IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 RSA.No. 418 of 2008() ------------------------------- AS.39/1996 of SUB COURT, TIRUR OS.161/1992 of MUNSIFF COURT, PARAPPANANGADI .................... APPELLANT/ IST RESPONDENT/ PLAINTIFF --------------------------------------------------------------- PALLIKKATTIL KANNATHAYATH KUNHU NAIR S/O. DEVAKI AMMA, 62 YEARS, PARIYAPURAM AMSOM DESOM,P.O. PARIYAPURAM, TIRUR TALUK. BY ADV. SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER RESPONDENT(S): APPELLANTS & RESPONDENTS 2 TO 4 /D1 TO D5 & D7 TO D9 ---------------------------------------------------- 1. KAKKATTIL RUGMANI AMMA 48 YEARS,W/O. SREEDHARAN NAIR PARIYAPURAM AMSOM DESOM, TIRUR TALUK, P.O.PARIYAPURAM, TANUR. 2. PRAMODHKUMAR S/O. KAKKATTIL RUGMANI AMMA 25 YEARS, DO..DO.. 3. JYOTHI D/O.KAKKATTIL RUGMANI AMMA 19 YEARS, DO...DO.. 4. PRADEESH KUMAR S/O.KAKKATTIL RUGMANI AMMA 19 YEARS, DO...DO.. 5. SUBHA, D/O.KAKKATTIL RUGMANI AMMA 12 YEARS, (BY GUARDIAN IST RESPONDENT) DO..DO... R.S.A. NO.418/2008 6. KANNATHAYATH PADMANABHAN, 47 YEARS S/O. DEVAKI AMMA, PARIYAPURAM AMSOM DESOM POST PARIYAPURAM, TIRUR TALUK. 7. KANNATHAYATH DEVAKI AMMA'S CHILDREN BALAKRISHNAN NAIR, 72 YEARS, DO..DO.. 8. P.K. BHARGAVI AMMA 70 YEARS, DO..DO... R1 – R4 BY ADV. SRI.K.RAMACHANDRAN, SRI.S.SREEDEV. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2010, THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 418 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of July, 2010. JUDGMENT In this Second Appeal, the question that is thrown up for consideration is when there is conflict between the extent and the boundary, which is to prevail. 2. O.S. 161 of 1992 before the Munsiff's Court, Parappanangadi was a suit for declaration and for permanent injunction. The plaintiff based his claim on Ext.A1 partition deed dated 8.8.1966. According to the plaintiff, he obtained item No.1 of A6 schedule in Ext.A1 partition deed. There is way on the east of entire Kilarthu paramba property and the plaint schedule property, which was being used to take cattles to paddy fields lying nearby. The plaintiff would claim that while the partition was effected, the way was not kept as open to all but was allotted to his share. The predecessor in R.S.A.418/2008. 2 interest of the defendants, who was a party to Ext.A1 partition deed was allotted 'punchanilam' lying on the east of the plaint schedule property. According to the plaintiff, there is no definite boundary on the eastern side and it has become necessary to put up a boundary to protect the property from trespass. Hence the suit. 3. The defendants resisted the suit. They pointed out that there is an old etha on the eastern side of the plaint schedule property. At the time of partition, emphasis was given to the extent of property that was set apart to each of the sharers. They disputed that the eastern boundary of the property allotted to the plaintiff is 'punchanilam'. They disputed that they are trying to trespass into the property. Pointing out that the plaintiff is not entitled to any relief, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts. A1 to A5 from the R.S.A.418/2008. 3 side of the plaintiff. The defendants had D.W. 1 examined. Exts.C1 to C6 are the commission reports and plans. 5. The trial court on an elaborate consideration of the matter agreed with the plaintiff and a decree was passed in the following terms: “In the result, the suit is decreed fixing GH line in Ext.C1 plan as the eastern boundary of the plaint schedule property. A permanent injunction also is issued restraining the defendants from interfering with the peaceful possession of the plaintiff over plaint schedule property and on its eastern boundary. Ext.C1 plan will form part of the decree. The parties are directed to bear their respective costs.” 6. The defendants carried the matter in appeal as A.S.39 of 1996. The appellate court modified the trial court decree and passed a decree in the following terms: “In the result, 1. The appeal stands allowed. 2. The judgment and decree of the lower court are set aside and the suit is decreed fixing the line R.S.A.418/2008. 4 EF as the eastern boundary of the plaint schedule property; 3. Ext.C1 plan shall form part of the decree; 4. There shall be an injunction against the defendants from interfering with the peaceful possession of the plaint schedule property, the identity of which is determined as the plot AFED in Ext.C1 plan; 5. The parties are directed to suffer their respective costs.” 7. Learned counsel appearing for the appellants contended that the lower appellate court was not justified in discarding the boundaries and taking into consideration the measurements shown in the partition deed. According to learned counsel, it is trite that in case of conflict between boundaries of the properties and its extent, boundary prevails. In the case on hand, learned counsel pointed out that in fact a commission report was filed and it was on the basis of the commission report that the suit was decreed. R.S.A.418/2008. 5 There was no justification for the lower appellate court to modify the decree as it did. 8. Learned counsel appearing for the respondents pointed out that the lower appellate court has found that it is not possible to reconcile the boundaries in the document with the one available at site, and therefore the safest method is to go by the measurements shown in the partition deed. Learned counsel drew the attention of this court to the fact that by virtue of the appellate court decree, the plaintiff gets excess land. Therefore there is no grievance for the plaintiff. 9. In order to understand the real dispute involved in the proceedings, it will be useful to refer to the commission report. The sketch produced along with the report shows that there is a well laid boundary on the eastern and western sides of the plaint schedule property. The commissioner has noticed that it is a very old boundary. The middle measurement of the property is shown as 53 feet. The property to which the claim is laid is shown as R.S.A.418/2008. 6 ABCD. BCEF is the way that runs on the eastern side of the plaint schedule property. EFGH is the property that situates between western side of the pathway and on the eastern side of the plaint schedule property. It is after this property that the paddy fields begin. The trial court was of the view that the plaintiff is entitled to 63 koles of property and decreed the suit accordingly fixing the boundary on the eastern side of the property as GH. 10. This was attacked by the defendants in the suit. According to them, the eastern boundary of the property owned by the plaintiff is BC in the plan. 11. The lower appellate court found that the boundaries cannot be relied on. It needs to be noticed that on a consideration of the materials on record and evidence, it seems that care was taken to specify the measurements of the properties that were allotted to each of the sharers in the partition deed. In fact the evidence is to the effect that the parties were more concerned with the extent of property that is given to each of them, rather than anything R.S.A.418/2008. 7 else. The appellate court, as already noticed, has gone by the measurements in the document. 12. Learned counsel appearing for the appellant took this court to the entire evidence and pointed out that the findings of the lower appellate court are incorrect. 13. It is difficult to accept the above contention of the appellant. As already noticed, on measurement the property of the plaintiff, it measures 57 feet. Out of this 57 feet, about 4 feet has been taken for the road, which is shown in the plan. It is significant to notice that there is a well laid boundary on the western side of the road. The commission report shows that the road lies about 2 ½ feet lower than the plaint schedule property. The fact that there is a well laid boundary on the western side of the pathway and the fact that the pathway lies at a much lower level, prima facie casts suspicion about the plaintiff's claim. On going through the judgment of the lower appellate court, it can be seen that the court below has taken considerable pains to try to identify the properties with reference to its R.S.A.418/2008. 8 boundaries. But the court below was not successful. So, it went on by the extent given in the document. In the light of the decision relied on in Savithri Ammal v. Padmavathi Amma (1990(1) K.L.T. 187) it cannot be said that the approach made by the lower appellate court was quite unjustified. That is the one possible view. It has already been noticed that by accepting the commission report the plaintiff has gained a few more cents of property. The claim of the plaintiff that his property begins from AB line on the west and GH line on the east cannot be accepted. As rightly noticed by the learned counsel for the respondents, the parties seen to have taken much care and caution in ensuring that each of the shares get the extent of the properties set apart to them. That is evident from the deed of partition, which is marked as Ext.A1. 14. It was the above facts and circumstances, which made the lower appellate court to vary the decree of the trial court and grant a modified decree in favour of the plaintiff. R.S.A.418/2008. 9 15. The approach of the lower appellate court seems to be justified and reasonable. Even assuming that a different view is possible, that by itself is not a ground to interfere in this Second Appeal filed under Section 100 of the Code of Civil Procedure. It is not shown that the finding of the lower appellate court is in any way perverse or contrary to the evidence adduced in the case. No substantial question of law arises for consideration in this appeal. The Second Appeal is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.