Bhaskaran vs Reneesh Daniel

A. Badharudeen, J

Defendants 1 to 5 and 6 in O.S.No.5273/2017 on the files of Principal Munsiff's Court, Thrissur have filed this Regular Second Appeal under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, challenging decree and judgment in the above suit dated 28.02.2019 and also decree and judgment in A.S.No.104/2019 dated 24.01.2020 on the files of 2nd Additional Sub Court, Thrissur. Appellants are defendants 1 to 5 as well as the 6th defendant.

Heard the learned counsel appearing for the respondent/plaintiff in detail.

The parties in this appeal will be referred as 'plaintiff', 'defendants', for convenience.

Plaintiff claimed title in respect of 10.5 cents of property on the strength of sale deed Nos.7707/2005 and 1590/2006 of S.R.O. Thrissur. According to the plaintiff, the properties of defendants 1 to 5 are located on the immediate western side of the plaint schedule property and the property of the 6th defendant is located on the western side of the property of defendants 1 to 5. Before partition, the properties of the defendants were lied together. Earlier there existed concrete posts having 4 feet height for separating the plaint schedule property with that of the defendants' property. The said boundary was demolished and the same necessitated filing of the present suit for fixation of the boundary of the plaint schedule property.

Defendants entered appearance and filed written statement and counter claim asserting title and possession over 16.250 cents of property as per the partition deed No.799/1961.

The trial court raised necessary issues and recorded the evidence. PW1 examined and Exts.A1 to A9 were marked on the side of the plaintiff. DW1 to DW5 examined and Exts.B1 to B7 also were marked on the side of the defendants. CW1 and CW2 examined and Exts.C1 and C2 series were also marked. On appreciation of evidence, after having addressed the rival arguments advanced by both sides, the trial court decreed the suit and dismissed the counter claim. The terms of the decree are as under;

“In the result, the counter claim is dismissed and the suit is decreed as follows:-

The plaintiff is entitled to fixation of western boundary of the plaint schedule property as per Ext.C2 series reports and sketchs.

The western boundary of the plaint schedule property is fixed as the green coloured line marked in Ext.C2(b) sketch.

The defendants are restrained by way of permanent prohibitory injunction from trespassing into the plaint schedule property and causing any obstruction to the plaintiff in constructing compound wall through the western boundary line of the plaint schedule property fixed by the court as per Ext.C2(b) sketch as above mentioned.

Ext.C2 series reports and sketches shall form part of the decree.

The parties are directed to bear their respective costs.”

The defendants challenged the verdict of the trial court before the District Court vide A.S.No.104/2019. The learned District Judge dismissed the appeal and confirmed the verdict of the trial court.

As per order dated 18.11.2020, this Court admitted this Regular Second Appeal on the substantial questions of law (i) to (iii) formulated in the memorandum of appeal. Though it is mandatory for the court to formulate substantial question of law before admitting the appeal, this Court admitted this appeal on the basis of the substantial questions of law suggested by the appellants/defendants. Therefore, the substantial questions of law would require formulation at the instance of this Court. Accordingly, the following substantial questions of law formulated for consideration;

Whether the courts below erred in acting upon Ext.C2 series report to fix the boundary of the plaint schedule property with that of the defendants' property ?

Whether the commissioner and Surveyor wrongly measured the properties for the purpose of marking its boundaries on misreading the title documents of the defendants ?

Whether the courts below granted decree in favour of the plaintiff without defining the property properly?

While impeaching the concurrent verdicts of the trial court as well as the appellate court, the learned counsel for defendants submitted that going by Ext.C2 series report, it is emphatically clear that the commissioner did not locate the property of the plaintiff in accordance with their title deeds, viz sale deed Nos.7707/2005 and 1590/2006 marked as Exts.A1 and A2 respectively. Further, no measurement effected in tune with the prior documents of Exts.A1 and A2, though the copies of the same were produced as Exts.A3 and A4. According to the learned counsel for defendants, the commissioner and the surveyor located the property of 10.5 cents in favour of plaintiff and adjusted the properties remaining as the property of the defendants' and thereby materially reduced the extent of the defendants' property. According to the learned counsel for defendants 1 to 6, as per I.A.No.19310/2018, defendants filed petition to set aside the commission report and remit back the same on the specific assertion that even though the properties of the defendants originally derivated from partition deed No.799/1961, marked as Ext.A6, comes to an extent of 16.250 cents, subsequently as per Ext.A9 partition deed executed between the defendants and on measurement, it was found that the property comes to an extent of 15.5 cents. But the commissioner and surveyor shown the defendants' property to 14.875 cents instead of 15.5 cents. The court below considered the above petition along with the suit and finally dismissed the same and pronounced the judgment. According to the learned counsel for the plaintiff, the said objection still survives and same requires consideration by this Court and if so, the shortage in extent in as much as the property of the defendants' could be very well addressed. The learned counsel read out the depositions of DW1 and DW2 at length along with the report of the surveyor form part of the Ext.C2 series to establish the said point.

Dispelling this argument, the learned counsel for the plaintiff submitted that as per Ext.C2 series the measurement was effected referring the title deeds of the parties. However, the title deeds of the plaintiff or its prior title deeds do not show the measurements. At the same time, the title deeds marked as Exts.A6 and A9 would show 'kole' measurements and during the cross examination, the Surveyor specifically detailed measurement on the said basis. According to the learned counsel for the plaintiff, as per Ext.C2(b) plan, apart from showing 14.875 cents as the property of defendants, the Commissioner located property form part of the property of defendants in possession of third parties that includes c,r,z plot comes to 0.325 cents and also 0.950 cents on the northern boundary. According to the learned counsel for the plaintiff, if 14.750 cents+0.325 cents+0.950 cents taken together, there is no shortage in the property of the defendants. Further, the Commissioner also found 0.675 cents of property in excess insofar as the 6th defendant is also concerned. Therefore, the trial court rightly granted decree by fixing the western boundary of the plaint schedule property as per Ext.C2 series as the green colored line.

The learned counsel for defendants 1 to 6 submitted that as per Ext.C2(b) plan, apart from green coloured line, an yellow coloured line, viz, 'a,y,c' also is shown and if the boundary is fixed as 'a,y,c' line, though the property of the plaintiffs would be reduced to 9.875, the property of the defendants as per the title deed would be available to the defendants.

While addressing the rival contentions, I am inclined to refer the Ext.C2(b) plan in consonance with the report of the surveyor appended therein. The report of the surveyor shows that 'a,b,c,d,e,f,g,h' plot, having an extent of 10.500 cents is the property covered by Exts.A1 to A4. A schedule property in Ext.A6 partition deed is located as j,k,l,m,n,o, having an extent of 13.350 cents and it is reported by the Surveyor further that as per B schedule to Ext.A6, the prior owners of the defendants obtained 14.750 cents and the same is located as 'm,n,o,p,q,r' plot. According to the Surveyor, eventhough 16.250 cents of property is shown as the extent in Ext.A6, on measurement, only 14.750 cents could be found. As per the report of the Surveyor, it is difficult to fix boundaries based on Ext.A6 since the extent of land did not tally with the side measurements. The Commissioner also reported 0.325 cents as 'c,r,z' plot in possession of third party, not sharing the boundary of the plaintiff. On the northern side, 0.950 cents also located as the property of defendants. On perusal of the trial court judgment, in Paragraph No.21, learned Munsiff addressed the contentions raised by the defendants in I.A.No.19310/2018 and the same was dismissed. Paragraph No.21 of the trail court judgment is as under;

"21. According to the plaintiff who deposed as PW1, the plaint schedule property was obtained by him as per registered sale deeds bearing Nos. 7707/2005 and 1590/2006 respectively and the property contained in the above two deeds are lying as a single plot within the same boundaries. While Ext. A3 sale deed No.1198/1986 is the prior deed to Ext. Al sale deed, Ext. A4 registered sale deed bearing No. 1845/1981 is the prior deed to Ext. A2 sale deed. Ext. A4 is the basic tax receipt dated 12.05.2012 which would reveal the possession of the plaint schedule property by the plaintiff subsequent to its purchase as per Ext. Al and Ext. A2. It is submitted by the plaintiff that the defendants have their property on the western boundary of the plaint schedule property, Ext.A9 Is the registered partition deed bearing No.3642/2007, based on which, the defendants 1 to 5 have obtained right and possession over their property on the western boundary of the plaint schedule property. Ext. A6 registered partition deed bearing No. 799/1961 is the prior deed to Ext. A9, based on which, the predecessor of the defendants 1 to S namely Sri. Ayyappan had obtained right over the B schedule property in the said deed which in turn is partitioned as per Ext. A9 by the defendants 1 to 5, The A schedule property in Ext. A6 partition deed was allotted in favour of Sri. Velukutty who is the predecessor of the 6th defendant, The commissioner who had inspected the plaint schedule property and the property of the defendants has reported as per Ext. C2 series reports and plans that the properties belonging to the plaintiffs and defendants were measured based on their respective title deeds as above mentioned and based on the possession as seen on the round, The commissioner and taluk surveyor as per Ext.C2 series has carried out measurement based on Ext. A6 prior deed pertaining to the property of the defendants also and mentioned the details of properties as contained therein. The contention of the defendants in 1.A.19310/18 that Ext. C2 series reports and plans are to be remitted back to the commissioner as the same does not contain the required details for adjudicating the present suit and which in turn is considered along with the suit, is to be dismissed is the submission of the plaintiff. It is based on the direction of the Hon'ble High Court in OP(c)No.425/2018 that the application filed for issuance of commission as I.A.743/2018 was allowed by this court. The advocate commissioner and taluk surveyor have carried out measurement of the property of the plaintiff and defendants after issuing notice to both parties and in the presence of counsel for both parties as can be seen from Ext. C2 report. The claim of the defendants that their property is having an extent of 15.736 cents and the commissioner ought to have measured and marked the said property as mentioned in I.A.19310/2018 cannot be held Sustainable. The counter claim A schedule mentioned in the counter claim as the property of the defendants 1 to 5 with respect to which boundary is sought to be fixed mentions the extent of the property of the defendants as 16 1/4 cents. Neither in Ext.A6, nor in Ext.A9 partition deed executed based on Ext.A6, there is any mention regarding any property of the defendants 1 to 5 having an extent of 15.736 cents. As per Ext.A9, the extent of the property of the defendants 1 to 5 partitioned as per the same is only 15.50 cents, That being so, the case of the defendants that Ext. C2 series commissioner report and plan are remitted back to the commissioner for the purpose of measuring and marking 15.736 cents of land based on Ext.A6 prior partition deed is impossible and unsustainable. It is deposed by the surveyor as CW2 that on conducting measurement, he had not seen any property having an extent of 15.736 cents in the the defendants. Thereby the defendants have failed to substantiate any grounds for remitting Ext.C2 series reports and plans. As the commissioner and surveyor as per Ext. C2 reports and C2 series plans have measured and marked thé plaint schedule property and the defendants' property based on the respective title deeds of the parties and based on their possession, the western boundary of the plaint Schedule property which is the eastern boundary of the counter claim A Schedule property of the defendants 1 to 5 is to be fixed based on Ext.C2 series reports and plans, as the green line marked in Ext. C2(a) and C2(b) series sketches. It can be seen from Ext. A7 complaint dated 07.12.2017 coupled with Ext.A8 receipt issued by Thrissur East Police Station to the plaintiff dated 07.12.2017 that the defendants had destroyed the boundary wall separating the plaint schedule property from the property of the defendants on its west and had attempted to construct a compound wall in the incorrect boundary encroaching into the property of the plaintiff. So also, it is reported in Ext.Cl report and C2 series reports and plans that presently there does not exist any demarcating boundary for separating the plaint schedule property from the property of the defendants on its west. Therefore the plaintiff seeks fixation of western boundary of the plaint schedule property as the green line marked in Ext. C2(a) sketch as well as permanent prohibitory injunction restraining the defendants from encroaching into the plaint schedule property and causing any obstruction to the plaintiff in constructing compound wall on the western boundary of the plaint schedule property."

In Paragraph No.23 also, the trial court addressed the contentions and finally dismissed I.A.No.19310/2018. Though these contentions raised before the Appellate court, the Appellate court also negatived the said contentions and confirmed the finding of the trial court.

In this case, even though it is argued by the learned counsel for defendants that the Commissioner and Surveyor located the plaintiff's property adjusting the same to 10.5 cents and allotted the remaining extent as the property of the defendants, on perusal of the Ext.C2 series with reference to the evidence tendered by CW1 and CW2, the Commissioner and Surveyor, the property of the plaintiff is located as 10.5 cents. Whereas, the property of the defendants is located as 13.350 cents. At the same time, 0.325 cents plus 0.950 cents were shown as the property of the defendants in possession of third parties. Thus, the Commissioner located 14.625 (13.350+0.325+0.950) as the total extent of property belong to the defendants.

In the case at hand, though in Ext.A6, the property of the defendants is shown as 16.250 cents, on measurement, the same would come to 14.750 cents, as per Ext.A9. On calculating the properties allotted to each sharers as per Ext.A9 also, the property is not in excess of 14.750 cents. Though the Commissioner located 13.350 cents alone in Ext.C2(b) plan, as the property in possession of the defendants, the Commissioner found excess land in possession of third parties and the total extent of the property covered by Exts.A6 and A9 is located as 14.625. Therefore, it is to be held that, on the strength of the respective title deeds, the Commissioner and surveyor located the properties and fixed the western boundary of the plaint schedule property as the green coloured line, as per Ext.C2 series report and plan. The said fixation of boundary is perfectly in order and therefore, the verdict of the trial court, granting decree as above, is well justified, as concurred by the appellate court, as well. Therefore, it has to be held that the courts below did not err in acting upon Ext.C2 series report to fix the western boundary and there is no element of misreading of evidence also. In fact, the properties were well identified as per the title deeds.

In the result, this appeal fails and is dismissed.

All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed.

Registry shall inform this matter to the trial court as well as the appellate court, forthwith.