IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 SA.No. 738 of 1998(D) --------------------- APPELLANT(S)/RESPONDENT/PLAINTIFF: -------------- ABDUL SAMAD, S/O.UNNIKUNJU, KAPPAMMOTTIL, ERUVAMURI, PATHIYOOR VILLAGE. BY ADV. SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE RESPONDENT(S)APPELLANTS/DEFENDANTS: --------------- 1. MRS.SAINABA, W/O.AHAMMEDKUTTY, CHEMPAKAPPALLIL, ERUVA MURI, PATHIYOOR VILLAGE.. 2. MR.SADIK, S/O.AHAMMEDKUTTY, -DO- -DO- 3. MR.SHAFY, -DO- -DO- 4. MR.HANAFY, -DO- -DO- ADV. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) SRI V.J.JOHN & LUIZ GODWIN D'COUTH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.738 of 1998 -------------------------------------- Dated this the 17th day of February, 2009. JUDGMENT Though appellant/plaintiff approached the court with a mere request to fix the eastern boundary of the property allegedly belonging to him and paying court fee under Section 50 of the Court Fees and Suits Valuation Act, the court ventured to conduct a detailed enquiry regarding his title. Trial court found that the appellant has title over plaint 'A' schedule and fixed its eastern boundary as prayed for based on Ext.C1(a), plan prepared by the advocate commissioner. Respondents/defendants carried the matter in appeal. The first appellate court found that though the appellant has nine cents of land as per Ext.A1, but that is not the property scheduled in the plaint and dismissed the suit. Plaintiff has come in Second Appeal. 2. The substantial question of law raised for a decision is whether the finding of the first appellate court that the appellant has no right or possession over the plaint A schedule is based on any legal evidence. Learned counsel for appellant/plaintiff contended that the first appellate court was not justified in observing, in the absence of any evidence that the property referred to in Ext.A1, assignment deed No.2399 of 1967 in favour of the appellant is not covered by the descriptions in the plaint schedule. Learned counsel also submitted that at any rate, if the first appellate court was not satisfied with the evidence on record or, the measurement of the properties as done by the advocate commissioner, SA No.738/1998 2 the proper course was to send the case back to the trial court for fresh consideration after proper survey of the properties. Learned counsel for respondents/defendants supported the finding of the first appellate court. Learned counsel maintained that Ext.A1 is not a genuine document and that it was created for the purpose of annexing the property belonging to the respondents. 3. The property described in the plaint A schedule is nine cents comprised in survey No.8950 A/2. Appellant claimed title over that property as per Ext.A1, assignment deed executed by Abubacker Kunju through his power of attorney holder, Kochunnunni who is none other than the father of the appellant. To meet the contention raised by the respondents that Kochunnunni had no authority to execute Ext.A1 as power of attorney holder, appellant produced Ext.A6, general power of attorney executed by Abubacker Kunju in favour of said Kochunnunni. Appellant contended that the said nine cents described in plaint schedule is bounded by National Highway on the west and plaint B schedule belonging to the respondents on the east. There are visible boundaries on all sides except the eastern side. Therefore appellant wanted the eastern boundary of the property to be fixed. The property belonging to the respondents is described in the plaint B schedule as 40 cents in survey No.8947 which was later corrected as '8951' following the report and plan submitted by the advocate commissioner. Respondents contended that Ext.A1, assignment SA No.738/1998 3 deed in favour of the appellant is fabricated and that the description of the property made there is not correct. The vendor of the appellant had no right to deal with that property and no such property as described in plaint A schedule is in existence. They also contended that the total extent of the plaint B schedule property is not 40 cents as stated therein, but 43 cents. It is not correct to say that plaint A schedule lies in between the plaint B schedule and National Highway. According to the respondents, the western boundary of the property belonging to them is the National Highway. That property belonged to Ahammed Kutty, husband of the first respondent and on his death it devolved upon the respondents. The attempt of the appellant/plaintiff by seeking fixation of the eastern boundary as stated in the plaint schedule is to snatch away the property belonging to the respondents and in the possession of the respondents. 4. Learned Munsiff framed the issue whether the suit is maintainable and whether the appellant is entitled to get decree for fixation of boundary. On the issue whether appellant is entitled to get fixation of boundary as prayed for, learned Munsiff observed that Ext.C1(a), plan and Ext.A1 proved that appellant had title over the plaint A schedule. To arrive at that conclusion, learned Munsiff placed reliance on Exts.A2 and A3, receipts for payment of revenue, Ext.A4, the encumbrance certificate in respect of the suit property, Ext.A5 (original of it is Ext.X1), copy of security bond executed by the appellant and his brother allegedly in respect of the suit property in favour of Pathiyoor Village SA No.738/1998 4 Co-operative Bank Ltd. whose Managing Director is PW2. PW3, son of Abubacker Kunju, the vendor of Ext.A1 also supported the appellant. In appeal, learned Additional District Judge referred to the documents produced by both sides and observed in paragraph 11 of the judgment that the measurement of the properties (A and B schedules) as per Ext.C1(a) alone is not satisfactory and that the Taluk Surveyor has not surveyed the properties in accordance with the survey plans available in the revenue records. Learned Additional District Judge was of the view that the documents produced by the respondents justified their contention regarding their right title and possession over the plaint A schedule and concluded that appellant also is having title over nine cents in survey No.8950/A but the property obtained by the appellant under Ext.A1 lies north of the property held by the respondents (appellants in the first appellate court). To state so, the learned Additional District Judge referred to the boundary descriptions in Ext.B5, the document of title in favour of respondents where the western boundary of the property is stated as National Highway. It is that finding of the learned Additional District Judge is under challenge in this Second Appeal. 5. I find that the courts below have gone into a detailed enquiry into the title of the contesting parties though the suit is merely for fixation of boundary and no other reliefs are claimed by the appellant. I also find that appellant had paid only fixed court fee of Rs.50/- for fixation of boundary under SA No.738/1998 5 Section 50 of the Court Fees and Suits Valuation Act. True that a suit for fixation of boundary is a suit of a civil nature which comes within the purview of Sec.9 of the Code of Civil Procedure (for short, “the Code”) and is therefore, maintainable as held by this Court in P.Narayanan Nair v. E.Achuthan Nair & another (1973 KLT 299) and confirmed by the Supreme Court in Achuthan Nair v. Narayanan Nair (1987 (2) KLT 777). But, a reading of the decision in P.Narayanan Nair v. E.Achuthan Nair referred supra, would show that it was not a case involving any real dispute regarding title but the dispute was only with regard to the possession of the plaintiff which the courts found in his favour and therefore the issue which survived was only regarding the fixation of boundary. In the Supreme Court the question canvassed was whether a suit merely for fixation of boundary would lie that question was answered in the affirmative since such a suit is of a civil nature as contemplated under Section 9 of the Code. But, in cases where there is real dispute regarding title and possession, in my view it is not possible to straight away go into the question of fixation of boundary since fixation of boundary cannot be a method for overreaching contentions regarding title and possession. When there is real dispute regarding title and possession, those issues have to be decided first before the boundary of the property is fixed. That is the view taken by a learned Judge of this Court in Bapputty @ Saidali v. Cheriakutty @ Veerankhani (1990 (1) KLJ 218). There ofcourse, though serious disputes regarding title and possession SA No.738/1998 6 were raised, parties had not adduced any evidence including as to the alleged cause of action pleaded by the plaintiff but, the learned Judge observed in paragraph 6 thus: “.............So also, fixation of boundaries in such a suit could only be after settling various other disputes as to title and possession put forward by the appellants. Fixation of boundary cannot be a short cut to over-reach such contentions. Fixing boundaries and then directing the parties to settle their disputes including the correctness of the boundaries elsewhere is not a decision at all”. 6. Respondents have disputed the title and possession of the appellant in the plaint A schedule property. Ext.B5, the document of title in their favour shows its western boundary as the National Highway. In Ext.A1, the title deed in favour of the appellant also the western boundary stated is the National Highway. Though I do not intend to pronounce verdict, at this stage on the contentions raised by the respondents as to the title and possession of plaint A schedule property, I find that some documents are produced by the respondents to support their contentions. The appellant has also produced some documents to support his contention. I stated that courts below have enquired into the title and possession in respect of the suit property but without any SA No.738/1998 7 prayer for declaration of title or possession and without payment of court fee under the relevant provisions of the Court Fees and Suits Valuation Act for such enquiry. The result is that ultimately the first appellate court found in such a situation and without even framing a proper issue regarding title and possession that the appellant has no title or possession over the plaint A schedule. In the absence of any issue regarding title and possession , the court was not called upon to enquire into that. As I have already stated, I am inclined to accept the contention of the learned counsel for the appellant that such an observation was not warranted in the facts and circumstances stated above. In the nature of the contentions raised by the parties here to, I am of the view that the relief of fixation of boundary could be granted only after settling the other issues involved in the case. 7. So far as identification of the property is concerned, it is contended by learned counsel for respondents that it is based merely on Ext.A1 and that exactly is the reason for learned Additional District Judge observing that the measurement was not based on survey records. According to the learned counsel for the appellant, Ext.C1 itself states that the surveyor was present with survey plan and therefore, there is no reason to think that the measurement was not based on the survey plan also. But it would appear that properties were not measured with reference to the relevant prior documents. In the nature of the contentions raised by the respondents it may be necessary to SA No.738/1998 8 measure the properties not merely with reference to the documents of title on which the parties are now claiming right, title and possession but also with reference to the relevant prior documents for proper adjudication of the real dispute involved. This however is a matter to be decided by the appropriate court and hence I leave that matter there. 8. I found that the relief of fixation of boundary in the nature of the contentions raised by the parties could be granted only after settling the contentious issues regarding title and possession. Supreme Court has held in Ramavilasom Grandhasala v. N.S.S.Karayogam (2009(1) ILR (Ker.) 303) that when second appellate court is interfering with finding of fact be it as it is perverse or based on no evidence, the matter has to be remitted to the first appellate court for proper decision on facts. In the light of that, this case ought to have been remanded to the first appellate court for decision on facts. But, that exercise will be futile in my view, since there must be proper enquiry as to the title and other allied matters after proper reliefs are sought and framing proper issues and if necessary after measurement of the properties in the manner found suitable by the trial court. Therefore, I am inclined to remit the matter to the trial court for fresh consideration and disposal in the light of the observations made above. Consequently, the judgment and decree of the courts below cannot be sustained and are liable to be set aside. All the findings entered by the courts on the contentious issues are set aside and are left open for fresh SA No.738/1998 9 consideration. Resultantly, Second Appeal is allowed by way of remand. Judgment and decree passed by the first appellate court as well as trial court are set aside and the case is remitted to the trial court for fresh consideration in the light of the observations made above. It will be open to the parties to amend their pleadings suitably if they so advised and adduce further evidence in support of their respective contentions. Parties shall appear in the trial court on 18.3.2009. Registry shall send back the records to the trial court forthwith. THOMAS P.JOSEPH, Judge. cks SA No.738/1998 10 Thomas P.Joseph, J. S.A.No.738 of 1998 JUDGMENT 17th February, 2009.