IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 SA.No. 717 of 1999() ---------------------------- AS.15/1994 OF DISTRICT COURT,KOZHIKODE OS.19/1991 Of SUB COURT, VADAKARA .................... APPELLANT(S): RESPONDENTS 1 AND 2 AND PLAINTIFFS ----------------------------------------------------------------------------------- *1. NARAYAMKANDIYIL PARKUM MEETHALA PUTHUKKUDI MANJAKANDI KADEESA, D/O. AMMAD, VELLAYIKODE AMSOM, BHUMIVATHUKKAL DESOM, VADAKARA TALUK. (DIED) *IT IS RECORDED THAT IST APPELLANT DIED AND LRS NEED NOT BE IMPLEADED AS PER ORDER DTD. 9.12.2010 IN MEMO DTD. 3.10.10 CF. 6062/10. 2. KUNHALI, S/O. KADEESA, DO. DO. BY SRI.M.C.SEN, SENIOR ADVOCATE BY ADVS. SRI.M.P.SREEKRISHNAN SRI.S.PRAKASH SMT.G.SAVITHA RESPONDENT(S): R3 APPELLANTS 1 TO 3 R5 TO R7, R9 TO R21 , APPELLANT ------------------------- NO.4, RESPONDENTS 22 TO 40 IN APPELLATE COURT DEFENDANTS 1 TO 4,6 TO 8 AMD 10 TO 32 AND LRS. OF D5. 1. KOYIPPALLI VENGAKANDI KANARAN, S/O. CHEKKON, VELLAYIKODE AMSOM, BHUMIVATHUKKAL DESOM, VADAKARA TALUK. 2. THIRUVANGOTH PARKUM KOYIPPALLI MATHA, D/O. CHEKKON, RESIDING AT VELLAYIKODE AMSOM, BHUMIVATHUKKAL DESOM, VADAKARA TALUK. 3. KONNAPALAM KANDI PARKUM KOYIPPALLI VEETTIL CHOYICHI, D/O. CHEKKU, DO. 4. KOYIPPALLI KANNAN, S/O. KUNKAR, DO. DO. 5. KEEMULLA PARAMBATH MOIDU, S/O. KUNHALI, BUSINESS, DO. S.A. NO.717/1999 6. CHEKKENTEPAPRAMBATH AVOOLLA, S/O. MOIDU, BUSINESS , DO. DO. *7. PEETTAKANDIYIL MAMMOOTTY, S/O. SOOPY HAJI, BUSINES, DO. DO. (DIED) 8. PADINHARA PARAMBATH KUNHALI, S/O. KUNHAMMAD, BUSINES DO. DO. *9. IRUNNALALTHUMMAL CHIRUTHA, D/O. CHATHU, DO. DO.(DIED) *IT IS RECORDED THAT RESPONDENT NO.9 IS DEAD AND R10 & R16 ARE LRS OF THE DECEASED R9 AS PER ORDER DTD. 14.3.2003 ON MEMO DTD. 3.3.03 (CF.1311/03 10. IRUNNALATHUMMAL JANU, D/O. CHEKKON, DO. DO. 11. DO. DO. KANARAN, S/O. CHEKKON, DO. BUSINESS, DO. 12. DO. SUSHEELA, D/O. CHEKKON, DO. DO. 13. DO. CHANDRI, D/O. CHEKKON, DO. DO. 14. DO. SUKUMARAN, S/O. CHEKKON, AGRICULTURIST, DO. DO. 15. SUMATHI, D/O. CHEKKON, (NOW MAJOR) DO. DO. 16. NELLIYULLA PARAMBATH KANARAN, S/O. OTHENAN, AGRICULTURIST, VELLIYODE AMSOM DEOSM, VADAKARA TALUK. 17. DO. CHANDRI, D/O. KANARAN, DO. DO. 18. DO. REMANI, D/O. KANARAN, DO. DO. 19. DO. SUMATHI, D/O. KANARAN, DO. DO. 20. DO. ANITHA, D/O. KANARAN, DO. DO. 21. KUNHIPARAMBATH THAMASIKKUM CHETTIYAM VEETTIL, ITTANPARAMBAN SOOPY HAJI, S/O. KUNHALI, RESIDING AT VELLAYIKODE AMSOM, BHUMIVATHUKKAL DESOM, VADAKARA TALUK. *22. PEETTOLLA PARPAMBATH KUNHAMMAD, S/O. KUNHAVOOLLA HAJI, BUSINESS, VELLIYODE AMSOM, BHUMIVATHUKKAL DESOM, VADAKARA TALUK. (DIED) *R7 & R22 RECORDED DIED AS PER ORDER DTD. 17.8.10 IN MEMO DTD. 16.8.10 C.F. 4922/10 AND IT IS ALSO RECORDED THT L.RS OF R7 & R22 NEED NOT BE IMPLEADED AS PER ORDER DTD. 9.12.2010 IN MEMO DT. 3.10.10 IN CF. 6062/10. 23. DO. MOIDU HAJI, S/O. DO. BUSINESS DO. DO. S.A. NO.717/1999 24. POYIKANDI THAMASIKKUM PEETTOLLA PARAMBATH BIYYATHU, D/O. KUNHAVOOLLA, VANIMAL AMSOM, VERKADAVU DESOM, VADAKARA. 25. ARALLATHIL PARKUM PEETTOLLA PARAMBATH ALIYUMMA, D/O.KUNHAVULLA, NARIPATTA AMSOM, CHEEKONNUMMAL DESOM, VADAKARA TALUK. *26. PADINHARAPARAMBATH BIYYATHU, D/O. KUNHALI HAJI, (INSANE) ADVOCATE SMT.V.KRISHNAKUMARI, VADAKARA (DIED) 27. DO. AMMAD, S/O. KUNHALI HAJI, BUSINESS, NARIPATTA AMSOM CHEEKONNUMMAL DESOM, VADAKARA TALUK. 28. DO. MAMI, D/O. KUNHALI HAJI, NARIPATTA AMSOM, DO. DO. 29. THEKKIDI CHALU PARAMBATH VIJAYAN, S/O. KANARAN, VELLIYODE AMSOM, BHUMIVATHUKKAL DESOM, VADAKARA TALUK. 30. THEKKIDI CHALU PARAMBATH JANU, D.O. KANARAN, VELLIYODE AMSOM, BHUMIVATHUKKAL DESOM, VADAKARA TALUK. 31. KINARULLA PARAMBATH UPPENNU, W/O. K.P.AVOOLLA HAJI, RESIDING AT VELLIYODE AMSOM, BUMIVATHUKKAL DESOM. 32. DO. BIYATHU, D/O. K.P.AVOOLA HAJI, DO. 33. DO. MAMMUTTY, S/O. DO.DO. 34. DO. MAMI, D/O. DO. 35. DO. ANDRU, S/O. DO. DO. 36. DO. ALEEMA, D/O. DO. DO. 37. DO. KADIYA, D/O. DO. 38. DO. HAMEED, S/O. DO. DO. 39. DO. MARIYAM, D/O. DO. DO. S.A. NO.717/1999 40. DO. USMAN, S/O. K.P.AVOOLLA HAJI, DO. DO. *ADDL. R41 IMPLEADED. 41. ASIA, D/O. LATE PADINHARE PARAMBATH BIYYATHU, PADINHARE PARAMBATH, KODIYARA, KALLADI, KOZHIKODE 673 515. *ADDL. R41 IS IMPLEADED AS THE LEGAL HEIR OF DECEASED R26 AS PER ORDER DT. 5.9.05 IN CMP. 607/03. R2 & R3 & R4 & 21 BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE R3 BY ADV. SRI.M.KRISHNAKUMAR R3 BY ADV. SRI.JAYESH MOHANKUMAR R 31 & 38 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R 33 BY ADV. SRI.K.V.SOHAN. R 40 BY ADV. SRI.T.M.ABDUL LATHEEF THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2010, THE COURT ON 21/12/2010 DELIVERED THE FOLLOWING: ORDER ON CMP. NO.1937/1999 IN S.A. NO.717/1999 DISMISSED 09/12/2010 SD/- HARUN- UL-RASHID, JUDGE TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ S.A.No.717 Of 1999 ---------------------- Dated this the 21st day of December, 2010. J U D G M E N T The following substantial questions of law are formulated in the second appeal. 1. Whether the decision reported in 1957 KLJ 722 holding that in case of conflict between the boundaries and the extent of a property in the document, the boundaries shall prevail will not apply to the facts of case. 2. Whether the lower appellate court was correct in interpreting the documents Exts.A1 and A2 to hold that the northern portion of the property leased under Ext.A1 is not included in the partition deed Ext.A2. 3. When the title deeds of the 1st plaintiff and the prior title deeds of the vendor conclusively show that the entire plaint schedule property is subject matter of sale deeds in favour of the plaintiff, whether the lower appellate court was correct in relying only on the commissioner's plain and a mistake in the north-south measurement to arrive at the conclusion that the northern 60 cents is excluded. 4. When the suit is based on title and when the defendants have not adduced any evidence to prove adverse possession, whether the plaintiff is not entitled to decree for recovery of possession on the basis of Article 65 of the Limitation Act. S.A.No.717 Of 1999 ::2:: 2. The plaintiffs in O.S.No.19 of 1991 on the file of the Sub Court, Vadakara are the appellants. The appeal is directed against the judgment and decree in A.S.No.15 of 1994 on the file of the District Court, Kozhikode. Suit was filed for declaration that the plaintiffs have proved right over the plaint schedule property and recovery of possession in case if it is found that the defendants are in possession. The trial court decreed the suit. The trial court declared that the plaintiffs have title to the plaint schedule property and directed the defendants to surrender possession of the property to the plaintiffs. In the appeal preferred by defendants 2 to 4 and 30 the lower appellate court set aside the decree and judgment of the trial court finding that plaintiffs have failed to prove title and possession over the entire plaint schedule property. The lower appellate court allowed the appeal and dismissed the suit. Parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 3. Short facts of the case leading to the passing of the impugned judgment are as follows: Plaint schedule property is said to be the property obtained under registered lease deed of the year 1943 by late Kunkar and S.A.No.717 Of 1999 ::3:: defendants 1 to 3. The said deed is marked as Ext.A1. Subsequently, accordingly to the plaintiffs, Kunkar and defendants 1 to 3 partitioned the property in 1960. Copy of the said partition deed is marked as Ext.A2. Thereafter 4 sharers were in possession of the portions allotted to them separately. It is the plaintiffs' case that boundaries are shown correctly and north-south measurement shown in the partition deed is a mistake. The first plaintiff purchased portions of property obtained by defendants 2 & 3 and Kunkar by different assignment deeds. The assignment deeds executed by the third defendant and Kunkar in favour of the first plaintiff are marked as Exts.A3 & A4. Assignment deed executed by the second defendant in favour of the first plaintiff is marked as Ext.A5. The first defendant assigned the right obtained under Ext.A2 partition deed to one Koran. From Koran the first plaintiff got assignment of the said right. Ext.A6 is the said assignment deed. Thus the plaintiffs' case is that by virtue of Exts.A3 to A6 assignment deeds the first plaintiff purchased the right of the executants in Ext.A2. 4. The second plaintiff is the son of the first plaintiff. S.A.No.717 Of 1999 ::4:: Exts.A7 and A8 are the gift deeds executed by the first plaintiff in faovur of the second plaintiff and his brother Mayankutty. The entire property covered by Exts.A3 to A6 other than one cent was gifted to the donees. The first plaintiff had retained the right to collect usufructs from the property till her death. One cent retained by the plaintiff was sold to one Ali Hassan under Ext.A9 sale deed. 5. The case of the plaintiffs therefore is that the plaintiff along with Mayankutty have right over the plaint schedule property excluding one cent. It is the case of the plaintiffs that there is a mistake in the north-south measurement in Ext.A2 partition deed. According to the plaintiffs the actual north-south measurement is 71 six feet koles. In the partition deed a lesser north-south measurement was shown to the tune of 31 six feet koles. According to them the boundaries in Ext.A2 will show that the entire property was partitioned. It is the plaintiffs' case that the very same mistaken measurement was carried out in the different sale deeds in favour of the first plaintiff and in the gift deeds referred above. So the mistake in the north-south measurement had crept in those documents as well. According S.A.No.717 Of 1999 ::5:: to the plaintiffs the 5th defendant had filed a suit in collusion with defendants 1 to 3 taking advantage of wrong measurement shown in Ext.A2 and that the defendants 1 to 3 and 5 are trying to grab the property by taking advantage of the said mistake. 6. Defendants filed written statement raising different contentions. The 5th defendant contended that what is partitioned by Ext.A2 is only southern portion of the property. According to him the northern portion was orally leased to him by Kunkar and defendants 1 to 3 in 1958 and only the remaining portion was partitioned in 1960. Therefore on the basis of the said contention the 5th defendant claimed possession over the northern portion of the plaint schedule property. It is also his case that he filed a suit for injunction and in the alternative for recovery of possession as O.S.No.5 of 1976 before the sub Court, Vadakara and the said suit was decreed. Defendants in the suit are Kunhabdulla Haji and others. The decree passed in O.S.No.5 of 1976 was confirmed in A.S.No.266 of 1984. The 5th defendant also contended that based on the decree passed in O.S.No.5 of 1976 he got delivery of the property from the defendants in the said suit. Exts.B1 & B2 are the judgments of the trial court and S.A.No.717 Of 1999 ::6:: appellate court respectively. Ext.B3 is the copy of the delivery account which was produced to show that the 5th defendant has taken delivery of the property in execution of the decree in O.S.No.5 of 1976. 7. The first defendant filed a written statement supporting the contentions of the 5th defendant. Defendants 2 & 3 who are also parties to the Ext.A1 and the 4th defendant who is the son of Kunkar concurred with the statement that the northern portion of the property was not partitioned by Ext.A2 partition deed. It is their case that northern portion was kept in common among the owners. More or less the very same contentions are raised in the written statement filed by them. The first plaintiff had obtained right by different assignment deeds only the southern part of the property. Defendants 2 to 4 and 5th defendant are the plaintiffs in O.S.No.5 of 1976. At the same time defendants 2 to 4 contended that the 5th defendant had fraudulently obtained a decree in O.S.No.5 of 1976 making them also parties to the suit without their knowledge and when they came to know about the filing of the suit, they filed O.S.No.103 of 1990 before the Munsiff Court. Copy of the judgment in S.A.No.717 Of 1999 ::7:: O.S.No.103 of 1990 produced by the defendants is marked as Ext.B5. The decree and judgment passed in O.S.No.5 of 1976 was set aside by the decree in O.S.No.103 of 1990. 8. According to defendants 9, 23 to 26 the northern portion is not a part of the property obtained by Ext.A1. These defendants are the defendants in O.S.No.5 of 1976. According to 30th defendant who is supporting defendants 2, 3 & 4, the northern portion of the property as per Ext.A1 was retained by defendants 1 to 3 and Kunkar. On the death of Kunkar his share devolved on his legal heirs. The 30th defendant contended that he got assignment of the share of Vijayan, son of Kanaran who is one of the sons of deceased Kunkar. It is contended that he had filed a suit for partition before the Munsiff Court, Nadapuram as O.S.No.22 of 1990. 9. The above said facts and materials would show that the defendants have no common case and that they fight each other upon the right and possession of the property. The plaintiffs adduced oral and documentary evidence. PW1 was examined and Exts.A1 to A11 were marked. Exts.B1 to B5 were marked on the side of the defendants. Exts.C1, C2, C3 and C4 S.A.No.717 Of 1999 ::8:: are marked as court exhibits. 10. From the report and plan submitted by the commissioner it can be seen that the property as per Ext.A1 is in a triangular shape tapering at the north. The trial court noted that the parties did not raise any dispute regarding the identity of the property and therefore the trial court observed that the property shown by the commissioner as triangular in shape in Exts.C1 and C4 plans is the plaint schedule property and the one shown in Ext.A1 lease deed. 11. On an analysis of the pleadings and contentions of the parties it can be seen that the dispute is only regarding the northern portion of the property. The defendants did not dispute that the southern portion was partitioned among defendants 1 to 3 and Kunkar. The plots shown as A, B, C and D in Ext.C1 are the plots marked by the commissioner on the basis of the measurement of the different plots shown in Ext.A2 partition deed. The commissioner after marking plots as A, B, C & D left out the northern portion coming almost half of the southern portion. To be more clear, the rectangular portion of the property is left out after marking A, B, C and D plots. S.A.No.717 Of 1999 ::9:: 12. The trial court examined the contention of the plaintiff as to whether the north-south measurement shown in Ext.A2 is correct. The definite case of the plaintiff is that the entire property as per Ext.A1 was partitioned. The north-south measurement was wrongly shown in the document. They have pointed out several circumstances which according to them would show that the entire property was partitioned. Therefore, the trial court examined the question as to whether Ext.A2 also takes in the northern portion not covered by plots A, B, C and D marked in Ext.C1. PW1 testified before the court that the entire property was divided by Ext.A2. He also deposed that his mother has obtained right and possession over the entire property by 4 different sale deeds marked as Exts.A3 to A6. The trial court noted that there is no dispute regarding the east-west measurement of the property. The east-west measurement in Ext.A1 is shown as 34 six feet koles. The north-south measurement shown in Ext.A1 is 71 six feet koles. Some of the defendants admitted that it is the measurement as per Ext.A1 and it includes the northern portion marked by the commissioner as per Exts.C1 and C4 plans as well. The important question S.A.No.717 Of 1999 ::10:: raised by the appellants/plaintiffs is that the entire property was partitioned though the north-south measurement is not correctly shown in Ext.A2. The trial court noticed that the northern boundary in Exts.A1 and A2 is shown to be the same. The court observed that because of the triangular shape of the property Kooverikandi paramba will be the boundary on the north as well as the east. Following the settled legal proposition the trial court held that if there is any dispute between the area and the boundaries mentioned in a document the description of the boundaries should be accepted in preference to the area for determining the extent of land covered thereunder. The trial court followed the decision reported in Krishnamoorthy Iyer v. Janaki Amma and another (1957 KLJ 722). It is also a settled principle that it is not inflexible or infallible rule and even in cases in which this rule has been applied, when from the proved circumstance it is clear that the function of the parties was only to convey the extent mentioned in that document, even though the boundaries would take in a larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail. The principles laid down in 1957 KLJ 722 is a S.A.No.717 Of 1999 ::11:: well settled proposition of law as is squarely applicable to the facts and circumstances of this case. 13. On a reading of Ext.A2, it is clear that there was no intention to exclude any portion from partition. There is a recital in Ext.A2 stating that the property to be conveyed as per Ext.A2 is the property obtained under Ext.A1 release deed. It is not stated in Ext.A2 that a portion of property was already given on lease and is now in the possession of a stranger. The boundary description in Ext.A2 also do not show that the northern part of the plaint schedule property is with first defendant on lease as alleged by him. If the intention of the parties was to partition only the southern part this would have been stated in the document. The trial court also stated the aforesaid reasons after reading Exts.A1 & A2. Referring to Ext.A1 the trial court also noticed that the rent of the property is Rs.7/-, four banana bunches and ghee measuring “..............” annually. The recitals in Ext.A2 will show that the above said obligation to pay rent is divided equally among the four sharers. The trial court rightly held that if the north-south area is left out from partition, a portion of rent also would have been left out keeping the liability S.A.No.717 Of 1999 ::12:: in common. The recitals in Ext.A2 dividing the rent payable to the landlord into 4 would also go to show that the intention of the parties was to divide the entire property without leaving any portion. The trial court has rightly interpreted Exts.A1 & A2 and also appreciated the intention of the parties in Exts.A1 & A2 and therefore held that on a reading of Exts.A1 & A2 the intention of the parties was to partition and divide the entire property without leaving any portion. For a proper understanding of the case of the parties earliest document relied is Exts.A1 and A2. A proper reading of Exts.A1 and A2 will clinches the issue. 14. The trial court also noticed that the subsequent conduct would also show that the entire property was divided. On a reading of Exts.A3 to A6 would also show that right as per Ext.A1 was partitioned by Ext.A2 partition deed and the same right is being conveyed to the first plaintiff under Exts.A3 to A6. The boundaries in Exts.A3 to A6 are the same as in Ext.A2. 15. The trial court also noticed the further fact that the inconsistent nature of the case of the defendant will also contribute to strengthen the case of the plaintiff. Three sets of defendants have got three different contentions. None of them S.A.No.717 Of 1999 ::13:: have tendered oral evidence. The defendants were fighting among themselves and litigations are pending at the time of disposal of the suit. The trial court declared the title of the plaintiffs over the plaint schedule property and ordered recovery of possession of the property on the strength of their title. 16. The court also considered the contentions raised by some of the defendants that the right of the plaintiffs if any had lost by adverse possession and limitation since none of the defendants have examined themselves and produced any document in support of the said contentions. The trial court held that the contesting defendants failed to prove the plea of adverse possession and limitation. 17. The lower appellate court set aside the decree and judgment and dismissed the suit. It is very significant to note that the 5th defendant who claimed tenancy right over the northern portion of the entire property under an oral lease of 1958 did not prefer appeal. Instead he accepted the findings of the trial court and the decree passed in favour of the plaintiffs. The 5th defendant failed to substantiate his case of oral lease. The lower appellate court reversed the judgment and decree S.A.No.717 Of 1999 ::14:: based on an erroneous approach and wrong interpretation of Exts.A1 & A2 deeds. The appellate court ought to have declared the plaintiffs' title to the property on the basis of assignment deeds Exts.A3 to A6 and on the basis of Exts.A1 & A2 which would go to show that the plaintiffs have proved their title to the plaint schedule property. The reasons stated by the learned Judge that the plaintiffs did not get the entire property under Exts.A3 to A6 sale deeds are on the basis of wrong interpretation of Exts.A1 to A6, wrong appreciation of relevant materials and on the basis of consideration of irrelevant materials. The finding of the appellate court that the suit is filed after 12 years of sale deeds and therefore no decree for recovery can be granted is also factually and legally unsustainable. The lower appellate court did not notice the fact that the defendants failed to adduce any evidence to prove adverse possession. Therefore there is no justification for the court to dismiss the suit on a plea which is not proved by adducing evidence. The appellate court did not appreciate the fact that partition deeds specifically state the subject matter is the property obtained under Ext.A1 release deed and that under Ext.A2 rent fixed is for the entire property S.A.No.717 Of 1999 ::15:: and in the partition deed the entire liability to pay rent is equally divided among the executants. As rightly pointed out by the trial court if a portion of the northern side of the plaint schedule property is excluded in the partition deed the entire rent liability could not have been divided between the parties. The lower appellate court did not properly appreciate the facts and contents of Exts.A1, A2 and the assignment deeds namely, Exts.A3 to A6 in favour of the plaintiff. In the circumstances, the finding of the appellate court that the plaintiffs are having title and possession only over the plots A, B, C and D in Ext.C4 plan which lies on the southern side of the entire property as shown in Ext.C4 plan is unsustainable in law. The questions of law formulated are answered in the affirmative. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court are set aside and the judgment and decree passed by the trial court in O.S.No.19 of 1991 is restored. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-