IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 SA.No. 777 of 1999(A) --------------------- AS.50/1994 of SUB COURT,NEYYATTINKARA OS.10/1984 of PRL.M.C.,NEYYATTINKARA .................... APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------------------- MADHAVA PANICKER KARUNAKARAN RESIDING AT CHARUMKUZHI MEKKE PUTHEN VEEDU VELLARADA DESOM VELLARADA VILLAGE BY ADV. SRI.L.MOHANAN RESPONDENT(S): --------------- 1. RAGHAVAN RAVEENDRAN, RESIDING AT CHARUMKUZHI MEKKE PUTHEN VEEDU, VELLARADA DESOM VELLARADA VILLAGE AT PRESENT RESIDING AT RS SADANAM VELLARADA, VELLARADDA PO 2. LAKSHMIKUTTY SULOCHALA RESIDING AT --DO-- GP S DILEEP ADV. SRI.R.S.KALKURA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.777 of 1999 ------------------------------------- Dated this the 14th day of July 2011 Judgment The plaintiff, who was non-suited by both the courts below, is the appellant. The facts absolutely necessary for the disposal of this appeal are as follows : 2. The properties involved in this suit originally belonged to one Madhava Panicker. The plaintiff and the second defendant are the children of the said Madhava Panicker. The first defendant is the husband of the second defendant. The plaintiff relies on Ext.A2, which is styled as a partition deed by which he claims to have obtained 19¾ cents shown as D schedule property and his brother Raghuvaran obtained F schedule property, having an extent of 9.5 cents. The second defendant was granted C schedule property which had an extent of 8 cents. According to the plaintiff, the properties were lying as a compact plot and the defendants have trespassed into a SA 777/99 2 portion of the property which belongs to the plaintiff and put up a shed therein. The plaintiff wanted to put up a boundary, separating A and B schedule from C schedule property and to have his title and possession over A and B schedule properties declared. Hence the suit. 3. The defendants resisted the suit. They pointed out that the plaint schedule descriptions are not correct and that the second defendant is not a party to Ext.A2 partition deed. It is further pointed out that if at all Madhava Panicker wanted to execute a deed with reference to his property, that has to be done excluding the property covered by Ext.B1 document in favour of the first defendant. Madhava Panicker should not have included the property covered by Ext.B1 while the so called partition under Ext.A2 was in effect. Pointing out that the plaintiff has no manner of right over the plaint schedule property, they prayed for dismissal of the suit. SA 777/99 3 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants examined DW1 and had Exts.B1 to B5 marked. Exts.C1 to C4 commissioner's report and plan were also marked. 5. The trial court found that the measurements made by the commissioner do not tally with the measurements in the deeds produced by the plaintiff in support of his claim and also noticed that the plaint schedule properties also do not show the said measurements as contained in Ext.A2. The trial court found considerable variance with the site measurements and that the plaint description is not proper and accordingly dismissed the suit. 6. The plaintiff carried the matter in appeal as AS No.50 of 1994 before the Sub Court, Neyyattinkara. The lower appellate court concurred with the trial court. Hence the second appeal. SA 777/99 4 7. Notice is seen issued on the following questions of law raised in the second appeal : 1. Is it not illegal to deny the title of the plaintiff due to the fact that there are some discrepancies in the description of the property ? 2. Is it not illegal to non-suit the plaintiff due to the difference of links measurements in the documents and the commissioner's plan ? 3. Is it not incumbent upon the court to obtain a correct plan by remitting the same to the commissioner if the plan already submitted is found to be unacceptable. Is it not illegal to dismiss the suit instead ? 4. Is it not incumbent to accept the description found to be correct and to reject the descriptions found to be incorrect as falsa demonstratia while construing a document ? 8. The learned counsel for the appellant pointed out that the lower courts were not justified in dismissing the suit based on minor discrepancies in the site measurements noticed by the commissioner as that is bound to occur by passage of time. The learned counsel attempted to establish that by careful look at the site measurements, it can be seen that the differences are very insignificant and therefore, the dismissal of the suit was not proper. SA 777/99 5 9. The learned counsel for the contesting respondents pointed out that the very narrations of details in Exts.A2 and B1 are wrong for the simple reason that Ext.A2 was executed after Ext.B1. Obviously, Ext.A2 could have taken in only the property excluding the one covered by Ext.B1 in favour of the defendants. Surprisingly enough, the learned counsel pointed out that the property covered by Ext.B1 is included in Ext.A2 which is quite improper. Further, the measurements in the commissioner's report and plan do not tally with the measurements in Ext.A2. The courts below were, therefore, perfectly justified in coming to the conclusion that it is not possible to grant reliefs to the plaintiff. 10. There seems to be some force in the submission of the learned counsel for the respondents. Admittedly, Ext.B1 was executed prior to the execution of Ext.A2. Ext.B1 is dated 16.08.1988 whereby Madhava Panicker sold 7 cents in favour of the first defendant who is the husband of the 2nd defendant. It was thereafter that the SA 777/99 6 so called partition deed Ext.A2 was executed. There is considerable controversy between the parties as to whether it is a partition deed or a settlement deed. Be that as it may, it makes little difference in the facts and circumstances of this case. As rightly pointed out by the learned counsel for the respondents, it is seen that the seven cents assigned as per Ext.B1 is included in Ext.A2. That was obviously wrong. If at all the settlement or partition was to be effected of the properties, which was the self acquisitions of Madhava Panicker, it could have been done, only after excluding the property assigned as per Ext.B1. Further, Ext.A2 is styled as a partition deed. Even though the name of the second defendant is shown, she has not signed the document. What effect that could have, is a different question. However, inclusion of 7 cents assigned to the first defendant cannot be justified. That probably is the reason for the differences in the measurements made by the commissioner and the measurements shown in Ext.A2. The lower courts have SA 777/99 7 taken considerable pains to ascertain whether the plaint schedule property can be identified with reference to the measurements made by the commissioner and it was found that it was difficult to do so essentially because the property covered by Ext.B1 was included in Ext.A2. If, as a matter of fact, the properties covered by Ext.B1 is excluded, then obviously, the 8 cents could not have been set apart to the second defendant though she is not a signatory to this document. Further, one cent was given to the panchayat for construction of a radio quosk. The total extent of property was only 19¾ cents. Therefore, if one excludes the property assigned under Ext.B1, i.e., given to the first defendant and the panchayat, then the property available for partition is 11¾ cents. It was these facts which had persuaded the courts below to take note of the fact that the plaint schedule description is not correct and that the properties have not been properly identified. 11. Faced with the above situation, the learned counsel for the appellant submitted that the matter may be SA 777/99 8 remanded so as to enable the appellant to adduce further evidence and to have the property properly identified. 12. The above prayer may appear to be reasonable, but on a closer scrutiny, it can be seen to be devoid of any merits. As long as Ex.A2 takes in the property covered by Ext.B1, it will be difficult for the plaintiff to establish his case on the pleadings now available. The properties set apart to various parties under Ext.A2 will have to be worked out excluding the property covered by Ext.B2. The present suit cannot be amended in that way for the cause of action will be entirely different. The result is that there is no merit in this appeal and it is only to be dismissed. I do so, however, the plaintiff is given liberty to establish his case after excluding the property covered by Ext.B1 assigned in favour of the first defendant, if he is so advised. No order as to costs. P.Bhavadasan, Judge sta SA 777/99 9 SA 777/99 10