IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 SA.No. 49 of 1995(E) -------------------- AS.93/1993 of ADDL.S.C.,THALASSERY OS.353/1991 of PRL.M.C.,KANNUR .................... APPELLANT(S)/APPELLANTS/PLAINTIFFS: --------------------------------------------- 1. ADICHERRYKANDY BALAKRISHNAN, S/O.LATE KELU MANIYANI, MANJU NIVAS, NEAR CRC KOLACHERRY AMSOM, PERUMACHERRY DESOM., P.O.KOLACHERRY * 2. ADICHERRYKANDY LAKSHMI, D/O.LATE KELU MANIYANI, MANJU NIVAS, NEAR CRC KOLACHERRY AMSOM, PERUMACHERRY DESOM, P.O.KOLACHERRY. * (DIED. ADDL.R3 TO R6 IMPLEADED) BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.SHEJI P.ABRAHAM RESPONDENT(S)/ RESPONDENTS/DEFENDANTS: ----------------------------------------------------- 1. NAKOTH NAYARANI, W/O.GOPALAN MASTER, RESIDING NEAR CRC, P.O.KOLACHERRY, KANNUR TALUK 2. N.V.SURENDRAN, S/O.GOPALAN MASTER, RESIDING NEAR CRC, P.O.KOLACHERRY, KANNUR TALUK * 2ND APPELLANT DIED. ADDL.R3 TO R6 ARE IMPLEADED AS LR'S OF DECEASED 2ND APPELLANT AS PER ORDER DT. 1/7/08 ON IA.708/08 R3 VIJAYALAKSHMI.A.K. D/O.LAKSHMI, AGED 48 YEARS, ADICHERIKANDY HOUSE, NEAR CRC, PERUMACHERRY, P.O.KOLACHERRY, KANNUR DISTRICT ** R4 MOHANAN.A.K., S/O.LAKSHMI, RESIDING AT -DO- R5 PRADEEPAN, S/O.LAKSHMI, -DO- -DO- R6 KOMALAM, D/O.LAKSHMI -DO- -DO- ** ADDL.R4 DIED. IT IS RECORDED THAT R3, 5 AND 6 ARE LEVAL HEIRS OF DECEASED ADDL.4TH RESPONDENT AS PER ORDER DT.17/6/09 ON MEMO DF NO.2912/09 DT. 11/6/09 ADV. SRI.M.RAMESH CHANDER FOR R1 & 2 SRI.M.S.MANIKANDAN SRI.V.RAMKUMAR NAMBIAR FOR R1 & R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A.NO.49 OF 1995 ------------------------------------------ Dated 28th January 2010 JUDGMENT Appellants are the plaintiffs and respondents, the defendants in O.S.353/1991 on the file of Munsiff court, Kannur. Suit was originally filed for a permanent prohibitory injunction. After the Commissioner submitted Ext.C1 report and Ext.C2 plan identifying plaint schedule property as plot ABCD and in view of the dispute with regard to plot AOPD, the plaint was amended seeking a decree for recovery of possession of the said plot which is added by amendment as item No.2 of plaint schedule property, on the strength of their title. Item No.1 of plaint schedule property which was originally Sa 49/95 2 plaint schedule property, is having an extent of 1 acre 95 cents in survey No.1/1 of Kolacherry village of Taliparamba Taluk. Item No.2 of plaint schedule property is the western portion of that property, which is marked as plot AOPD in Ext.C2 plan submitted by the Commissioner. Appellants claimed title to item No.1 of the plaint schedule property contending that the said property was originally obtained by their mother Parvathi under Ext.A1 kuzhikanam deed dated 8/4/1960 and while the mother has been in possession, under Ext.A2 gift deed dated 10/8/1962 property was gifted to the appellants and subsequently there was an oral partition in between them whereunder the northern half of the property was allotted to the share of second appellant and southern half to the first appellant. It is also contended Sa 49/95 3 that out of the property allotted to first appellant he has sold 45 cents of the property being the south eastern corner to one Kannan Nair. Appellants would contend that though their mother Parvathi obtained 2 acres 40 cents under Ext.A1, by mistake the extent was shown as 2.04 cents and that mistake was carried out in Ext.A2 gift deed also and in fact the mother had obtained 2 acres 40 cents and appellants also obtained the very same property from the mother and therefore they have title to item No.1 of the plaint schedule property. Appellants would contend that for preventing soil erosion, as the property was slopping towards west, boulder stone wall was constructed along OP line marked in Ext.C2 plan and it is not a boundary wall demarcating the the properties and they have been in absolute Sa 49/95 4 possession and enjoyment of the entire property and respondents trespassed into item No.2 of the plaint schedule property and therefore, they are entitled to recovery of possession of item No.2 of the plaint schedule property. Respondents in their written statement disputed the plaint claim and contended that the mother of the appellants and appellants did not obtain 2 acres 40 cents as claimed and after obtaining the property, their mother had put up definite boundary on all sides namely, mud walls on the remaining three sides and boulder stone wall on the western boundary and their mother had no property to the west the boulder stone compound wall and appellants are not entitled to the decree in respect of item No.2 of the plaint schedule property. Additional written statement Sa 49/95 5 was subsequently filed contending that item No.2 of the plaint schedule property does not belong to the appellants and the first respondent and her predecessors have been in possession of area to the south of EF line which is extended upto OP line and therefore, appellants are not entitled to the decree for recovery of possession of item No.2 of the plaint schedule property. It is also contended that even if appellants have title to the property, it is lost by adverse possession and limitation. 2. Learned Munsiff framed necessary issues. On the evidence of the first appellant as PW1 and second respondent as DW1 and a witness as DW2 and Exts.A1 to A9 on the side of the appellants and Exts.B1 to B14 on the side of respondents and Exts.C1 and C2, learned Sa 49/95 6 Munsiff dismissed the suit finding that appellants have no title to item No.2 of plaint schedule property and appellants and their mother have not been in possession of any property to the west of the western boulder stone wall of their property and even if appellants have title, it is lost by adverse possession and limitation. Appellants challenged that judgment before Sub court, Thalassery in A.S.93/1993. Learned Sub Judge after re-appreciation of evidence, dismissed the appeal. Second appeal is filed challenging the judgment. 3. Second appeal was admitted on the following substantial question of law formulated. 1) Did the courts below err in properly appreciating the title deeds of the plaintiffs and Sa 49/95 7 defendants? 2) Did the courts below err in not taking into account the fact that defendants predecessors assigned the property having an extent of 1.58 acres, whereas they are entitled to only 1.10 acres? 3) Are the courts below correct in finding that the western boundary of the suit property is the boulder stone wall, when the Commissioner with reference to the measurements shown in the title deed, found that AD line in Ext.C2 is the western boundary of the property. 4) When there is a dispute between measurements and extent which would prevail. 3. Learned counsel appearing for the appellants and respondents were heard. 4. Though suit was originally one for injunction, after amendment of the plaint the Sa 49/95 8 suit was converted into one for recovery of possession of item No.2 of the plaint schedule property on the strength of their title. Item No.2 of the plaint schedule property is described in the plaint as plot AOPD in Ext.C2 plan. Appellants are claiming title to that property, contending that plot ABCD is the property obtained by their mother under Ext.A1, which was subsequently gifted to the appellants under Ext.A2 gift deed. Respondents would contend that the disputed property namely, item No.2 of the plaint schedule property does not form part of the property obtained by the mother under Ext.A1 or gifted to the appellants under Ext.A2 and therefore, they have no title to the property. Respondents would also contend that the said property forms part of the property obtained by their predecessor, Sa 49/95 9 Padmini under Ext.A5, their family partition deed and subsequently she obtained Ext.B9 purchase certificate in respect of said property and under Ext.B6 assignment deed property was transferred to first respondent and hence she has title and possession of the property. It is also contended that even if, it is found that item No.2 of the plaint schedule property belongs to the appellants, their title has been lost by adverse possession and limitation. It is also contended that the western boundary of the property admittedly in the possession of the appellants is the boulder stone wall was constructed by the mother prior to Ext.A2 gift deed and to the west of that boulder stone wall neither the mother nor the children have any possession and therefore, even if to the west of the Sa 49/95 10 boulder stone wall mother of appellants have property and by her gift deed the children obtained any property to the west of western boulder stone wall, that right and title was lost by adverse possession and limitation. 5. Question for consideration is whether plot AOPD namely, item No.2 of the plaint schedule property, forms part of the property obtained by Parvathi, the mother of the appellants from the jenmi Illam under Ext.A1 and subsequently gifted to the appellants under Ext.A2. Unfortunately, neither the trial court nor the first appellate court considered this relevant question in the proper perspective. The dispute could have been settled only on a proper identification of the property covered by Exts.A1 and A2. 6. What was found by the courts below Sa 49/95 11 is that there is a boulder stone wall constructed by the lessee under Ext.A1 and that is the physical boundary of the property obtained under Ext.A1 and therefore, appellants have no title to the property to the west of the boulder stone wall. At the same time, there is also a finding that title of the appellants over the property is barred by adverse possession and limitation. Both the findings cannot go together. Question of loss of title by adverse possession would arise only if appellants have title to the property. If they have no title to the property, there is no question of its loss by adverse possession. Therefore, the first question to be decided is whether appellants have title to item No.2 of plaint schedule property. 7. Even in the plaint, ppellants Sa 49/95 12 contended that the extent of the property shown in Exts.A1 and A2 is not correct and instead of 2.40 cents covered by the document the extent was mistakenly shown as 2 acres 4 cents. Ext.C1 report and C2 plan, show that appellants are admittedly in undisputed possession of 2 acres 17 cents, to the east of the western boulder stone wall on the OP line. Therefore, it cannot be disputed that the extent of the property shown in Exts.A1 and A2 is not correct. Hence based on the extent shown in Exts.A1 and A2, the property cannot be fixed. 8. Appellants would contend that the property can be fixed only with reference to the side measurements and when there is dispute with regard to the identification of the property consequent to the discrepancies in the extent and side measurements, site Sa 49/95 13 measurements should prevail and therefore, the property is to be identified as plot ABCD as done by the Commissioner. This aspect was not considered by both the courts below. 9. Though reliance was placed on the decision of this court in Savithri Ammal v. Padmavathi Amma (1990 (1) KLT 187), that decision is not an authority to canvass the position that when there is dispute with regard to the identity of the property, side measurements shown in the documents should always prevail. As held by the Division Bench therein, the proper test to be applied is which is most unlikely to be vitiated by error. If it is the boundary, it will prevail. If it is the side measurements, it will prevail. If it is the extent, it will prevail. There is no inflexible rule or infallible Sa 49/95 14 guiding principle. It is for the court to consider the question and decide which is the most unlikely, to be vitiated by error. 10. If the property is to be fixed with reference to the side measurements and plot ABCD is the property covered by Ext.A1, then the property extents further to the west of the western water channel. Paragraph 4 of the plaint itself unambiguously asserts that the property covered by Exts.A1 and A2 is upto the western water channel. Therefore, even according to the appellants, the property covered by Exts.A1 should lie to the east of the western water channel. Ext.A2 shows that western boundary is “neerozhukkumchala parambu” which means “property having water channel”. If that be correct, western property should be the property having water channel leaving at Sa 49/95 15 least a strip of land to the west of the boulder stone wall. At the same time the western boundary, shown in Ext.A1 is water channel (Neerozhukkum chalu). If that be so, the western boundary should be the water channel as contended by the appellants in their plaint. In any case, the property covered by Exts.A1 and A2, if fixed with reference to the boundaries, will be to the west of the eastern boundary of the water channel. If property is fixed with reference to the side measurements, as has been done by the Commissioner, it extents further to the west of the water channel. It cannot be correct. Therefore, that is also an erroneous test and the property cannot be fixed with reference to the side measurements seen in Exts.A1 and A2. 11. Then the question is whether Sa 49/95 16 boundary is to be fixed with reference the western boundary as water channel as shown in Ext.A1 or to its further east as shown in Ext.A2. 12. Learned counsel appearing for the appellants and respondents submitted that question may be directed to be decided by the trial court, as this aspect was not considered by the courts below. If it is found that the property covered under Exts.A1 and A2 extents upto the eastern boundary of the water channel, portion of item No.2 of the plaint schedule property, which lies to the east of water channel and west of boulder stone wall would form part of the property covered under Exts.A1 and A2. In that case, appellants would have title to that property. On the other hand, if it is to be found that the property covered Sa 49/95 17 under Ext.A1 should be further to the east of the water channel, the isputed portion of the property, which lies to the west of boulder stone wall and to the east of the eastern boundary of the water channel will not form part of the property covered by Ext.A1. If the property covered by Exts.A1 and A2 extend upto the western chal a question would arise, whether title of the appellants over that property has been lost by adverse possession, as contended by the respondents. As this aspect was not considered by the courts below, it is necessary to set aside the judgments of the courts below and to remand the suit back to the trial court for fresh disposal in accordance with law. Appeal is allowed. Decree and judgment in O.S.353/1991 on the file of Munsiff court, Sa 49/95 18 Kannur, as confirmed by Sub court, Thalassery in A.S.93/1993 is set aside. O.S.353/1991 is remanded to Munsiff court, Kannur for fresh disposal. Learned Munsiff must decide whether the plaintiffs have title to plot AOPD. This question could be settled only on deciding what is the property covered by Exts.A1 and A2. That question in turn could only be settled, by fixing the western boundary of the said property, with reference to title deeds Exts.A1 and A2. If it is found that the disputed property falls within the property covered by Exts.A1 and A2 and therefore, appellants have title to the entire item No.2 of the plaint schedule property or portion of said property, learned Munsiff shall decide whether that title has been lost by adverse possession and limitation. If warranted, Sa 49/95 19 Munsiff may permit the parties to adduce further evidence. Parties are directed to appear before the Munsiff on 24/2/2010. Parties to bear their respective cost. M.SASIDHARAN NAMBIAR, JUDGE. uj.