IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 RSA.No. 1175 of 2011() ---------------------- AS.137/2005 of PRINCIPAL SUB COURT,ATTINGAL OS.262/2001 of MUNSIFF COURT,VARKALA .................... APPELLANTS/APPELLANTS-DEFENDANTS ---------------------------------------------------- 1. GIRIJA, W/O LATE KARTHIKEYAN AGED 59 YEARS, KRISHNA BHAVAN, PUTHEN CHANTHA, VETTOOR VILLAGE, NOW RESIDING AT KARTHIKA, PUTHENCHANTHA, VARKALA. 2. BINDU, D/O GIRIJA, AGED 37 YEARS, KRISHNA BHAVAN, PUTHEN CHANTHA, VETTOOR VILLAGE, NOW RESIDING AT KARTHIKA, PUTHENCHANTHA, VARKALA. 3. BINU, S/O LATE KARTHIKEYAN AGED 35 YEARS, KRISHNA BHAVAN, PUTHENCHANTHA,VETTOOR VILLAGE, NOW RESIDING AT KARTHIKA, PUTHENCHANTHA, VARKALA. ¦ BY ADV. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): --------------- SHRI SURENDRAN, S/O KUNJU, AGED 81 YEARS, VALSALA BHAVAN, MAITHANAM. FROM ELAMBANAZHIKATHU VEEDU, CHILAKUR (PO) CHILAKKOOR DESOM,VARKALA VILLAGE-695141. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1175 of 2011 ............................................ DATED THIS THE 21st DAY OF NOVEMBER, 2011 JUDGMENT On formulating the substantial question of law, learned senior counsel appearing for appellants and respondent submitted that if the identification is not proper, the appeal be disposed of without calling for records of the courts below. 2. Learned senior counsel appearing for the appellant and learned counsel appearing for the respondent were heard. Respondent plaintiff is claiming title to plaint A schedule property under Ext.A1 sale deed contending that a portion of the property having an extent of 13 cents was alienated under Ext.A4 and the balance covered under Ext.A1 is the plaint A schedule property. Respondent in the written statement contended that he is in possession of the entire plaint A and B schedule properties under Ext.B1 and B2 sale deeds. Appellants the defendants admitted that a portion of the property having an extent of six cents being northern portion obtained under Ext.B1 and B2 was alienated by them, though the document was not produced. Courts below RSA 1175/2011 2 accepting Ext.C1 report and C1(a) plan, found that plot CDEFGHIJC is the 13 cents alienated by respondent under Ext.A4 sale deed and plot BMTKCB is the remaining property covered under Ext.A1 sale deed and the property to its west is the property belonging to appellants and declared his title and possession and fixed the boundary in accordance with Ext.C1(a) plan. 3. When respondent is setting up title under Ext.A1, which lies to the east of the plaint B schedule property belonging to the appellants and appellants are claiming title under Ext.B1 and B2, courts below should not have fixed the boundary separating the two properties, without identifying the property covered under Ext.B1 and B2, on the unilaterial identification based on Ext.A1. In such circumstances, it is clear that the decree granted by the courts below is without proper identification. Hence the boundary fixed cannot be sustained. It is also clear from Ext.C1(a) plan that point `BM' as drawn in the plan is not a straight line. The western boundary of plaint A schedule property, as fixed by the Commissioner in Ext.C1(a) plan and accepted by the courts below, proceeds towards the south from point 'B' and at a RSA 1175/2011 3 particular point (which is not separately shown by any identifying letter) and then turns to the west and joins the point `M'. If the plan is to be proper, necessarily that point is to be specifically identified. If on proper identification the properties based on Ext.A1 as well as Ext.B1 and B2 it is found that plaint A schedule property, as identified by the Commissioner, is in the possession of the plaintiff, necessarily a decree is to be granted. On the other hand, if the plaintiff is not in possession of any portion of the property as identified, in the absence of a claim for recovery of possession, the boundary cannot be fixed including that portion of the property with the remaining property of the plaintiff. In that case, there is no necessity for considering the question whether title of the plaintiff is barred by adverse possession or not, unless plaint is amended seeking a decree for recovery of possession. 4. In the result, appeal is allowed. The decree and judgment passed by Munsiff, Varkala in O.S.262 of 2001 as confirmed by Sub Court, Attingal in A.S.137 of 2005 is set aside. O.S.262 of 2001 is restored to file and remanded to learned Munsiff for fresh disposal. Learned Munsiff shall direct the Commissioner, who RSA 1175/2011 4 submitted Ext.C1 report and C1(a) plan, if available, to identify the plaint B schedule property also with reference to Ext.B1 and B2 title deeds along with identifying plaint A schedule property based on Ext.A1 sale deed, excluding the property covered under Ext.A4. Plaintiff is permitted to file an application for that purpose and if filed, learned Munsiff shall appoint the same Commissioner, if available and if not, any other experienced Commissioner. Parties are permitted to adduce further evidence, if they so choose. Learned Munsiff is directed to dispose the suit expeditiously. Parties are directed to appear before Munsiff, Varkala on 14.12.2011. M.SASIDHARAN NAMBIAR, JUDGE lgk