IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 450 of 2010()
1. RAJESWARI, W/O.BALAN PEECHIYODE,
... Petitioner
Vs
1. SURESH, S/O.KITTA, PEECHIYODE,
... Respondent
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.O.RAMACHANDRAN NAMBIAR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :30/06/2010
O R D E R
P.BHAVADASAN, J.
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R.S.A No. 450 of 2010
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Dated this the 30th June, 2010
J U D G M E N T
The defendant in O.S No.280/99 before the Munsiff’s
Court, Chittur, who suffered a decree at the hands of the
trial court which was confirmed in appeal is the appellant
before this Court. The parties and facts hereinafter
referred to as are available before the trial court.
2. The subject matter of this appeal relates to a
pathway which is shown as plaint B schedule property.
Plaintiff obtained plaint A schedule property as per
Ext.A1 document. According to him, the plaint B schedule
property is the portion of plaint A schedule and it lies well
separated from the properties of the defendant. The
defendant trespassed into B schedule property and put up
a fence. In spite of demand, defendant did not remove the
fence. The suit was one for injunction initially but was
amended later for declaration, recovery of possession and
for other reliefs including mandatory injunction.
3. The suit was resisted by the defendant pointing
out that B schedule property belonged to her. A
contention was also taken that plaintiff had no manner of
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right over plaint B schedule property and asserted that she
had not trespassed into any portion of property owned by
the plaintiff. Therefore she prayed for dismissal of the
suit.
4. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
PWs 1 and 2 and Exts.A1 to A5 were marked from the side
of the plaintiff. Defendant was examined as DW1 and
Ext.B1 was marked. Exts C1 to C3 are the commission
report and plan.
5. The trial court on a meticulous evaluation of
evidence adduced in the case came to the conclusion that
plaintiff had succeeded in establishing his title over plaint
B schedule property and obstruction had been caused by
the defendant. Accordingly the suit was decreed.
6. The defendant carried the matter in appeal as
A.S.No.36 of 2006. The appellate court on re-evaluation of
the evidence on record came to the same conclusion as that
of the trial court. Both the court belows have come to the
same conclusion with reference to the boundaries in the
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documents and sketch and report prepared by the
Commissioner. It was held that plaint B is a portion of A
schedule covered by Ext.A1. Accordingly, the appellate
court confirmed the decree in favour of the plaintiff.
7. Learned counsel appearing for the appellant
pointed out that the courts below were not justified in
granting a decree because the commissioner’s report
shows that the commissioner was not able to identify the
plaint B schedule property. It is also contended that
plaintiff cannot succeeded on the basis of the weakness of
the defence case. In support of the said proposition,
learned counsel relied the decision reported in Sayed
Muhammed Mashur Kunhi Koya Thangal Vs. Badagara
Jumayath Palli Dharas Committee and Others [2004 (7)
SCC 708]. It was also contended that the court below
ought not to have remitted the commissioner’s report
without an application to that effect. In short, there is
nothing to show that plaint B schedule is taken into by the
document of title of plaintiff namely Ext.A1.
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8. Learned counsel appearing for the respondent
on the other hand pointed out that very reading of the
boundaries of plaint A schedule in Ext.A1 document of title
of plaintiff and Ext.B1 is the document of title of defendant
whose controversy can be resolved.
9. Learned counsel also pointed out that it is not
correct to say that the commissioner was unable to identify
the property. Survey sketch clearly shows that the
commissioner was able to locate plaint B schedule property
and he has shown IT in the report.
10. The assignors of both the plaintiff and the
defendant is the same person. Ext.B1 is in favour of the
defendant at the prior point of time.
In Ext.B1 indicates that
–
–
- PWD
-
The boundaries mentioned in Ext.A1 reads thus:
–
–
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- PWD
-
11. The recital in Ext.B1 schedule also shows that on
the northern side is . In Ext.A1, on the
northern it is shown as
12. On a reading of Ext.B1, it can be seen that the
the northern boundary of the property obtained by the
defendant is . (portion left for the way). That
in fact is the portion set apart for pathway by the assignor
in Ext.B1. Ext.A1 in favour of the plaintiff in the schedule
makes mention that ” (including
the portion left for way). So it is clear that
(portion set apart for way) in Ext.B1 is the same as
(including the way) in Ext.A1. It is significant
to note that western boundary of Ext.A1 is shown as (tea
shop of kitta) PWD .
Necessarily therefore the property covered by Ext.A1 has to
extend till the P.W.D road on the west. Now one may
have a look at the commissioner’s report. Initially the
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Commissioner did not measure the property and prepared a
rough sketch. To that report and sketch defendant had no
objection. The plan and survey sketch later prepared were
remitted to the Commissioner for making certain
corrections and accordingly the Commissioner made the
corrections and resubmitted. Objection is taken to said
order of the Court on the ground that Court could not have
suo mutu remitted the report. The contention has no basis.
It is the duty of the Court to ensure that a proper plan and
report are filed so as to enable the Court to properly
appreciate the evidence in the case. Defendant filed an
objection pointing out that her property had not been
measured. It is contended that without doing so the finding
could not have been entered into. The contention too has
no basis. The suit was not one for fixation of boundaries.
On evidence it is found that B schedule is taken by Ext.A1
deed. Defendant has no case that by the inclusion of B
schedule in A1 as located by the Commissioner, the extent
of the property obtained by him is reduced. So also giving
by the boundaries already noticed by no stretch of
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imagination B1 document of title of defendant can take in
B schedule property.
13. Both the courts below have considered this
contention in detail and have come to the conclusion that
there is no merit in the contention at all. The
Commissioner’s report shows that B schedule forms part of
the property of the plaintiff. Initially the property was not
measured. The commissioner has in his report stated that
he has also verified the prior document of title and
partition deed in the family of the assignor of plaintiff as
well as the defendant.
14. It therefore follows that the Commissioner has
verified the document and after measuring the property a
sketch has been prepared. It is also pointed out that going
by the commissioner’s report the defendant is in possession
of plaintiff’s property and obstruction has been caused by
him. Considering the above facts, the court below held
that the plaintiff who is the owner of the B schedule
property is entitled to get recovery of that property on the
basis of her title. It could not be said that it was on the
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basis of the weakness in the defence case decree was
granted in favour of the plaintiff. Therefore, the decision
reported in Sayed Muhammed Mashur Kunhi Koya Thangal
Vs. Badagara Jumayath Palli Dharas Committee and others
[(2004) 7 SCC 708) has no application to the case.
Plaintiff was able to successfully establish that B schedule
forms part of the A schedule which she obtained under
Ext.A1. The courts below rightly decreed the suit in favour
of the plaintiff.
No interference is called for by this Court since it is
not shown that findings of the lower appellate court are
either perverse or unwarranted by the evidence on record.
No substantial questions of law arise for consideration in
this appeal. The appeal is without merits and it is
accordingly dismissed. There will be no order as to costs.
P.BHAVADASAN, JUDGE
ma
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