IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 649 of 1992(B)
1. KANDANKUTTY
... Petitioner
Vs
1. CHELLAN
... Respondent
For Petitioner :SRI.T.C.MOHANDAS
For Respondent :SRI.P.VELAYUDHAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :14/06/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO.649 OF 1992
===========================
Dated this the 14th day of June, 2007
JUDGMENT
Plaintiff in O.S.23/1973 on the file of Munsiff
Court, Palakkad is the appellant. Defendants are
the respondents. The case had an unfortunate
checkered history. The suit was filed seeking a
decree for recovery of possession of a small strip
of land lying in two survey numbers alleged to have
been trespassed by the defendants more than two
decades back. The trial court decreed the suit.
Defendants filed an appeal. The first appellate
Court as per the original judgment disagreed with
the finding of the trial court on the correctness
of Ext.C1 plan prepared by the Commissioner
demarcating the properties. Holding that there are
“conscious interliniations and additions in Exts.A1
and A4 title deeds relied on by the plaintiff,
the decree granted by the trial court was set aside
and the suit was dismissed. Plaintiffs challenged
S.A.649/1992 2
the said decree and judgment before this Court in
S.A.18/1980. This Court found that case of the
plaintiff that his property is lying in survey
No.3354/1B and 3355/2 was not disputed by the
defendants. It was also found contention in the
written statement was only that defendants have
constructed the disputed building three feet to the
south of the dividing line demarcating the survey
numbers and the real dispute is where exactly the
survey boundary line of the respective survey
numbers lies and not whether plaintiff has title to
the property comprised in R.S.No.3354/1B and
3355/2. This court held that in the nature of the
contentions raised by the parties, first appellate
Court should not have gone into the question of
title based on Exts.A1 and A4 and instead should
have found whether the properties are correctly
demaracted in Ext.C1 plan. This court also found
that the first appellate Court had interfered with
the findings of the trial court on the correctness
of Ext.C1 plan without any sort of discussion and
S.A.649/1992 3
did not advert to any reasons for coming to that
conclusion. Therefore the judgment of the first
Appellate Court was set aside and first appeal was
remanded with on the following directions.
“That court should consider
whether the measurements in
Ext.C1 plan are correct and if
so, whether the disputed
portions fall within the two
survey numbers claimed by the
plaintiff. If the finding on
the aforesaid point is in
favour of the plaintiff, the
court below has next to
consider the evidence
regarding the plea of adverse
possession and arrive at a
decision as to whether the
rights of the plaintiff has
been lost by adverse
possession.”(underline
S.A.649/1992 4
supplied)
Therefore what was directed by this court was to
firstly consider whether the properties are
correctly demarcated in Ext.C1 plan and Ext.C1
plan is correct. This court also made it clear
that on such correct demarcation, if the disputed
property falls in survey No.3354/1B and 3355/2,
first appellate Court need not further probe
further the question whether plaintiff has title
to that property as defendants did not claim any
right over the properties in those survey numbers,
and so plaintiff is entitled to the decree unless
his title is barred by adverse possession and
limitation. After remand, first appellate Court
again found that Ext.C1 plan cannot be relied on
and held that plaintiff is not entitled to the
decree. That judgment was challenged by the
plaintiff in S.A.543/1986. This Court again
remanded the first appeal holding that the first
Appellate Court did not comply with the directions
in the order of remand. Learned Sub Judge
S.A.649/1992 5
thereafter heard the appeal once again and as per
judgment dated 31.1.1992 allowed the appeal and
dismissed the suit. The Second Appeal is filed
challenging the said judgment.
2. Second Appeal was admitted formulating the
following substantial questions of law.
1. The finding on title in
S.A.No.18/1980 being that
the plaintiff has title to
the entire property in
R.S.No.3354/1B and 3355/2
and the remand in
S.A.543/1986 was with the
specific direction to
decide the question whether
the disputed portion falls
within the two survey
numbers mentioned in the
plaint schedule is not the
function of the lower
appellate court limited to
S.A.649/1992 6
find out whether the
disputed area falls within
the survey numbers claimed
by the plaintiff and
whether the first
appellate court is
justified in further
embarking upon the question
of the title of the
plaintiff to the disputed
plot.
2. In view of the orders
of remand in S.A.Nos. 18 of
1980 and 543 of 1986
confining the jurisdiction
of the first appellate
court to two questions
namely whether the disputed
land is in the two survey
numbers claimed by the
plaintiff and whether the
S.A.649/1992 7
suit is barred by adverse
possession and limitation,
is the first appellate
court correct in exceeding
the scope of remand and
refusing to enter a finding
on the question of adverse
possession and limitation.
3. The argument of learned counsel appearing
for the appellant was that as per the first remand
order, the title of the appellant to the property
comprised in survey No.3354/1B and 3355/2 was
upheld and the first appellate Court was not
competent to go into that question further. It was
further argued that as per the second remand order,
that was reiterated and the correctness of Ext.C1
plan was also confirmed and therefore first
Appellate Court is not entitled to go into those
questions and as per Ext.C1 plan, the disputed
portion falls within survey No.3354/1A and 3355/2,
and so learned Sub Judge should have considered
S.A.649/1992 8
the claim for adverse possession and as it was not
done, the judgment is bad for non compliance of
the directions of this Court.
4. Learned counsel appearing for the
respondents argued that this court did not uphold
the correctness of Ext.C1 plan and instead first
appellate court was specifically directed to
consider whether the properties are correctly
demarcated in Ext.C1 plan and only if it is found
that Ext.C1 plan is prepared after proper
demarcation, and the disputed property falls within
the survey numbers claimed by the plaintiff, a
decree could be granted and that too only if the
plea on adverse possession is negatived and first
appellate Court did not find the correctness of
Ext.C1 plan and therefore a decree as sought for
cannot be granted.
5. On going through the orders of remand
passed by this Court in S.A.18/1980 and
S.A.543/1986, I cannot agree with the argument of
the learned counsel appearing for the appellant
S.A.649/1992 9
that the entire dispute between the parties on
title and correctness of Ext.C1 plan were settled.
If the argument of the learned counsel appearing
for the appellant is to be accepted, and
correctness of Ext.C1 plan was confirmed by this
court and title of the appellant to the properties
comprised in survey Nos.3354/1B and 3355/2 was also
confirmed,the only question left
to be decided is whether the disputed portion
marked in Ext.C1 plan falls within the survey
Nos.3354/1B and 3355/2 and the adverse possession.
A reading of the judgment of this court in
S.A.18/1980 establish that this court did not affix
its seal of approval on the correctness of Ext.C1
plan. On the other hand, the court found that first
appellate court without giving any reason and
without discussing the correctness of measurements
did not accept Ext.C1 and first appellate court
should not have skipped over that subject. What was
found by this court was that the dispute between
the parties was actually whether the disputed
S.A.649/1992 10
portion of the property falls within R.S.
No.3354/1B and R.S.No. 3355/2 belonging to the
plaintiff or in the property belonging to the
respondents and respondent did not claim any right
in the property in R.S.No.3354/1 and 3355/2. The
admitted case was that the demarcating boundary
between the properties claimed by the plaintiff
and defendants is the survey boundary line. This
court found that though trial court upheld the
correctness of the plan prepared by the
Commissioner giving reasons and granted a decree
based on Ext.C1 plan, first Appellate Court found
otherwise but without giving reasons. Therefore
this court held that first Appellate Court should
consider whether Ext.C1 plan was drawn up by the
Commissioner correctly. It was then held that if
the plan is found to be drawn correctly with the
correct measurement and the disputed property falls
within R.S. Nos.3354/1B and R.S.No. 3355/2 and the
defendants failed to establish that they have
perfected their title by adverse possession,
S.A.649/1992 11
plaintiff is entitled to the decree. This court
did not hold first appellate Court need only to
look into Ext.C1 plan and find out whether the
disputed portion as marked therein falls in R.S.
Nos.3354/1B and R.S.No.3355/2 as demarcated
therein. If that was the case, this court could
have decided that issue by looking at Ext.C1
plan. Instead this court wanted the correctness of
Ext.C1 plan to be ascertained by the first
appellate court before deciding that aspect, and
for that purpose the first appeal was remanded.
When the matter was considered in the second remand
order, this court held that first appellate Court
should not have gone into the question of title and
should have complied with the directions passed by
this court. Though there is a statement in the
second remand order that in the first remand order
this court “in a way the plan prepared by the
Commissioner was approved by this Court.” what was
held was that the said plan was approved with the
directions provided in the first remand order.
S.A.649/1992 12
Therefore the second remand order cannot be held
as a confirmation of correctness of Ext.C1 plan.
In the second remand order, this court did not
consider the correctness of Ext.C1 plan at all.
6. Unfortunately even after the second remand
order first appellate Court did not consider
whether Ext.C1 plan was correctly drawn by the
Commissioner and whether it could be relied on. In
such circumstances, there is no other alternative
but to set aside the judgment passed by the first
appellate Court once again and remand the matter.
The question then is whether a remand is to be
made to the first appellate Court or to the trial
court as canvassed by the respondents. The orders
of remand passed by this Court earlier direct the
first Appellate Court to consider the question of
correctness of Ext.C1 plan. That is binding on the
respondents. They are now not entitled to
contend that the case is to be remanded to the
trial court. When the first appellate Court did
not comply with the directions of this Court and a
S.A.649/1992 13
remand is warranted, it could be remanded only to
the first appellate Court.
7. The appeal is allowed. The judgment of the
Sub Court, Palakkad in A.S.14/1976 is set aside.
A.S.14/1976 is restored and remanded.The first
appellate Court is directed to dispose the appeal
afresh in the light of the directions given by this
Court in S.A.18/1980 and as clarified in the
judgment. It is made clear that first appellate
Court is to consider whether the demarcation of the
properties in Ext.C1 plan is correct or not. If
the Court finds that the demarcation in Ext.C1
plan is not correct, court has to set aside the
report and remit the matter back to the trial court
for preparing a fresh plan after proper
demarcation. On the other hand, if the Court
finds that the property is correctly demarcated in
Ext.C1 plan and the disputed property falls in
survey, R.S. Nos.3354/1B and 3355/2,court need not
consider whether plaintiff has title to that
property and instead find that plaintiff has title.
S.A.649/1992 14
Then it is to be considered whether respondents
have perfected their title by adverse possession.
If it is found against the respondents, plaintiff
is to be granted the decree. It is also made
clear that if first appellate Court finds that
question of correctness in Ext.C1 plan cannot be
decided without further evidence, first appellate
Court can be granted permission to the parties to
adduce evidence to that limited purpose. If it is
found that the disputed property does not fall in
R.S.3354/1B or 3355/2 or even if falls respondents
have perfected their title by adverse possession
the suit shall be dismissed. Parties are directed
to appear before the Sub Court, Palakkad on
18.7.07. Send back the records to Sub Court,
Palakkad forthwith.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006