Sadasivan Nair vs Krishnan Nair

Justice Thomas P. Joseph

The plaintiff in O.S. No. 2949 of 1992 of the Principal Munsiff''s Court, Thiruvananthapuram is aggrieved by the dismissal of the suit for declaration of title, recovery of possession, fixation of boundary and prohibitory injunction, confirmed by the Principal Sub Court, Thiruvananthapuram in A.S. No. 25 of 2006. According to the appellant/plaintiff, the plaint A schedule property belongs to him as per Ext. A4, gift deed No. 1479 of 1967 executed by his father. The appellant executed settlement deed to his children concerning 8 > cents. from the plaint A schedule. The respondent/defendant has property on the east of the plaint B schedule. It is alleged that the respondent has trespassed into the suit property. Hence the suit.

The respondent contended that description of the plaint A and B schedules is not correct and that the appellant did not get the entire plaint A schedule as per Ext. A4, gift deed. The appellant gifted seven cents to his wife. The plaint A schedule forms part of the 4.39 acres. There is well defined physical boundary available at spot and hence there is no necessity to fix the boundary. The allegation of trespass was also denied.

The trial court initially dismissed the suit against which the appellant filed A.S. No. 179 of 1997. The first appellate court allowed that appeal by way of remand directing the trial court to remit the report and plan to the Advocate Commissioner and obtain a fresh report and plan. The property was to be measured with reference to Ext. A4, gift deed, survey plan, etc. The first appellate court also directed the trial court to consider the plea of adverse possession.

The trial court after remand directed the parties to obtain the survey plan from the Taluk Office. The appellant produced a letter from the Tahsildar which stated that no such survey plan is available in respect of the suit property. Hence the trial court directed the Advocate Commissioner to measure the property with reference to Ext. A4. Accordingly the Advocate Commissioner submitted Exts. C2 and C2(a), report and plan. The trial court after consideration of the evidence again came to the conclusion that the appellant is not entitled to the reliefs prayed for and consequently dismissed the suit. That decision is confirmed by the first appellate court. Hence the second appeal.

The learned counsel for the appellant has contended that measurement of the properties as stated in Exts. C2 and C2(a) are not correct. It is also contended that the plea of adverse possession was not properly considered.

In Ext. C1(b), plan (obtained before the remand) the Taluk Surveyor after measurement identified and located the plaint A schedule property as ABCDEFGQHJR plot measuring 10.836 cents. Out of that, the plaint B schedule property found to be in the possession of the respondent was identified and located as plot QHJR, measuring 2.461 cents. Plot HLKJ in survey No. 1897 is the property to which the respondent was found entitled. PW 2, the Advocate Commissioner has stated that he had not identified or located the property answering the descriptions in the plaint A and B schedules. He has also stated that 16 cents was not available on the west of the three cents belonging to the respondent and comprised in survey No. 1897.

Ext. A4, gift deed relied on by the appellant states that the donor had possession of only seven cents out of the 16 cents. A direction was given to the donee to recover possession of the remaining nine cents. Hence it is clear that at the time of Ext. A4, gift deed the appellant had not got possession of the 16 cent referred therein. PW 1 states that he recovered possession of the nine cents within one week of execution of Ext. A4 but, that was not supported by any evidence. Merely because the donor has stated in Ext. A4 that the appellant can get possession of nine cents more, it does not mean that the donor or donee got title over the entire 16 cents referred in Ext. A4. The evidence of PW 2 that there was no such property as described in Ext. A4 on the west of the three cents belonging to the respondent also assumes importance. Thus the appellant failed to prove the title and possession claimed over the plaint B schedule.

Though, the first appellate court in the judgment in A.S. No. 179 of 1997 had directed measurement of the properties with reference to the survey plan as well, the letter produced by the appellant in the trial court would show that no survey plan was available. Therefore, the only course available was to measure the properties with reference to Ext. A4.

The trial court (after remand of the case) has observed that no where in the plaint the appellant has a case that he has recovered possession of the nine cents referred to in Ext. A4, gift deed and that there is no property available at spot answering the descriptions in the plaint A and B schedules. DW 3, the Surveyor who prepared Ext. C2(a) after measuring the property with reference to Ext. A4 stated that the property was only nine cents. There was well demarcated boundary on the eastern side of the said property. Part of the plaint B schedule is in the possession of the respondent - 3.285 cents. The property on the further east admittedly belonged to the respondent.

Ext. A2 is the gift deed in favour of the respondent and concerns 15 cents. 11 cents on the east was sold by the respondent as per Ext. A5 which the Advocate Commissioner has identified in Ext. C2(a) as plot GHIF. The remaining four cents is the plot, IFEJ. Three cents acquired by the respondent as per Ext. A3 is identified as JEBD. The property on the further west is 3.285 cents which is identified as BIDCWUY. There was no evidence to show that the appellant got title over the said 3.285 cents. As per Exts. C2 and C2(a) the entitlement of the appellant was only nine cents. Since the prayer is for recovery of possession of the suit property, the question of the appellant proving adverse possession does not arise. So far as fixation of boundary is concerned, the evidence revealed that there is a well defined boundary. Therefore, fixation of boundary was not required. In the above circumstances, courts below are right in disallowing the reliefs prayed for by the appellant. The judgment and decree of the courts below involve no substantial question of law.

Second Appeal is dismissed.

All pending interlocutory applications will stand dismissed.