IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 RSA.No. 1059 of 2004(A) ------------------------------------- AS.NO. 12/2000 of PRL.SUB COURT, KOZHIKODE OS.NO. 439/1985 of PRL.MUNSIFF COURT., KOZHIKODE-II .................... APPELLANTS/DEFENDANTS: ------------------------------------------ 1. M/S. MANUEL SONS, A FIRM HAVING ITS OFFICE, SITUATED AT KASBA AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 2. P.M. ACHAYI MANUEL, SON OF MANUEL, PARTNER, M/S. MANUEL SONS, KASABA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 3. P.M. GEORGE, SON OF MANUEL, PARTNER, M/S. MANUEL SONS, KASABA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 4. P.M. ANTONY, SON OF MANUEL, PARTNER, M/S. MANUEL SONS, KASABA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 5. P.M. UDHUPPU, SON OF MANUEL, PARTNER, M/S. MANUEL SONS, KASABA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 6. P.M. THOMAS, SON OF MANUEL, PARTNER, M/S. MANUEL SONS, KASABA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 7. P.M. JOSE, SON OF MANUEL, PARTNER, M/S. MANUEL SONS, KASABA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 8. ACHAYI MANUEL, W/O. MANUEL, RESIDING AT KASABA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.RAJAN VELLOTH SRI.SAIJO HASSAN SRI.A.S.SABU SRI.A.G.GIRISH KUMAR sts 2/- R.S.A.NO.1059/2004 -2- RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------------------------------------ PATTOLATH MAMMEDKOYA, SON OF KUNHALAN, RESIDING AT KASABA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.MILLU DANDAPANI THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO. 1059 OF 2004 ............................................ DATED THIS THE 25th DAY OF MAY, 2011 JUDGMENT Defendants in O.S.439 of 1989 on the file of Munsiff Court, Kozhikode-II are the appellants. Respondent is the plaintiff. Respondent instituted the suit seeking a decree for recovery of possession and prohibitory injunction contending that plaint A and B schedule properties belonged to him as per Ext.A1 assignment deed and Ext.A2 release deed and plaint B schedule property is part of plaint A schedule property which was trespassed upon by the defendants and they have no right over the same and therefore the wall constructed annexing a portion of plaint A schedule property is to be evicted and respondent is entitled to recover possession of the same on the strength of his title and the appellants are to be restrained by a permanent prohibitory injunction from further trespass. Appellants resisted the suit contending that description of plaint B schedule property is not correct and plaint B schedule property cannot be identified from the description given in the plaint and plaint B schedule RSA 1059/2004 2 property is not part of plaint A schedule property and appellants are constructing the building only in the property belonging to them and there was no trespass and therefore the suit is to be dismissed. Subsequently, an additional written statement was filed contending that plaint A schedule property is a karaima house and the land in which it is situate is comprised in T.S.No.17-5-117 and respondent has title only to that property and the property of appellants is in T.S.17-5-119/3 and respondents have no right or title to that property. 2. Learned Munsiff originally dismissed the suit and respondent challenged the judgment before Sub Court, Kozhikode as A.S.91 of 1995. Learned Sub Judge found that the property of the respondent is in Survey No.119/3 and the property of appellants is in Survey No.135/2A and the dispute is with regard to the actual survey boundary separating the properties and the Commissioner in Ext.C1 report or C2 and C4 plans did not properly identify the property and therefore set aside the judgment of the trial court and remanded the suit for fresh disposal granting opportunity to take out a fresh commission to fix the identity of the property of the respondent in R.S.119/3 RSA 1059/2004 3 providing that if appellants are in possession of any portion of that property, respondent is entitled to recover possession of the same. Subsequent to the remand, a Commissioner was appointed and the Commissioner submitted Ext.C5 report, Exts.C6 and C7 plans along with Ext.C8 plan prepared by the Town Surveyor. No objection was filed to the said identification, demarcation or the identity of the properties shown in Ext.C6 to C8 plan. As per Exts.C5 to C8 report and plans, appellants are in possession of the properties in T.S.135/2A and T.S.135/2C which lies to the south of the property in R.S.119/3 and though as per the documents appellants are only entitled to 93 cents, they are now in possession of 97 cents. It was also found that though under Ext.A1 and A2, respondent is entitled to 3 cents of land, the property now in his possession is only 2.25 cents. It was also reported that a wall has been constructed enclosing a small portion of the property in R.S.119/3 by the appellants and that encroached portion is in R.S.119/3. The Commissioner has demarcated that encroached portion in Ext.C7 plan. Subsequent to the filing of Ext.C5 to C8, respondent got the plaint amended and the description of plaint B schedule property is made as RSA 1059/2004 4 shown by the Commissioner in Ext.C7 plan. No oral evidence was adduced subsequent to the remand. Learned Munsiff on the evidence found that the northern wall of the properties in R.S.135/2A and 135/2C was constructed enclosing a small strip of land having a width of 9 inches and length of 22.75 feet and that encroached portion is in R.S.119/3. Learned Munsiff also found that the property of the respondent is in R.S.119/3 while that of the appellants is in R.S.No.135/2A and 135/2C. Learned Munsiff therefore found that plaint B schedule property forms part of plaint A schedule property and respondent has title to the property and he is entitled to recover possession of the same on the strength of title. The suit was decreed. Appellants challenged the judgment before Sub Court, Kozhikode in A.S.No.12 of 2000. 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. Second appeal was admitted formulating the following substantial questions of law. i) Whether the suit for recovery could be decreed without identifying the extent of the recoverable RSA 1059/2004 5 portion ? ii) Whether a commission report which has not identified the extent of recoverable portion could be solely relied on for the purpose of decreeing a suit for recovery ? iii) Whether more extent of property than due under the possession of the plaintiff on the basis of his titles could be conveyed to the plaintiff ? iv) Whether a suit be decreed granting owner and possession of more property than to which the plaintiff is entitled as per the title deeds ? v) Whether a suit can be decreed solely on the basis of one commission report when there are much discrepancies in the various commission reports ? vi) Whether the plaintiff has proved title over the plaint B schedule property ? vii) Whether a commission report can create a new schedule for the plaint contrary to the one described in the plaint ? 4. Learned counsel appearing for appellants and the respondent were heard. The argument of the learned counsel appearing for appellants is that the courts below did not consider the question whether the demarcating boundary between RSA 1059/2004 6 R.S.119/3 and R.S.135/2A and 2C was properly demarcated by the Commissioner. Learned counsel pointed out that Ext.C5 report shows that the property now in possession of the appellants is 97 cents in R.S.No.135/2A and 135/2C, though as per the documents, he is entitled to only 93 cents and the property of the respondent is only in R.S.119/3 and therefore respondent is not entitled to claim any portion of the property in the possession of appellants is R.S.135/2A and 135/2C. Learned counsel argued that in such circumstances, the decree for recovery of possession granted is not sustainable. Learned counsel argued that from the description of the plaint and Ext.C6 and C8 plans, plaint B schedule property cannot be identified and a decree cannot be granted in respect of an unidentifiable property. 5. Learned counsel appearing for the respondent pointed out that even though the remand was for specific purpose of identifying the demarcating boundary between R.S.119/3 which lies to north and R.S.135/2A and 2C which lie to the south and the Commissioner identified the property with the assistance of Surveyor and submitted Ext.C5 to C8 report and plans, no RSA 1059/2004 7 objection was filed to the identification or the correctness of the plan and it is therefore argued that when the Commissioner has identified the properties and found that a small strip of land, which lies immediately to the north of the southern boundary of plaint A schedule property was encroached upon by the appellants by constructing a wall and it is found that the said wall is within R.S.119/3, the decree granted is perfectly legal and correct. 6. It is not disputed by the appellants that they have no right or title to any portion of the property comprised in R.S.119/3. Appellants are claiming right and title and even possession only in the property comprised in R.S.135/2A and 135/2C. Ext.C6 and C8 plans along with Ext.C5 report establish that the Commissioner has identified the re-survey boundary line separating R.S.119/3 on the north and R.S.135/2A, 2B and 2C on the south and shown the boundary line in Ext.C6 to C8 plans. The appellants did not file any objection to the said identification, demarcation or correctness of the plans. Therefore it is not open to the appellants now to contend that the property as identified by the Commissioner and shown in Ext.C6 to C8 is not correct. RSA 1059/2004 8 The Commissioner has found that the property obtained by the respondent under Ext.A1 and A2 and now in the possession of the respondent is the orange coloured plot shown in Ext.C6 plan which is developed in Ext.C7 plan. The Commissioner also found that the northern wall of the property in R.S.135/2A and 2C was constructed enclosing a small strip of land in R.S.119/3. It has been specifically reported that a portion of the wall is in R.S.119/3. That encroached portion by construction of the wall is separately shown in Ext.C7 plan having a width of 9 inches and length of 22.75 feet, a rectangular plot. The dispute is actually with respect to this plot. As rightly found by the courts below, when identification and demarcation made by the Commissioner as well as the Surveyor and shown in Ext.C6 to C8 plans are not disputed and the Commissioner found that the said construction of a portion of the wall is in R.S.119/3, the finding of the courts below that respondent has title to the said portion viz, plaint B schedule property, is perfectly correct. Though a question was formulated with regard to the identification of the property to be recovered, evidently the argument is based on the original plaint, without taking note of the amendment carried out subsequent to RSA 1059/2004 9 the filing of Ext.C5 to C8. As stated earlier, subsequent to the filing of Ext.C5 to C8 and the identification of the plaint B schedule property, plaint was amended. The plaint B schedule property as now exists, is as identified by the Commissioner in Ext.C7 plan. Therefore, it cannot be said that the property is not identifiable and therefore a decree for recovery of possession cannot be granted as claimed by the appellants. 7. In such circumstances, I find no merit in the appeal. Appeal is dismissed. But it is made clear that at the time of execution of the decree, the southern boundary of R.S.119/3 as demarcated by the Commissioner and the Surveyor in Ext.C6 and C8 plans, is to be first identified and then plaint B schedule property is to be identified as shown in Ext.C7 plan and the respondent is entitled to take delivery of the said property. It is also made clear that the property is to be fixed as shown in Ext.C7 plan. M.SASIDHARAN NAMBIAR, JUDGE lgk