------------------- AS.61/1988 of SUB COURT, OTTAPPALAM OS.172/1985 of MUNSIFF'S COURT, OTTAPPALAM .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ----------- 1. RAMAKRISHNAN, S/O.KOMBATH KUNJU MOOTHAN, RESIDING AT THALLANNAKKAD DESOM, THANNIKUNNU AMSOM, OTTAPALAM TALUK. 2. KRISHNANKUTTY, S/O. -DO- OF -DO- BY ADV. SRI.P.R.NAMBIAR RESPONDENTS/APPELLANTS/PLAINTIFFS: ------------- 1. AMMUNNI AMMAL, W/O.PUTHAN VEETTIL KUNHIRAMA GUPTAN, RESIDING AT THANNIKUNNU AMSOM, THALLANNAKKAD DESOM, OTTAPALAM TALUK. 2. PARUKUTTY, D/O.KUNHIRAMA GUPTAN OF -DO- 3. VIJAYALAKSHMI D/O. -DO- -DO-. 4. SANKARANARAYANAN, S/O. -DO- -DO-. 5. UNNIKRISHNAN (MINOR) S/O. -DO- OF -DO- (MINOR RESPONDENT 5 BY GUARDIAN IST RESPONDENT) BY ADV. SRI.R.RAJESH KORMATH SMT.S.JAYASREE SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SMT.SANJANA R.NAIR SRI.JAYKAR.K.S. SRI.RAHUL VARMA SRI.V.S.ROBIN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 613/1994/F -2- JUDGMENT Appellant called. Absent. No representation. Appeal is dismissed for default. Sd/- 26/9/07. M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.A. TO JUDGE JP THOMAS P.JOSEPH, J. ------------------------------------------ S.A.No.613 of 1994 ------------------------------------------ Dated, this the 9th day of February, 2009 JUDGMENT The substantial question of law raised for a decision in this second appeal is whether, inspite of the discrepancy in survey number of the property, the first appellate court was justified in reversing the judgment and decree passed by the trial court and granting decree for recovery of possession. 2. Respondents are the legal representatives of late Kunhirama Guptan. The property described in the plaint schedule is a thatched building bearing door No.5/410 of Sreekrishnapuram Panchayat (new No.5/329) and stated to be situated towards the southern portion of 'Pottikkalkunnu parambu'. According to the respondents, 'Pottikkalkunnu parambu' was allotted to the late Kunhirama Guptan as item No.3 of the A Schedule of Ext.A1, partition deed No.1714/70. Kunhirama Guptan constructed the disputed building in the said property and entrusted the same to different persons on lease arrangement. Ultimately, it was entrusted to the first appellant on an oral lease on 1.4.1974 for a rent of Rs.45/- S.A.No.613 of 1994 2 per month. On the death of Kunhirama Guptan, the said property devolved on the respondents. Respondents demanded the appellants to vacate from the said building as per Ext.A3 notice dated 14.5.1985. First appellant denied the entrustment and the title of the respondents as per Ext.A4, reply dated 21.5.1985. Following that, respondents sent Ext.A5, notice dated 11.7.1985 seeking recovery of possession of the building on the strength of their title. The first appellant sent Ext.A6, reply dated 21.7.1985 disputing the title of the respondents. Respondents thereupon filed the suit for recovery of possession on the strength of their title and for damages for use and occupation at the rate of Rs.540/- per annum. Appellants denied the title of the respondents and contended that there was no such entrustment in favour of the first appellant on 1.4.1974. According to the appellants, the schedule building is situated on the southern side of item No.3 of the A Schedule of Ext.A1 and did not form part of the property belonging to late Kunhirama Guptan. Appellants got 12 cents from one Lakshmanan Chettiar alias Kuttan during 1970 for a consideration of Rs.435/- and constructed the S.A.No.613 of 1994 3 disputed building. They also claimed that title of the respondents if any is lost by adverse possession and limitation. First respondent gave evidence as P.W.1 and proved Exts.A1 to A8. The first appellant gave evidence as D.W.1 and proved Exts.B1 to B5. D.W.2 is a witness examined by the appellants to prove that the appellants have constructed the disputed building. D.W.3 is the Executive Officer of the Panchayat who proved Exts.T1 and T2 series. The Advocate Commissioner submitted Exts.C1 and C2 report and plan. That report and plan were remitted to the Advocate Commissioner who, after further inspection submitted Exts.C3 and C4. Learned Munsiff found that item No.3 in A Schedule of Ext.A1 did not form part of the disputed building and dismissed the suit. On appeal at the instance of the respondents, the first appellate court found that the contention of the appellants that they acquired the disputed building is not correct and is not proved. First appellate court also found that Exts.C1 to C4 show that the disputed building forms part of the property claimed by the respondents. According to the first appellate court, the discrepancy in the extent or survey S.A.No.613 of 1994 4 number is of no consequence since the property is lying in well defined boundary. Accordingly, respondents were granted a decree for recovery of possession with damages for use and occupation at the rate of Rs.540/- per annum. 3. It is contended by learned counsel that the first appellate court was not justified in reversing the judgment and decree passed by the trial court which rested on a proper appreciation of the evidence. Learned counsel took me through the evidence to buttress his contention that the disputed building is not proved to be situated in the property referred to as item No.3 of the A Schedule of Ext.A1. 4. In Ext.C4, the Advocate Commissioner has shown the plot 'DEFG' as the portion the appellants claimed to be belonging to and in their possession and enjoyment where the disputed building is situated. The Commissioner noticed that on the east,west and north of the said plot is the property admittedly belonging to and in the possession of the respondents. On the south of the plot claimed to be belonging to and in the possession of the appellants S.A.No.613 of 1994 5 and the property admittedly belonging to the respondents is the Panchayat road. In item No.3 of A Schedule of Ext.A1, the survey number of the property is given as 51/9A3 while in the plaint schedule the survey number originally given is also 51/9A3, but subsequently amended as 59/9A3. In item No.3 of the A Schedule of Ext.A1, the property is described as 'Pottikkalkunnu Parambu' eastern portion 21 x 33 (koles) bounded by kudiyiruppu on the east and south, Pottikkalkunnu Parambu on the west and Pottikkal thodika on the north. 5. So far as the southern boundary is concerned, in item No.3 of A Schedule of Ext.A1 it is stated as 'kudiyiruppu', while in Ext.C4, the southern boundary is the Panchayat road. As per evidence of the first appellant as D.W.1, it is clear that the Panchayat road in its present form was recently formed, though according to D.W.1 there was a lane along the southern side of the property admittedly belonging to the respondents and the 12 cents over which he claimed title and possession. But it is conceded by D.W.1 that he had no such case in Ext.A4 or A6, reply notice sent S.A.No.613 of 1994 6 by him. Result is that there is no acceptable evidence to show that before the Panchayat road on the southern side was formed, there was any lane on the southern side as now claimed by the first appellant in his evidence as D.W.1. The Panchayat road was formed on the southern side after Ext.A1. Therefore, merely because of the discrepancy regarding the southern boundary, no inference is possible that the schedule building is not situated in the property referred to as item No.3 of the A Schedule of Ext.A1. It is also pertinent to note that even according to the appellants and as shown in Ext.C4 also the southern boundary of the 12 cents they claimed and the southern boundary of the property admittedly belonging to the respondents is the very same Panchayat road. 6. So far as the boundaries on the north, east and west of the land referred to in the plaint schedule is concerned, the boundaries given in the plaint schedule are of the rest of the property belonging to the respondents as per Ext.A1. Hence there cannot be any discrepancy in that regard. 7. There is no hard and fast rule that when there is S.A.No.613 of 1994 7 discrepancy regarding survey number, extent or boundary, the one or the other should prevail over the other. For, that depends on the facts and circumstances of each case. The one description which is more clear has to be accepted. In one case, it may be the description by survey number that may prevail. In another case it may be the extent and in yet another case it may be the boundaries. In this case, there is discrepancy in the survey number as I have stated. Item No.3 of the A Schedule of Ext.A1 originally was shown in the plaint schedule as in survey number 51/9A3, but later with the permission of the court it was amended as 59/9A3. In a case of this nature when the property is shown to be lying within a well defined boundary, the discrepancy regarding extent or a mistake in survey number should yield to the description by boundaries. 8. I shall refer to the claim made by the appellants. The claim made by the appellants is over 12 cents where they say, the building is situated. According to them, first appellant purchased the said 12 cents from one Lakshmana Chettiar alias Kuttan in the year 1970 for a consideration of Rs.435/-. Apart from the fact that S.A.No.613 of 1994 8 there could not have been a valid sale of immovable property for more than Rs.100/- except by way of a registered document, there is absolutely no evidence to substantiate that contention. The first appellant when examined as D.W.1 was finding it difficult to stand by his contention regarding the purchase of 12 cents from Lakshmana Chettiar alias Kuttan. He says that he does not know when and how Lakshmana Chettiar acquired the said 12 cents. At one stage, he even said that the said 12 cents originally belonged to the late Kunhirama Guptan, the predecessor of the respondents from whom the said Lakshmana Chettiar had allegedly purchased it. D.W.1 was not sure whether it was an outright purchase or an entrustment to Lakshmana Chettiar. Though admission cannot confer title, it is the best form of evidence and in the factual situation of this case, evidence of D.W.1 that the 12 cents originally belonged to the late Kunhirama Guptan lends support to the contention of the respondents that the schedule building is situated in the property referred to as item No.3 of the A Schedule of Ext.A1 and acquired by the late Kunhirama Guptan. Though appellants examined D.W.2 to S.A.No.613 of 1994 9 support their contention, his evidence would show that he has no information about the alleged sale or entrustment, as the case may be, in favour of Lakshmana Chettiar or in favour of the first appellant. 9. Now I shall refer to the evidence of D.W.3 the Secretary of the Panchayat who proved Exts.T1 and T2 series. Ext.B5 is the certificate issued from Sreekrishnapuram Panchayat. It is certified in Ext.B5 that building bearing door No.5/410 is owned and possessed by one Ramakrishnan (first appellant) as per office records. But as against that, in Ext.A7 it is certified by the very same Panchayat that building bearing door No.5/329 belonged to the first respondent. (In the plaint schedule the old door number of the building is stated as 5/410 and its present number as 5/329). D.W.3 admitted that it was after proper enquiry that Ext.A7, certificate was issued. The first appellate court has considered the evidence and found that the evidence of D.W.3 is not helpful to the appellants. 10. Ext.B1 is a licence fee receipt dated 15.11.1973 issued from the Panchayat to the first appellant for payment of P.F.A. Licence fee. According to the respondents, the entrustment in favour S.A.No.613 of 1994 10 of the first respondent was on 1.4.1974. Ext.B1 comes prior to the date of entrustment pleaded by the respondents. But, that is of no consequence since the respondents are seeking recovery of possession of the building on the strength of their title. 11. Though it was contended by the appellants that the title of the respondents is lost by adverse possession and law of limitation, in the light of the evidence on record and in the absence of anything to show that the appellants were holding the property with the necessary hostile animus towards the respondents, that contention cannot succeed. 12. Though the appellants claimed that they are in possession of 12 cents (where the disputed building is situated), no acceptable evidence for that also is let in. The mere fact that the said portion and the rest of the property admittedly belonging to the respondents lie on different levels is not sufficient to show that the appellants are in possession of the said 12 cents. On a consideration of the entire evidence I find no reason to interfere with the findings entered by the first appellate court that the disputed building formed S.A.No.613 of 1994 11 part of the property referred to as item No.3 of the A Schedule of Ext.A1 and that the respondents are entitled to recover possession of the building on the strength of their title. 13. The damages awarded by the first appellate court for use and occupation is at the rate of Rs.540/- per year, which is based on the claim of the respondents that the scheduled building was entrusted to the first appellant on undertaking to pay Rs.45/- per month. Concededly, appellants did not vacate the premises on demand by the respondents. Hence appellants are liable to pay damages for use and occupation. There is little reason to interfere with that part of the decree as well. 14. No other points arise for consideration. Appeal fails. It is dismissed. No costs. THOMAS P.JOSEPH (JUDGE) vns