IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 RSA.No. 176 of 2008() --------------------- AS.104/2003 of PRINCIPAL SUB COURT,NORTH PARAVUR OS.241/1998 of MUNSIFF COURT,N. PARAVUR .................... APPELLANT : APPELLANTS/PLAINTIFFS ----------------------------------------------- 1. RAMAYYAR, S/O.LATE THYAGARAJAYYAR KPUTHENMADATHIL, KIZHATHARAKKAL THIRUVALLOOR KARA, ALANGADU VILLAGE PARAVUR TALUK. 2. RUGMINI, W/O.RAMAYYAR, DO. DO. BY ADV. SRI.S.SHYAM SRI.BOBBY MATHEW KOOTHATTUKULAM RESPONDENTS: RESPONDENTS/DEFENDANTS ----------------------------------- 1. SEETHALAKSHMI,W/O.LATE SUBRAHMANIYA IYER PUTHENMADATHIL, KIZHUTHARAKKAL, THIRUVALLOOR KARA ALANGADU VILLAGE, PARAVUR TALUK, NOW RESIDING AT D.P.O. ROAD, NEAR TOWN SQUARE CLUB THOTTUNGAL, PALAKKAD. 2. DR. S.HARIHARA IYYER S/O.LATE SUBRAHMANIYA IYYER, DO. DO. 3. K.S.SUBRAMANIYAN @ MANI S/O.SEETHALAKSHMI, DO. DO. NOW RESIDING AT RAHULVIHAR, 38-DHANGAR COLONY, KOTHRADU PUNE-29. 4. RAVI, EARIYELIL, RESIDING AT PULIAKAMADATHIL, THIRUVALOOR KARA ALANGADU VILLAGE, PARAVUR TALUK. 5. SALINI, W/O.RAVI, DO. DO. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 176 OF 2008 =========================== Dated this the 24th day of March, 2008 JUDGMENT Plaintiffs in O.S. No.241/1998 on the file of Munsiff Court, North Paravoor are the appellants. Defendants are the respondents. Suit was filed for fixation of the boundary. Case of the appellants was that plaint A schedule property having an extent of 13 cents was purchased by the second appellant under Ext.A1 sale deed dated 10.6.1991 and first appellant is her husband and they are residing in the plaint schedule property. First respondent is having 14 cents which is the plaint B schedule property inclusive of the house. Respondents 1 and 2 are residing at Palghat and third respondent is at Pune and both the buildings in the plaint A and B schedule properties are having a common roof and the boundary between these two buildings is the common wall separating the buildings. The total extent of the property is 27 R.S.A.176/2008 2 cents. There are two separate gates one each to the appellants and respondents. Appellants are entitled to get the western boundary of plaint A schedule property fixed. They are also entitled to a decree for permanent prohibitory injunction in respect of plaint A schedule property. Respondents resisted the suit contending that they sold their property in favour of respondents 4 and 5 as per sale deeds 3186 and 3187 of 1998 and there is already a demarcating boundary separating the properties and so no separate boundary is to be fixed. Respondents 4 and 5 who were later impleaded filed a written statement that as a separating boundary exist appellants are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of PW1 and Exts.A1 and A2, Exts.C1 and C1(a) found that though the total extent of the property was 27 cents, actual extent of the property available in the possession of appellant is 11.220 cents and that of respondents 13.450 cents and though there is a R.S.A.176/2008 3 shortage of extent, appellant being an assignee of one of the sharers is not entitled to claim any additional extent from the property of respondents as it was admitted that second respondent purchased the property without measurement. Finding that there is an existing physical boundary separating the properties suit was dismissed. Appellants challenged the judgment before Sub Court, North Paravur in A.S.104/2003. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of learned counsel is that when respondents did not produce their title deed and the total extent available in the property is only 24.670 cents as against 27 cents as found by the Commissioner in Ext.C1 report, respondents cannot claim 13.450 cents when appellant, who is entitled to 13 cents are in possession of only R.S.A.176/2008 4 11.220 cents. It was argued that if the total extent available after the formation of the road is only 24.670 cents, the property of appellants and respondents are to be fixed in the ratio of 13:14 and it is on that basis Commissioner fixed the western boundary of plaint A schedule property as the western boundary line of the yellow coloured plot and the boundary separating the property of appellants and respondents should be the western boundary of the yellow coloured plot and not the eastern boundary of the yellow coloured plot as claimed by respondents and courts below should have fixed the boundary with reference to Ext.C1(a) plan. Learned counsel also argued that in any case when respondents did not adduce any evidence and as PW1 first appellant deposed that respondents encroached upon a portion of their property and reduced that into their possession, courts below were not justified in dismissing the suit without fixing the boundary with reference to Ext.C1(a) plan. Learned counsel further argued R.S.A.176/2008 5 that in any case an opportunity is to be granted to the appellants to properly identify the property. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. In the plaint itself appellants admitted that under Ext.A1 sale deed second appellant obtained plaint A schedule property having an extent of 13 cents and first respondent is entitled to 14 cents, the plaint B schedule property, which lies to the west of plaint A schedule property. A Commission was taken out to demarcate the properties. Commissioner on measurement found that though plaint A and B schedule properties together come to 27 cents, property now available is only 24.670 cents. The Commissioner reported that the remaining property was taken for widening of the way as well as by third parties. Commissioner has not fixed the property which was allegedly taken possession by third parties. Commissioner found that out of 24.670 cents, appellant is in R.S.A.176/2008 6 possession of 11.220 cents and respondents are in possession of 13.450 cents. Even according to appellants, respondents are entitled to 14 cents and appellants only 13 cents. The fact that appellants are in possession of 11.220 cents will not enable them to claim any portion of the property from the possession of respondents so long as respondents are not in possession of any excess land. Even according to appellants, respondents are entitled to 14 cents and they are now in possession of only 13.450 cents. It cannot be said that they are in possession of any excess land. 7. The argument of learned counsel is that when the total extent of the property available is only 24.670 cents, appellants are entitled to proportionate share of that property and respondents are not entitled to get 13.450 cents. First of all, appellant is only an assignee of one of the sharers. As PW1 appellant admitted that when they purchased the property, they did not get the property measured which was assigned under R.S.A.176/2008 7 Ext.A1. Therefore what could be claimed by appellants is only the property which was in the possession of the assignor at the time of the execution of Ext.A1 sale deed. Even according to appellants, they did not measure the property before Ext.A1. Hence they cannot claim that they obtained 13 cents of the property. They could claim only that property excluding the property belonging to respondents. There is no case for appellant that any portion of their property was taken for the road subsequent to Ext.A1. Therefore the property obtained by appellant was only excluding the property which was lost earlier. If that be so, based on the shortage of extent now in their possession, appellants are not entitled to claim a portion of the property in the possession of respondents. Courts below found that though appellant is in possession of only 11.220 cents, respondents are also in possession of a lesser extent 13.450 cents. It was also found that there is a physical boundary separating the two R.S.A.176/2008 8 properties. Even in the plaint it is admitted that there is a building in both plaint A and B schedule properties separated by a common wall. The evidence establish that there is a separating physical boundary. Moreover by fixing the boundary appellants cannot claim possession of a portion of the property from the possession of respondents without seeking a decree for recovery of possession. Boundary cannot be fixed in such a way as to carve out a portion of the property of respondents, without a prayer for recovery of possession. In such circumstance, the courts below found that appellants are not entitled to get the boundary fixed when there exist a physical boundary separating the properties in their possession. The appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006