IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 RSA.No. 527 of 2009() --------------------- AS.319/2004 of DISTRICT COURT,KOZHIKODE OS.446/1999 of ADDL.MUNSIFF COURT.,KOZHIKODE-I .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------ 1. KALATHIL VALIYAPARAMBATH VASUDEVAN NAIR, S/O.KUNHAMMA AMMA, RESIDING AT "SAROJ DEV", NEDUNGOTTOOR AMSOM DESOM, KOZHIKODE TALUK. 2. GEETHA, D/O.VASUDEVAN NAIR, RESIDING AT "SAROJ DEV", NEDUNGOTTOOR AMSOM DESOM, KOZHIKODE TALUK. 3. ANIL KUMAR, S/O.VASUDEVAN NAIR, RESIDING AT "SAROJ DEV", NEDUNGOTTOOR AMSOM DESOM, KOZHIKODE TALUK. 4. SUNIL KUMAR, S/O.VASUDEVAN NAIR, RESIDING AT "SAROJ DEV", NEDUNGOTTOOR AMSOM DESOM, KOZHIKODE TALUK. 5. SUDHEER KUMAR, S/O.VASUDEVAN NAIR, RESIDING AT "SAROJ DEV", NEDUNGOTTOOR AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.M.PADMANABHAN SRI.P.A.HARISH SMT.SANIKA.V.S. RESPONDENT/RESPONDENT/DEFENDANT: ------------------------------------ T.BABY, W/O.RAJAN, RESIDING AT 'MOOSAN VEEDU, CHEVAYOOR AMSOM DESOM, MALAPARAMBA HOUSING COLONY, KOZHIKODE. ADV. SRI.R.BINDU (SASTHAMANGALAM) FOR R1 SRI.PRASANTH M.P FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.527 of 2009 --------------------------------------- Dated this 12th day of January, 2010 JUDGMENT The second appeal arises from judgment and decree of learned District Judge, Kozhikode in A.S.No.319 of 2004 confirming judgment and decree of learned Munsiff-I, Kozhikode in O.S.No.446 of 1999. Appellant sued the respondent for a declaration regarding measurement and survey number of the plaint A schedule property, fixation of its boundary with the property of the respondent and for decree of prohibitory injunction. According to the appellants, appellant No.1 purchased plaint A schedule from Pallippatt Narayanan Nair as per Ext.A1, assignment deed No.1286 of 1971 and constructed house therein. They also purchased the Karaima right of Sarada in the property covered by Ext.A1 as per Ext.A2, assignment deed. The assignor, Narayanan Nair had assigned 20 cents on the north of plaint A schedule to one Gabriel as per document No.1446 of 1968. Legal heirs of said Gabriel gifted the property to one Antony and Thressia as per document No.155 of 1972 copy of which is Ext.A3. They filed O.S.No.945 of 1993 claiming right of easement through the plaint A schedule and pending that suit they executed Ext.A3, assignment deed No.534 of 1998 in favour of the respondent. According to the appellants, Ext.A3 contained false descriptions with the mischievous intention of including portion of plaint A schedule also in plaint B R.S.A.No.527 of 2009 2 schedule. Appellant filed O.S.No.720 of 1997 for fixation of boundary and declaration of title. But when the Advocate Commissioner measured the property, it was found that measurement of tak No.1 of plaint A schedule is 18x7 koles (6 feet koles) and that of tak No.2 is 15½x6 koles (6 feet koles). According to the appellants, measurement of tak No.1 is 18x10 koles (6 feet koles)and by mistake the measurement of tak No.1 was stated as 18x7 koles (6 feet koles) in Ext.A1. So also the resurvey number of tak No.1 is mistakenly shown in Ext.A1. At present, no physical boundary exists on the northern side of the property belonging to the appellants. Hence the suit. Respondent contended that measurements given in the plaint schedule are not correct and that the allegation that fraudulent descriptions are made in Ext.B1 is also not correct. He purchased plaint B schedule as per Ext.A3 document No.534 of 1998 when that property had well defined boundaries. There was a bamboo fencing on the southern side of plaint B schedule which was removed by the appellants. Trial court found that case of the appellants that there is mistake in the description of tak No.1 of the A schedule in Ext.A1 is not correct and consequently dismissed the suit. That was confirmed by the first appellate court. Hence the second appeal urging by way of substantial question of law whether in a suit for fixation of boundary it is immaterial to take into consideration the title of appellants as well as R.S.A.No.527 of 2009 3 the respondent especially if the properties were at one point of time in the possession of a common vendor, and what is the effect of a finding by a competent court that one of the parties to the suit is having title and possession of only a certain extend of land? Learned counsel for appellants contends that the land excluding what was assigned to Gabriel as per document No.1446 of 1968 has been acquired by the appellants as per Exts.A1 and A2 which fact was not taken into consideration by the courts below. It is also contended that finding of the trial court as confirmed by the first appellate court that there is physical boundary between the properties is not sustainable. 2. This being a suit for declaration of title, fixation of boundary and injunction. It is the duty of appellants to prove their title and possession over the disputed property. It has been held in Bapputty (a) Sydali & Ors. Vs. Cheriakutty (a) Veerankhani Rawther (1990 (1) KLJ 218, para 6) and Anjil Vellachi & Ors. Vs. Mamuni Bhaskaran (a) Vattayil Bhaskaran (2009(3) KHC 728) that relief of fixation of boundary can be granted only after settling all other disputes and that fixation of boundary cannot be taken as a means to overreach property in the possession of the opposite party. Hence, having not prayed for any recovery of possession of the property appellants have to show that they have title and possession of the property in respect of which relief is claimed. R.S.A.No.527 of 2009 4 3. The entitlement of appellants in respect of the suit property is as per Exts.A1 and A2. Ext.A1 takes in the property covered by Ext.A2 also. It is not disputed that these properties originally belonged to Pallippatt Narayanan Nair. It is also not disputed that the property belonging to the appellants is known as Mele Thacheri Palla Parambu while property of respondent is known as Thacheri Paramba. In Ext.A1, measurement of the first tak of plaint A schedule which alone is disputed in this case is given as 18x7 koles (6 feet koles) while the present claim of appellant is that their entitlement is in respect of an area covered by 18x10 koles (6 feet koles). It is pertinent to note that Ext.A1 is of the year 1971 and a claim in that regard came only in the year 1991 when appellants were not satisfied about the description in Ext.A1. It is also relevant to note that it is not merely kole measurement that is given in Ext.A1 but, the meter measurements are also given. As per that meter measurement of tak No.1 is 32.92x12.80 meters which corresponds to 18x7 koles (6 feet koles). It is also found that as per Ext.A1, tak No.1 comes in survey No.830 and 831 but according to the appellants, the correct resurvey Number is 865 and 870 part. There is however no evidence on record to show that appellants have any right in the property comprised in resurvey No.865 and 870 part. Advocate Commissioner in O.S.No.720 of 1997 measured the suit properties and found that the measurement of tak R.S.A.No.527 of 2009 5 No.1 is only 18x7 koles (6 feet Koles) exactly as stated in Ext.A1. Ext.B1 is the copy of the plaint in O.S.No.720 of 1997 filed by the appellants. There also the measurement of the first tak of plaint A schedule is given as 18x7 koles (6 feet koles). The claim of appellants is that while Antony executed Ext.A3 in favour of respondent false descriptions were made. Antony filed O.S.No.945 of 1993 against the appellants though in respect of the alleged right of easement. Ext.B3 (a) and (b) are copy of report and plan prepared by DW3. DW3 has found that DC line in Ext.B3(b) is the survey boundary between the properties of appellants and respondent. In evidence he stated that there were clear physical boundaries for the respective properties of appellants and respondent. Learned counsel has a contention that DW3 had not stated so in Ext.B3(a). Appellant No.1 when examined as PW1 stated that respondent has more extent than to which he is entitled as per Ext.A3. Exts.C1 and C2 series show survey demarcation between RS Nos.865 (resurvey number of the appellants) and RS 870 of the respondent. There is no evidence to show that appellants owned any land in RS 870. It is on these evidence that the courts below found against the claim of the appellants regarding title and possession. The mere fact that respondent even if it is assumed so, is in possession of more extent than to which he is entitled does not mean, in the light of the description in Ext.A1 that such excess land R.S.A.No.527 of 2009 6 should go to the appellants. There is no case that there is any deficit in the extent of land belonging to the appellant than what is stated in Ext.A1. In the above circumstances the claim of appellants for declaration and fixation of boundary cannot stand. I do not find any substantial question of law involved in the appeal for its admission. THOMAS P JOSEPH, JUDGE Sbna/