IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 SA.No. 361 of 1995() -------------------- AS.18/1991 of SUB COURT, KASARAGOD OS.208/1983 of ADDL..MUNSIFF, KASARAGOD .................... APPELLANT(S)/APPELLANTS/PLAINTIFFS: ----------------------------------------------------------- 1. CHIRUDAI, AGED 71 YEARS, RESIDING AT KUNDANNOOR MOOLA, MUTTATHODY VILLAGE, KASARAGOD TALUK. 2. MADHAVAN, AGED ABOUT 53 YEARS, RESIDING T -DO- -DO- 3. MEENAKSHI, AGED ABOUR 48 YEARS, RESIDING T -DO- -DO- 4. KALYANI, AGED ABOUT 45 YEARS, RESIDING T -DO- -DO- 5. LEELA, AGED ABOUT 43 YEARS, RESIDING T -DO- -DO- 6. KRISHNAN, AGED ABOUT 40 YEARS, RESIDING T -DO- -DO- 7. PADMANABHAN, AGED ABUT 40 YEARS, RESIDING T -DO- -DO- 8. NARAYANAN, AGED ABOUR 35 YEARS, RESIDING T -DO- -DO- BY ADV. SRI.B.K.BALRAJ SRI.K.LAKSHMINARAYANAN SRI.D.ANIL KUMAR SRI.N.L.KRISHNAMOORTHY RESPONDENT(S)/RESPONDENT.DEFENDANT: --------------------------------------------------------------- A. KRISHNAN, AGED ABOUT 49 YEARS, S/O. KUNHIKANNAN, HINDU, RESIDING AT KUNDANNOOR MOOLA, MUTTATHODY VILLAGE, KASARAGOD TALUK, P.O. ,MUTTATHODY. ADV. SRI.M.C.SEN, SENIOR ADVOCATE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON 14/10/2009 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 361 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2009. JUDGMENT The plaintiffs, who had their suit dismissed by the trial court and also their appeal dismissed by the first appellate court are the appellants. Since the facts were narrated in detail by the court below, the facts absolutely essential for the disposal of this appeal alone are being referred to. 2. It is not in dispute that the property involved in this proceeding belonged to the predecessor in interest of the plaintiffs, who obtained it under Ext.A3 document. A portion of the same was assigned to the defendant as per Ext.A1. In Ext.A1 the extent is only nine cents comprised in R.S. No.320/64, which was a portion of the property acquired under Ext.A3. Pointing out that the defendant had trespassed into a portion of the property belonging to the plaintiffs, the suit was laid for recovery of possession on the strength of title. S.A. 361/1995. 2 3. The suit was resisted on the ground that the extent shown in A1 is not correct. In fact according to the defendant the property sold to him is an extent of 21 cents, even though in the document, namely Ext.A1, the extent is shown as 9 cents. 4. The trial court raised necessary issues and the parties adduced evidence before the trial court. The evidence consists of the testimony of P.Ws. 1 and 2 and Exts.A1 to A4 on the side of the plaintiffs. Defendant had D.Ws.1 and 2 examined and Exts.B1 to B3 marked. Exts.C1 to C3 are the Commissioner's reports and plan. Based on the available materials before it, the trial court came to the conclusion that going by the boundaries mentioned in Ext. A1, the claim of the defendant is justified and that the plaintiffs have no right to recover possession of the plaint schedule property as claimed by them. 5. On appeal, the lower appellate court confirmed trial court decree. In the Second Appeal notice was issued on the following substantial question of law: S.A. 361/1995. 3 “i) When the sale deed gives an extent of 9 cents in R.S. 203/1B, can the court presume that an additional extent of 12 cents in R.S.194/4 has also been sold ? ii) Whether the courts below were correct in placing reliance on the boundary alone to fix the property ? iii) Have the courts gone wrong in finding out the real intention of the parties to the transaction as to the extent of property sold and purchased ? vi) Whether the counter claim is maintainable in law ? v) Whether the counter claim is barred by limitation ? vi) Is not the burden of proof on the defendant who admits the plaintiffs' title, but puts forward a plea of mistake in the document and if so, has the burden been properly discharged by him?” 6. It may be noticed here that along with the written statement, the defendant had also filed a counter claim. In the counter claim, the defendant had sought for rectification of the sale deed, namely, A1, seeking to have the extent incorporated corrected. The counter claim was also decreed. The claim in the appeal by the plaintiff against the counter claim was also rejected. S.A. 361/1995. 4 7. It needs at once to be noticed that there is a concurrent finding of fact that the extent taken in by Ext.A1 document executed in favour of the defendant takes in 21 cents of property. The learned counsel appearing for the appellants pointed out that since Ext.A1 mentioned only 9 cents, the defendant is precluded from contending that the extent is 21 cents in view of Section 92 of the Indian Evidence Act. In support of his contention, he relied on the decisions reported in Raveendrantha Menon v. Leelamma (1999(1) K.L.J. 352), Mohinder Singh v. State of Haryana ((1974) 4 SCC 285) and Hathika v. Padmanabhan (1994(1) K.L.T. 345). 8. Learned counsel appearing for the appellants also contended that in view of the plea of the defendant, it was for the defendant to establish that he had title over an extent of 21 cents, when the property conveyed under A1 had only an extent of 9 cents. Counsel also pointed out that in the case on hand, the survey number as well as the extent of the property shown in S.A. 361/1995. 5 Ext.A1 will have to be given due consideration and viewed from that angle, the courts below were not justified in declining relief to the plaintiff. 9. Per contra, learned Senior Counsel appearing for the respondent pointed out that the contention now raised before this court has no basis at all. Both the courts have concurrently found that though the extent shown in Ext.A1 document is only 9 cents, going by the boundaries in Ext.A1, it is clear that the sale deed took in an extent of 21 cents. Learned counsel also pointed out that Section 92 of the Indian Evidence Act has no application to the facts of the case and also that there are no grounds made out to interfere with the judgment of the court below. 10. The salutary principle regarding identification of the property is with reference to the boundaries mentioned in the document. There may be exceptional circumstances. In the case on hand, though the definite case of the plaintiffs is that going by Ext.A1 document an extent of only nine cents was assigned in S.A. 361/1995. 6 favour of the defendant, the defendant would contend otherwise and say that the property comprised in the boundaries to the schedule was the subject matter of sale and the intention of the parties was also to sell that extent of property comprised within the boundaries mentioned in the schedule to Ext.A1. 11. It is well settled that when there is ambiguity regarding the extent, survey number etc., apart from the boundaries shown in the relevant document, the intention of the parties also needs to be gathered. The defendant has pointed out that the transaction was gone through at the behest of the second plaintiff and he had taken a role in execution of Ext.A1 document. The second plaintiff chose to remain away from the box. It is interesting to note that when P.W.1 was cross examined, he deposed as follows: “The boundaries of Ext.A1 were not written by looking the plan with us. The property falling within the boundaries given Ext.A1 was sold to the defendant as per Ext.A1 document.” S.A. 361/1995. 7 He had also stated that the property was measured at the time of execution of Ext.A1 document. It is true that the defendant was also not fully aware of the contents of the document. But whatever that be, the courts below have found that what is intended to be sold as per Ext.A1 document is the property comprised in the boundaries shown to the document. 12. One may here notice the commission report and plan prepared by the Commissioner. It says that the property in the possession of the defendant has well defined boundaries separating it from the property possessed by the plaintiff. The defendant has also constructed a house therein and also running a spinning mill in the shed constructed in the same property. 13. As rightly pointed out by the learned counsel for the respondent, in the facts and circumstances of the case, it is not possible to understand how Section 92 of the Indian Evidence Act has any application. The question involved in this case is regarding the extent of the property sold as per Ext.A1 document. S.A. 361/1995. 8 True, the extent mentioned is 9 cents, but going by the boundaries, as held by the courts below, the document taken in much more extent and going by the evidence of P.W.1 what was intended to be sold to the defendant was that extent of property. Learned counsel for the appellants relied on the decision reported in Savithri Ammal v. Padmavathi Amma (1990(1) K.L.T. 187) to contend for the position that it is not an invariable rule that always the boundaries should prevail and in appropriate cases the intention of the parties needs to be looked into. 14. Ext.A4 is the survey plan of the property obtained by the predecessor in interest of the plaintiffs as per Ext.A3 document. Exts.C2, Commissioner's plan shows the property covered by Ext.A1 document as identified by him. The Commission report also says that there are boundary walls separating the defendant's property from that of the plaintiffs. The Commissioner has located the property with reference to the boundaries. Learned counsel for the appellants was unable to S.A. 361/1995. 9 show that the property has not been properly identified. Though it is claimed that objections were filed to the Commissioner's report, there is nothing to indicate that they have been able to substantiate their contentions. 15. The identity of the property is essentially a question of fact. The courts below have concurrently found on the basis of the evidence adduced before the trial court that the property conveyed to the defendant as per Ext.A1 document had an extent of 21 cents. Cogent and convincing reasons have been given by the court below to come to that conclusion. 16. Regarding the counter claim also, the trial court was fully justified in decreeing the counter claim set up by the defendant. Once it is found that the property intended to be conveyed under Ext.A1 document to the defendant was an extent of 21 cents, automatically the counter claim of the defendant has to succeed. It is not necessary for him thereafter to adduce independent evidence to show that he is entitled to get rectification S.A. 361/1995. 10 of the deed. The definite stand of the defendant is that the document in his favour takes in more extent than what is mentioned in the deed, and the courts below have found in his favour. There is no merit in the claim of the appellant that the counter claim ought not to have been decreed by the court below. The result is that, this appeal is without merit and it is liable to be dismissed. I do so. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb. S.A. 361/1995. 11 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 361 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 14.10.2009.