IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 RSA.No. 801 of 2004(D) -------------------------------------- AS.61/1995 of I ADDL.SUB COURT, TRIVANDRUM OS.1699/1986 of II ADDL.M.C., TRIVANDRUM .................... APPELLANT/RESPONDENT/DEFENDANT: MRS.SAMARAJ, W/O.SAMARAJ, RANI NIVAS, CHEMPAKAMOODU, PEROORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.P.A.AHAMMED SRI.M.SREEKUMAR SRI.THOUFEEK AHAMED SRI.A.AHZAR RESPONDENTS/APPELLANTS/PLAINTIFFS: 1. RAVEENDRAN, S/O.VELAYUDHAN, VATTAVILAKATHU VEEDU, CHEMPAKAMOODU, PEROORKADA, THIRUVANANTHAPURAM. 2. SANTHAKUMARI, D/O.NARAYANI, VATTAVILAKATHU VEEDU, CHEMPAKAMOODU, PEROORKADA, THIRUVANANTHAPURAM. ADV. SRI.G.S.REGHUNATH FOR R1&R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.801 of 2004 -------------------------------------- JUDGMENT Defendant in O.S.No.1699/1986 on the file of Additional Munsiff's Court, Thiruvananthapuram is the appellant. Plaintiffs are the respondents. The suit was instituted for declaration of title and fixation of boundary. Respondent claimed title to the plaint schedule property under Exhibit A1 sale deed executed by the son of Karthyayani, who obtained the right under Exhibit A5 settlement deed. Appellant is in possession of the property to its north, obtained under Exhibit B1 sale deed from Sreedharan, who also obtained the right under the very same settlement deed. Respondents would contend that there is no fixed boundary to separate the property of the appellant which lies to the north of their property and therefore, the boundary is to be fixed and their title to the plaint schedule property is to be declared. Appellant resisted the suit contending that there is a well defined boundary separating his property with the property of the respondents and respondents have no right over any portion of the property in their possession. RSA 801/04 2 2. Learned Munsiff, on the evidence of PWs 1 and 2, DWs 1 to 3 and Exhibits A1 to A4, B1 and C1 and C1(a), granted a decree declaring the title of the appellant and fixing the boundary. Based on Exhibit C1(a) plan, MQ was fixed the boundary line. Respondents challenged the judgment and decree before Additional Sub Court, Thiruvananthapuram in A.S.No. 61/1995. Learned Additional Sub Judge, on re-appreciation of evidence, found that MQ cannot be the demarcating boundary and the demarcating boundary could only be MP line and modified the decree to that extent. This appeal is filed challenging the said judgment and decree. 3. Notice was issued to the respondents before admission. Records were also called for. 4. Learned counsel appearing for the appellant and respondents were heard. 5. Argument of the learned counsel appearing for the appellant is that parties let in evidence before Exhibit C1 report and Exhibit C1(a) plan were submitted and the original report and plan were set aside and a new Commissioner was appointed and learned Munsiff granted the decree with reference to Exhibit RSA 801/04 3 C1(a) plan. It is submitted that appellant did not get opportunity to cross-examine the Commissioner and hence, the case is to be remanded. Learned counsel also argued that when side measurements of the property is given in Exhibit A1 sale deed, properties are to be fixed with reference to the side measurements and if so, plot KLMQ can only be the plaint schedule property and not KLMPQ, as found by the first appellate court. Argument is that when there is side measurements, property is to be fixed with reference to the side measurements and not with reference to the extent. 6. Learned counsel appearing for the respondents pointed out that it was under Exhibit A5, properties were divided and allotted separately to Karthyayani, Sreedharan and Sarasa. Exhibit A5 shows that when plot A, having an extent of 11¾ cents, was allotted to Karthyayani, plot B and plot C, having an extent of 11 5/8 cents each, were respectively allotted to Sreedharan and Sarasa. Southern most plot C was allotted to Sarasa and northern most plot B was allotted to Sreedharan and plot A, which lies in between, was allotted to Karthyayani. If plot KLMQ is taken as the property covered by Exhibit A1, the extent RSA 801/04 4 is only 8.871 cents and the residential house, which exists in plot QMP, would be outside that plot and therefore, as rightly found by the first appellate court, MPQ can only be the boundary separating the two properties. It was also pointed out that the extent of the property as found by the courts below now tallies with the extent shown in Exhibit A5. 7. Admittedly, it was under Exhibit A5 document, the predecessor in interest of the appellant as well as respondents obtained the right. A reading of Exhibits A5, A1 and B1 establish that out of 88 cents, the northern thirteen cents was excluded and thirty five cents to its south was divided into three plots. Southern plot C was allotted to Sarasa and northern plot B was allotted to Sreedharan. Plot A allotted to Karthyayani lies in between the two plots. On these aspects, there is no dispute. 8. Extent of plot A is 11¾ cents and that of plots B and C are 11 5/8 cents each. True, properties are to be fixed, as far as possible, with reference to the side measurements, when side measurements are available. Exhibit C1 report with Exhibit C1 (a) plan establish that if the property is fixed with reference to the side measurements shown in Exhibit A1, the plot could be RSA 801/04 5 only plot KLMQ. At the same time, if plot B, the property covered by Exhibit B1, is to be fixed with reference to the side measurements, it cannot be plot NOQM, which should be the plot, if plot KLMQ is taken as the property covered by Exhibit A1. It is, therefore, absolutely clear that properties cannot be fixed with reference to the side measurements and there is mistake in the side measurements. If that be so, the other guide is the extent. As stated earlier, it was thirty five cents which was divided under Exhibit A5, leaving the northern thirteen cents, into three plots. Plot B is 11¾ cents and the other two plots are 11 5/8 cents each. If plot KLMQ is taken as the property covered by Exhibit A1, the extent is only 8.871 cents. If that be so, the property covered by Exhibit B1 would be 14.579 cents, which cannot be the case at all. Moreover, if property is to be fixed with reference to the side measurements shown in Exhibits A1 and A5, plot A can only be a plot like NOQM, which cannot be correct. In such circumstances, finding of the first appellate court that plot KLMQ cannot be the plot covered by Exhibit A1 and the property would take in plot QMP also is perfectly correct. It is more clear from the fact that the house situated in RSA 801/04 6 the property obtained by the respondents under Exhibit A1, marked No.1 in C1(a) plan, is standing in a portion of plot QMP also. In such circumstances, on a proper appreciation of evidence, I find no error in the finding of the first appellate court that MP is the demarcating line between the property of the appellant and respondents. If MP is the demarcating line and plot KLMQ is the property covered by Exhibit A1, the total extent would be 11.762 cents. If that be so, plot NOPM is the property covered by Exhibit B1 and its extent is 11.688 cents. It tallies with the measurements shown in Exhibit A5. In such circumstances, I find no substantial question of law involved in the appeal. I do not find any circumstance warranting a remand as sought for. Appeal is dismissed. No cost. 17th February, 2011 (M.Sasidharan Nambiar, Judge) tkv