IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 SA.No. 474 of 1997(F) -------------------------- AS.28/1995 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.266/1990 of MUNSIFF COURT,KAYAMKULAM .................... APPELLANT(S):RESPONDENT/DEFENDANT ------------------------------------------------- K. MURALEEDHARAN, DEVI BHAVAN, VETTUCHIRA MURI, BHARANICKAVU VILLAGE, MAVELIKKARA TALUK, ALLEPPEY DISTRICT. BY ADV. DR.P.S.KRISHNA PILLAI RESPONDENT(S): RESPONDENT ------------------------------------ P.S. THOMAS, VETTUKUZHI PADINJATTATHIL VEEDU, MUNDANKAVU MURI, MUNDANKAVU VADAKKEKKARA VILLAGE, REPRESENTED BY HIS POWER OF ATTORNEY JOHN GEORGE, PONNALAYATHIL VEEDU, KATTANAM MURI, BHARANICKAVU VILLAGE, MAVELIKKARA TALUK, ALLEPPEY DISTRICT. ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2011, THE COURT ON 10/01/2011 DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO.2467/1997 & I.A. NO.1430/2005 IN S.A. NO.474/1997 DISMISSED 10/01/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 474 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of January, 2011. JUDGMENT The defendant in O.S. 266 of 1990, who suffered a decree at the hands of the lower appellate court is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for declaration of title and for other consequential reliefs. The plaintiff laid claim to plaint A schedule property by virtue of Ext.A2 dated 24.3.1983. According to the plaintiff, further to the shop room in the property, there is vacant plot on the southern side. On the western side there is a Panchayat road and another road lies on the northern side of the property. The defendant has his property on the southern side of the plaint schedule property and it lies S.A.474/1997. 2 at a lower level. According to the plaintiff, the two properties are separated by well laid boundaries. The complaint of the plaintiff is that with the connivance of the survey authorities, the defendant managed to get a plan prepared showing a portion of the property belonging to the plaintiff as that of the defendant. This mischief was played by the defendant when he had come to know that the plaintiff is going to put up a boundary separating the two properties. Apprehending trouble from the defendant, the suit was laid for the following reliefs already made mention of. 3. The defendant apart from defending the suit preferred a counter claim also. According to the defendant, it is the plaintiff who is trying to annex a portion of his property as that of the plaintiff. While the defendant was out of station, the plaintiff, with ulterior motive, laid foundation for a boundary wall enclosing portion of the property owned and possessed by the defendant. Even though the document of title of the plaintiff shows an extent S.A.474/1997. 3 of 10 cents of property, actually he did not get possession of that extent of property at the time of transfer. The allegation regarding the connivance with the survey authorities was denied. According to the defendant, it was the plaintiff, who had tampered with the boundary separating the two properties and tried to put up a boundary wall encroaching into the property owned by the defendant. When disputes arose between the parties, mediators intervened and there was an understanding to have the properties measured by the survey authorities. Inspite of the understanding, without taking any steps in that regard, the plaintiff has rushed to the court with false allegations. Apart from defending the suit, the defendant also claimed that he is entitled to recover a portion of the property now in the possession of the plaintiff and also to have the boundaries fixed through court. In his written statement, the plaint schedule property was shown as A schedule and the defendant's property was shown as B schedule. S.A.474/1997. 4 4. On the above pleadings, issues were raised by the court below. The evidence consists of the testimony of P.Ws. 1 to 4 and documents marked as Exts.A1 to A11 from the side of the plaintiff. The defendant examined D.W.1 and had Exts. B1 to B5 marked. Exts. C1, C2, C2(a), C2(b) and C2(c) are the reports and plans prepared by the commissioner. 5. The trial court on an evaluation of the evidence found that none of the commission reports could be relied on and that without fixing the boundaries, no relief can be granted to the parties in the suit or in the counter claim. Accordingly the suit was dismissed. 6. In the appeal by the plaintiff, the appellate court felt that Ext.C2(a) plan is acceptable and accordingly granted a decree in favour of the plaintiff as per Ext.C2(a) plan and the corresponding report. 7. The following questions of law are seen raised in this appeal: S.A.474/1997. 5 “A. On the facts and in the circumstances of the case, is the lower appellate court correct or justified in relying on Ext.C2(a) plan and granting declaration and injunction to plaintiff for 8.5 cents “excluding the portions taken for road? B. In the absence of proper identification and demarcation of the property over which plaintiff has got title and possession, is the lower appellate court justified in reversing the trial court's decree and granting declaration and injunction to plaintiff arbitrarily in respect of 8.5 cents “excluding the portions taken for road”? C. In the light of his assertion of title and possession over the entire 10 cents covered by Ext.A2 with the help of Exts.A1 to A11 and the testimony of P.Ws.1 to 4, is plaintiff entitled to the equitable remedies of declaration and injunction with respect to a lesser extent, and that too, in the absence of proper identification of the extent over which he has got title and possession? D. On the facts and in the circumstances of the case and in the light of the contentions put forward by the parties, is the lower appellate court justified in disturbing the reasonings and findings of the trial court? S.A.474/1997. 6 E. On the facts and in the circumstances of the case, are the courts below justified in refusing defendant's prayer for fixation of boundary between A & B schedule items shown in the written statement and for a mandatory injunction directing plaintiff to remove the basement and materials from B schedule item?” 8. One cannot dispute that in the nature of the rival contentions by the parties, a proper plan and report is required for resolving the disputes involved in the case. It is true that the Commissioner has prepared Exts.C1 and C2 reports and C2(a), C2(b) and C2(c) plans. The argument of the plaintiff was that there is a well demarcated boundary as could be discerned in Ext.C2(a) plan separating the two properties and therefore a decree in his favour has to follow. On the other hand, the defendant would contend that Ext.C2 (a) plan cannot be accepted for more reasons than one and Ext.C2(b) is the correct plan of the properties. Going by Ext.C2(b) plan, it can be seen that the plaintiff is in possession of the property owned by the defendant and S.A.474/1997. 7 therefore he claims that he is entitled to a decree in his favour. 9. From the commission report, it is clear that the plaint schedule property lying north of the property owned and possessed by the plaintiff lies at a higher level. The commissioner in his report stated that there is a boundary, which has been tampered with by the plaintiff and a basement has been erected. Going by the evidence on record, it would appear that the basement to the boundary was laid recent to the suit. Apart from the above, the plaintiff also relies on the fact that an electric line has been drawn through the disputed property. That is projected as a ground to show that the property was owned by him. 10. The trial court for weighty reasons found that none of the plans and reports can be accepted. It was also found by the trial court that even assuming that the plaintiff can seek relief on the basis of Ext.C2(a) plan, that does not improve his case. S.A.474/1997. 8 11. It may be remembered that as per the document of title of the plaintiff, he is entitled to 10 cents of property and going by Ext.C2(a) plan he is entitled to a decree. As rightly noticed by the trial court, going by Ext.C2 (a) plan the plaintiff cannot have 10 cents of property. Though two witnesses were examined on the side of the plaintiff to establish that the plaintiff has 10 cents of property in his possession, that cannot be accepted for the reason that the commission report, which the plaintiff relies on does not indicate that the plaintiff has 10 cents of property. 12. On going through the records, it becomes evident that the disputed portion lies on the southern side of the plaint schedule property and on the northern side of the defendant's property. The Surveyor, who was examined as P.W.2 submitted that the plan prepared by him is not in tune with Ext.X1 called for by the defendant. The trial court on an elaborate consideration of the commission reports and plans S.A.474/1997. 9 found that it is not safe to rely on either Ext.C2(a) or Ext.C2 (b) to decide the issues involved in the case. 13. The appellate court on the other hand found Ext.C2(a) to be acceptable. The main fact, which influenced the court below was that going by Ext.C2(a) and C2(b)plans, the defendant has 12 ½ cents of property in his possession, which alone he is entitled to and the allegation of the defendant that a portion of his property is in the possession of the plaintiff is to be accepted, then the defendant will have more extent in his possession. This fact alone has persuaded the lower appellate court to accept Ext.C2(a) plan. 14. It must be said that Ext.C2(a) is not reliable at all. That is evident from the evidence of P.W.2, the Surveyor, who had prepared the said plan. According to the plaintiff, he even now owns 10 cents of property, that is falsified by Ext.C2(a) plan. It is not in dispute that a portion of the property now owned and possessed by the plaintiff had been utilized for formation of roads on the northern and S.A.474/1997. 10 western sides of the property. The sympathy of the appellate court went in favour of the plaintiff only because as of now he has only a lesser extent of property. That cannot be a criterion for granting a decree to the plaintiff. In the light of the evidence adduced by P.W.2, who says that he had prepared the plans on the basis of old plan and also the resurvey plan, and also in the light of the fact that Ext.C2(a) plan differs considerably from Ext.X1, it was not proper on the part of the lower appellate court to have accepted Ext.C2(a) plan. 15. Before this court, the plaintiff has sought to produce the resurvey plan prepared by the survey authorities as additional documents under Order 41 Rule 27 of the Code of Civil Procedure. 16. On going through the plan so prepared, it can be seen that it does not compare well with Exts. C2(a) and C2(b) plans. The result is that there are three different plans before this court with regard to the property owned by the plaintiff and defendant. Each of them vary considerably S.A.474/1997. 11 from the other. It is therefore very clear that no proper plan has been prepared, which is essential for the adjudication of the issue involved in the suit. 17. It is absolutely necessary that a resurvey plan on the basis of the title deeds relied on by the parties is absolutely essential to resolve the controversies involved in the suit. Resurvey plan, as is known is prepared on the basis of the possession of the properties by the parties. It is extremely doubtful whether resurvey can confer title to any person. This fact is omitted to be noticed by the courts below. It is therefore evident that a reconsideration of the issues is necessary for getting a proper sketch prepared through the appropriate authority. In the result, this appeal is allowed, the impugned judgments and decrees are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The parties will be at liberty to adduce further evidence, if they so choose, and to get a fresh plan and S.A.474/1997. 12 report prepared in order to have the issues resolved in the suit. Being a suit of the year 1990, the trial court may make every endeavour to dispose of the suit as expeditiously as possible. Parties shall appear before the court below on 16.2.2011. Office shall send back the records forthwith. P. BHAVADASAN, JUDGE sb.