IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 AS.No. 289 of 2002 --------------------------- (OS.NO.742/1995 OF PRINCIPAL SUB COURT,THRISSUR) .................... APPELLANTS/DEFENDANTS: ----------------------------------------- 1. SUBRAMANIAN, GOVT.SERVANT, H/O. KAMALAKSHY & D/O. KOTTAYIL CHATHU, CHIYYARAM VILLAGE DESOM, THRISSUR TALUK. 2. KAMALAKSHY, PEARLESS AGENT, D/O. KOTTAYIL CHATHU, -DO-. BY ADV. SRI.P.V.CHANDRA MOHAN. RESPONDENT/PLAINTIFF: -------------------------------------- MARGARAT @ MARGALEETHA, D/O. KONIKKARA VARUNNY & W/O. KATTUKARAN POLY, CHIYYARAM DESOM, CHIYYARAM VILLAGE,THRISSUR TALUK. BY ADVS. SRI.P.VIJAYA BHANU, SRI.M.GEORGE THOMAS. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO. 289/2002: ORDER ON C.M.P. NO. 2854/2002 & I.A. NO. 341/2007 IN A.S. NO.289/2002-D DISMISSED 22/09/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 289 OF 2002 = = = = = = = = = = = = = = = Dated this the 22nd day of September, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thrissur in O.S.742/95. The suit originally filed was one for permanent prohibitory injunction which has been amended later to include prayer for mandatory injunction. The brief facts necessary for the disposal of the appeal are stated as follows. The property described as item No.1 of the plaint schedule property was obtained by the plaintiff as per the document No.3572 of 1960 and item No.2 by virtue of document No.3363 of 1973. She had constructed a house and is residing therein. The predecessor-in-interest of the plaintiff namely Rappayi had obtained the A.S. 289 OF 2002 -2- property under a partition deed of 1951 as per which the said Rappayi was entitled to use the eastern extremity of item No.2 of A schedule in the said document as a pathway and by virtue of the assignment the plaintiff is entitled to use the same. Therefore the plaintiff prays for a decree. The defendants on the other hand would contend the plaintiff does not have any right over the property to claim a pathway and that the pathway mentioned is not properly identifiable. Therefore the plaintiff is not entitled to any relief. The trial court on appreciation of the materials granted a decree in favour of the plaintiff and it is against that decision the defendants have come up in appeal. 2. Heard the learned counsel for the appellants as well as respondent. Now the crux A.S. 289 OF 2002 -3- of the case depends upon the understanding and location of a way mentioned in Ext.A3 document. Under Ext.A3 there are three schedules of property. We are concerned with item No.1 and 2 in A schedule and item No.1 in C schedule. It is the portion in item No.1 of the C schedule that is purchased by the plaintiff and the plaintiff is claiming as per the recitals in partition deed Ext.A3. As per Ext.A3 partition deed of the year 1951 C schedule had been set apart to one Rappayi and item No.1 of C schedule is 70 cents. Items 1 and 2 in A schedule is set apart to Vareed, the first executant under whom the present defendant has claimed a portion of the property. It is specifically stated in Ext.A3 document that Rappayi who is allotted C schedule is entitled to use pathway having a length of 65/8 dhennu and width of 1 dhennu A.S. 289 OF 2002 -4- through the eastern extremity of item No.2 of Ext.A3. So a right of passage admittedly has to be reserved in favour of Rappayi or his successors in interest. The learned counsel for the appellant would contend the Commissioner had not properly identified the property and therefore a decree cannot be granted. He would submit before me that the Commissioner has not complied with the orders of the trial court in I.A.5694/99 and therefore the report cannot be accepted. As per the order in the above I.A. the Court set aside the previous Commissioner's plan and report and directed the Commissioner to identify, demarcate the survey boundary between document No.399/1 and 400/1. The Court also directed while doing the work under point No.1 the surveyor will render a detailed report as to how he cross checked the eastern boundary line A.S. 289 OF 2002 -5- of Sy.No.400/1 and thereafter identify the property in item Nos.1 and 2 under Ext.A1. Then the Commissioner is directed to demarcate the pathway. 3. Now the difficulty one will find in the matter is the properties above mentioned is described as comprised in Sy.No.399/01 it is seen that all these items a portion at least is included in Sy.No.400/1. As per the Commissioner's report the entire item No.1 of A schedule in Ext.A3 is in 400/1 and a portion of item No.2 and 1 of C schedule are also in 400/1 but so far as it relates to the major portion item No.2 of A schedule and item No.1 of C schedule are comprised in 399/1. It is also seen some portion involved in item No.2 of Ext.A1 is in 399/4. Learned counsel for the appellant would contend since the parties have A.S. 289 OF 2002 -6- not claimed right over any property comprised in Re.Sy.No.400/1 the identification of the Commissioner cannot be accepted. The Commissioner had given the way in which he has done the work. He had found out the demarcating survey boundary line between 399/1 and 400/1 and had also stated there are buildings in the line obstructing the eye sight. But he had clearly demarcated the same so far as it relates to the cross check measurement and identity of Exts.A1 and A2. Commissioner would clearly state in his report that he had taken into consideration the undisputed boundary on the eastern side of item No.1 of A schedule fixing the line and thereafter had identified item No.1 of the A schedule, item No.2 of the A schedule and C schedule. He had demarcated the property exactly in accordance with the measurements A.S. 289 OF 2002 -7- mentioned in the document. Further I had also perused the document to find out whether identification done by the Commissioner is correct or not. So far as item No.1 is concerned as stated by the Commissioner a clear crystal eastern boundary is found out, when it comes to item No.2 it can be seen that it is situated on the western side of item No.1. C schedule is just situated on the north of item No.2 of A schedule in Ext.A1. So the demarcation of items 1 and 2 of A schedule and item No.1 of C schedule are strictly done in accordance with the measurement. In fixing the survey line appropriately it is done with reference to the materials. Just because the document does not show the survey No. as 400/1 one cannot jump to the conclusion that the parties are not having any property as contended. As early as in 1957 A.S. 289 OF 2002 -8- this Court has held in Krishnan v. Mathai (1957 KLT 42) as follows. “The evidence supplied by boundaries, extent, survey numbers and lekhoms forms the determining factors when the identity of the property is put in issue. If all these factors harmonize there is little difficulty to identify the property in dispute. But when some of them are in conflict with the rest as when the extent and survey numbers do not agree with the boundaries usually the boundaries predominate and the rest is regarded as erroneous or inaccurate descriptions. This is not an inflexible rule and the guiding principle is to apply that test which is mot unlikely to be vitiated by error.” Applying the above dictum the only negative factor I find with respect to identification of A.S. 289 OF 2002 -9- the property is the survey number. The survey number shown in the document is 399/1 whereas the properties are comprised in 399/1 and 400/1. The Commissioner has taken special care by cross checking to fix the boundaries and then measured item No.2 of A schedule in Ext.A1 after fixing item 1 to Ext.A1. He had fixed item No.2 in A schedule of Ext.A3 as lying on the western side and had also fixed the C schedule item No.1 which according to the boundaries lie on the north of item 2 of A schedule in Ext.A1. So there is a clear cut proper demarcation of the property in accordance with the measurements, boundaries and descriptions and therefore non inclusion of a survey number alone cannot militate against the case of the parties. Therefore I find that the learned Subordinate Judge was perfectly right in accepting the A.S. 289 OF 2002 -10- Commissioner's plan and report and in passing a judgment and decree in favour of the plaintiff. Therefore it is confirmed and the appeal is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 289 OF 2002 -11- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 289 OF 2002 = = = = = = = = = = = J U D G M E N T 22nd September, 2010.