IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 RSA.No. 649 of 2008() --------------------- A.S.NO.59/2007 ON THE FILE OF THE SUB COURT, PERUMBAVOOR O.S.NO.464/1996 ON THE FILE OF THE MUNSIFF'S COURT, PERUMBAVOOR APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- KURIAKOSE, AGED 58 YEARS, S/O CHUMMAR, OORAKKADAN HOUSE, NEDUNGAPRA KARA, VENGOOR VILLAGE. BY ADV. SRI.V.J.JOSEPH RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------------------------------------------------- 1. GEEVARGHESE, AGED 60 YEARS, S/O CHUMMAR, OORAKKADAN HOUSE, NEDUNGAPRA KARA, VENGOOR VILLAGE. 2. ELDHOSE, AGED 29 YEARS, S/O GEEVARGHESE, OORAKKADAN HOUSE, NEDUNGAPRAKARA, VENGOOR VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No. 649 of 2008 = = = = = = = = = = = = = = Dated this the 1 st day of December, 2008 JUDGMENT The plaintiff in O.S.No.464 of 1996 on the file of the Munsiff's Court, Perumbavoor is the appellant in this second appeal. The said suit was one for declaration of title of plaint A Schedule Property admeasuring 49.675 cents comprised in Re- survey No.79/5 of Vengoor Village and for injunction restraining the defendants from trespassing into the plaint A Schedule Property. The plaint B Schedule Property admeasuring 3 cents comprised in Re-survey No.79/1 was stated to be the property of the defendants. 2. The plaintiff Kuriakose and the 1st defendant Gee Varghese are the sons of Chummar who died in the year 1969. The 2nd defendant Eldhose is the son of the 1st defendant. On the death of Chummar his widow and children entered into Ext.A2 family settlement dated 22.7.1979. Subsequently they executed Ext.A1 partition deed dated 13.3.81 as per which the plaintiff has been allotted 51 cents in old survey No.90/30 and the 1st R.S.A.No.649 of 2008 2 defendant has been allotted 4 cents in the same old survey No.90/30. In the property allotted to the 1st defendant there is a rice mill shown as item No.3 in Exts.C3(a) plan prepared by the Advocate Commissioner. He has allegedly constructed a compound wall on the southern and eastern side of the rice mill. The Advocate Commissioner, who was deputed by the trial court, prepared Ext.C3(a) plan in accordance with the re-survey plan. As per the said plan the plaintiff is found in possession of 49.675 cents in Re-survey No.79/5 comprised in old Survey Nos. 77/1B, IC and 90/30. The Commissioner also found that the plaintiff is in possession of a triangular piece of land outside the western boundary wall of the 1st defendant's rice mill having a total extent of 400 square links comprised in Re-survey No.79/1. This 400 square links along with 49.275 cents comprised in Re-survey No.79/5 would make the total extent of the property in the possession of the plaintiff as 49.675 cents. In the absence of a counter claim by the 1st defendant the plaintiff is entitled to retain the said 400 square links comprised in Re-survey No.79/41 although it is not the part of the property allotted to him under Ext.A1. With regard to the property allotted to him R.S.A.No.649 of 2008 3 under Ext.A1 partition as against 51 cents he is in possession of only 49.275 cents in Re-survey No.79/5 and 400 square links in R.S.No.79/1. Now coming to the case of the 1st defendant as against 4 cents allotted to him under Ext.A1 partition, he is actually found in possession of only 3 cents within the compound wall. That is 2.600 cents comprised in R.S.No.79/1 which is the site occupied by the rice mill and 400 square links comprised in Re-survey No.79/5 which is the vacant land to the south of the rice mill but inside the compound wall. The resultant position is that both the plaintiff as well as the 1st defendant are in possession of portion of properties comprised in Re-survey No.79/1 and 79/5. While the old survey number corresponding to Re-survey No.79/1 is 90/30, Re-survey No.79/5 also takes in old Survey No.77/IB and IC. When the properties now found in the actual possession of the respective sharers are lesser in extent, they cannot insist on any property over and above the said extent either by recourse to Ext.A1 partition deed or by recourse to the earlier Ext.A2 family settlement. The plaintiff, who is thus now in possession of 49.675 cents, though not as described in the A Schedule, was R.S.A.No.649 of 2008 4 therefore held not entitled to the declaration and injunction prayed for by him. It is however, made clear that the plaintiff, who is found in possession of the 49.275 cents in Re-survey No.79/5 and the 400 square links in Resurvey No.79/1, is entitled to keep possession of the same, since the said properties are outside the compound wall constructed by the 1st defendant on the southern and western side of the rice mill. Clarifying this position, this second appeal is dismissed. Dated this the 1 st day of December, 2008. V. RAMKUMAR, JUDGE sj