Sasidharan Nair vs Santhamma and Kunjikutty Amma

Thomas P. Joseph, J.—These appeals arise from the common judgment and decree of learned Sub Judge, Thiruvananthapuram in A.S.

Nos. 114 and 115 of 2003, arising from the common judgment and decree in O.S. Nos. 84 of 1999 and 817 of 1999 of the Third Additional

Munsiff''s Court, Thiruvananthapuram. R.S.A. No. 674 of 2010 is preferred by the plaintiff in O.S. No. 84 of 1999. That is a suit for a declaration

of title and possession, fixation of boundary of the property referred to in the plaint schedule and for prohibitory injunction to restrain the

respondents from trespassing into the suit property.

R.S.A. No. 675 of 2010 is filed by the 1st defendant in O.S. No. 817 of 1999. That is a suit filed by the 1st respondent for similar reliefs as

above stated.

The learned Munsiff disposed of the suits jointly, granted declaration of title and possession and decreed O.S. No. 84 of 1999 in part. O.S. No.

817 of 1999 was decreed as prayed for. The first appellate court has confirmed the common judgment and decree of the trial court. Hence these

Second Appeals.

The following substantial questions of law are framed for a decision:

(i) Is not the finding of the appellate court vitiated in law as it was based on an error of record and mis-appreciation and non-appreciation of

evidence on record?

(ii) Has not the courts below totally misguided themselves in 2 suits seeking declaration of title and possession by treating the same as a suit for

partition?

(iii) Have not the courts below totally ignored the identification of the property based on Ext. B1 especially in a case of declaration of title where

the documents of title ought to have been given paramount importance?

(iv) Have not the courts below gone wrong in having accepted C1A plan and C1 report especially when the same is admittedly not measured in

terms of Ext. B1 document?

(v) Was not the courts below wrong in having accepted Ext. C1 and C1A plan especially when the Commissioner nor a Surveyor has a case that it

is not possible to identify A to F schedule properties based on the descriptions therein but have gone ahead at their own by identifying A to F

schedules by themselves without relying on the description contained in Ext. B1?

(vi) Was it proper on the part of the Commissioner and Surveyor to adjudicate upon as to how the property should be identified and the loss of

extent be adjusted?

(vii) Have not the courts below abdicated themselves from the duty cast on them by permitting the Surveyor and Commissioner to do as they

wanted and then later accept the report and plan?

(viii) When admittedly portions of property has been lost for widening of the road, should not have the courts below come to the conclusion that

the loss of land could have been only on the northern road and from the property scheduled as F in B1 which cannot be shared or distributed

between the plot owners?

(ix) Have not the courts below failed to appreciate the ruling reported in 1987 [1] KLT 714?

Ponnamma, predecessor-in-interest of the parties hereto, under the impression that she is the owner in possession of 9 cents in Sy. No. 1478/1

executed Ext. B1, partition deed. As per Ext. B1, partition deed one cent was retained by the said Ponnamma as A schedule while one cent was

allotted to the 2nd defendant as B schedule. The C schedule of Ext. B1, partition deed-two cents is allotted to Parameswaran Pillai. The D

schedule is 1.5 cents allotted to one Lalithamma. The E schedule is 1.5 cents allotted to the 1st respondent in R.S.A. No. 675 of 2010. The F

schedule-two cents is allotted to one Krishnankutty.

Ponnamma assigned the one cent described in the A schedule of Ext. B1 to the appellant as per Ext. A1, assignment deed No. 26.09.1970.

Appellant thus claims to be the owner in possession of one cent as per Exts. A1 and B1.

The 1st respondent (plaintiff in O.S. No. 817 of 1999) to whom the E schedule of Ext. B1, partition deed was allotted, purchased the D

schedule therein-1.5 cents-allotted to Lalithamma as per Ext. B2, assignment deed. Thus the plaintiff claimed to be the owner in possession of a

total extent of three cents.

Both sides wanted boundary to be fixed between their respective properties and on the apprehension that the opposite side may trespass into

his/their property, they prayed for a decree for prohibitory injunction.

The trial court with reference to Exts. C1 and C1(a), report and plan fixed the boundary of the suit properties and accordingly declared title and

possession of the properties. So far as O.S. No. 84 of 1999 is concerned, the prayer for prohibitory injunction was refused for the reason that the

cause of action for injunction was not proved by the appellant. In O.S. No. 817 of 1999, the trial court granted a decree as prayed for.

It is argued by the learned counsel for the appellant that the courts below are not correct in acting upon Exts. C1 and C1(a). According to the

learned counsel, the Advocate Commissioner has not measured the property with reference to Ext. B1 and hence Exts. C1 and C1(a) or the

boundary fixed accordingly cannot be accepted. The learned counsel argued that a reading of Ext. B1 would show that the house situated therein

falls within all the schedules referred to in Ext. B1 except the C and F schedules. But as per Ext. C1(a), no portion of the building comes within the

B schedule of Ext. B1. Instead, a portion of the building falls in F schedule. According to the learned counsel in the above circumstances the

measurement made by the Advocate Commissioner cannot be accepted. It is also argued that finding of the Advocate Commissioner that there is

deficit in the total extent of land disposed of by Ext. B1 cannot be accepted. According to the learned counsel, if the measurement made by the

Advocate Commissioner and the boundary fixed by the trial court and approved by the first appellate court are accepted, it would amount to a re-

partition of the 9 cents already effected as per Ext. B1, partition deed. In the circumstances it is contended that the judgment and decree of the

courts below cannot be sustained.

The learned counsel for the 1st respondent contends that it is clear from the measurement made by the Advocate Commissioner that there is

deficit in the total extent of land dealt with as per Ext. B1. Since Exts. A1 and B2 trace title to Ext. B1, the assignors of those documents could

have disposed of only the property they acquired as per Ext. B1. It is contended by the learned counsel that as per Exts. C1 and C1(a), there is

deficit in all the schedules of Ext. B1. It is further contended by the learned counsel that merely for the reason that though as per Ext. B1, the house

situated therein falls in all the schedules except the C and F, but Ext. C1(a) does not show that any portion of the building in B schedule or that a

portion of the building comes in the F schedule, Exts. C1 and C1(a) cannot be ignored. The learned counsel pointed out that there are survey

stones on the side of the property as revealed from Ext. C1 and C1(a) based on which measurement has been made and there is no reason to

reject Exts. C1 and C1(a).

So far as the prayer for injunction in O.S. No. 84 of 1999 is concerned, the learned counsel for the 1st respondent contends that the cause of

action pleaded for the grant of injunction is not established. It is also contended that, that part of the judgment and decree of the courts below

disallowing decree for injunction is not challenged in R.S.A. No. 674 of 2010.

The crucial question is whether Exts. C1 and C1(a) could be accepted or not. As per Exts. C1 and C1(a), the total extent of property

available is only 7.305 cents as against the nine cents partitioned as per Ext. B1. The Advocate Commissioner has identified and marked the A to

F schedules referred in Ext. B1, in Ext. C1(a). So far as the A schedule (suit property in O.S. No. 84 of 1999) in Ext. B1 is concerned, though the

extent is stated as one cent, the Advocate Commissioner has reported the extent of that item as only 0.805 cent (there being a deficit of 0.195 sq.

links). So far as E schedule of Ext. B1 allotted to the 1st respondent (plaintiff in O.S. No. 817 of 1999) and D schedule allotted as per Ext. B1 to

Lalitha which the 1st respondent got assignment as per Ext. B2 is concerned, the Advocate Commissioner has reported that the total extent of land

available under D and E schedules is only 2.5 cents (as against 3 cents referred to in Ext. B1).

It is true that in Ext. B1, there is reference to the house being situated in all the schedules dealt with therein except the C and F schedules. But

as per Exts. C1 and C1(a), no portion of that building falls in the B schedule of Ext. B1. Moreover, a portion of the building falls in the F schedule.

I must notice that there is no reliable evidence to show that at the time of Ext. B1, partition deed was entered into, the property available to the

late Ponnamma was measured. Exhibit B1 does not mention the side measurements of the properties dealt with thereunder. Therefore with

reference to the description of the house referred to in Ext. B1 or extent of property dealt with thereunder alone, Exts. C1 and C1(a) cannot be

attacked.

It is also seen from Ext. C1(a) that the Advocate Commissioner has found survey stones on the north-western and south-western corners of

the entire property. Also the Advocate Commissioner found survey stones on the west and east of the boundary line dividing A and D schedules.

Similar survey stones are seen on the east and west of the boundary line dividing D, E and F schedules. In other words, it is based on the survey

stones that the Advocate Commissioner has identified the property in Ext. B1.

In the above circumstances contention of the appellant that the measurement is not based on Ext. B1 and that the Advocate Commissioner

should have found the extent of property referred to in the A schedule of Ext. B1 (covered by Ext. A1 and referred to the schedule in the plaint

(O.S. No. 84 of 1999) as one cent and not 0.805 cent cannot be ignored. I must also notice that the deficit found so far as the appellant is

concerned, is only 0.195 sq. links. I sated that similar deficit is there in the property of the 1st respondent also, whether it is E schedule of Ext. B1

or the D schedule thereunder, acquired by the 1st respondent as per Ext. B2. In that view of the matter, I do not find any reason to disturb the

finding entered by the courts below based on Exts. C1 and C1(a), the boundary fixed thereby and the title and possession declared based on Exts.

C1 and C1(a).

It is seen that a portion of the house falls in the A schedule of Ext. B1 acquired by the appellant as per Ext. A1. Appellant and the 1st

respondent have right over the portion of the said building falling in their respective properties. I make it clear that it is open to the appellant and the

1st respondent to deal with that portion of the building falling in their respective properties as ascertained by the Advocate Commissioner in Ext.

C1(a) provided it does not affect the structural soundness of the building or interfere with the right, enjoyment and convenience of the opposite

party. The substantial questions of law framed are answered as above.

With the observation and direction made above, these Second Appeals are dismissed.

All pending Interlocutory Applications will stand dismissed.