IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1337 of 2009()
1. BHARGAVI,
... Petitioner
2. ANILAN, S/O.BHARGAVI,
3. SUNILAN, S/O.BHARGAVI,
Vs
1. VIJAYAN, S/O.OOTTUKAZHIYIL NARAYANAN,
... Respondent
For Petitioner :SRI.K.P.SUDHEER
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :23/12/2009
O R D E R
THOMAS P.JOSEPH, J.
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R.S.A. NO.1337 of 2009
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Dated this the 23rd day of December, 2009
J U D G M E N T
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This Second Appeal arises from judgment and decree in A.S.
No.323 of 2007 of learned Second Additional Sub Judge, Thrissur
confirming judgment and decree in O.S. No.6 of 2002 of learned
Munsiff, Wadakkancherry. Respondent sued appellants for a decree
for recovery of possession on the strength of title. According to the
respondent plaint A schedule described as 5= cents comprised in
Sy.No.775/2 belonged to him. On the north of that property is the
property of appellants comprised in Sy.No.775/1. It is the case of
respondent that at a time when he was out of station on
17.11.2001 appellants trespassed into the northern portion of
plaint A schedule and reduced that portion into their possession
which is described in the plaint B schedule. That portion is sought
to be recovered on the strength of title. Appellants denied the
allegation of encroachment and claimed that respondent is having
more extent than what is stated in his title deed. It is contended
that there is no boundary between the two properties. It is also
contended that plaint B schedule does not form part of plaint A
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schedule and at any rate appellants have perfected title over plaint
B schedule by adverse possession and the law of limitation. Trial
court found in favour of the respondent with respect to title of plaint
B schedule property against the appellants in their plea of adverse
possession and limitation and granted a decree in favour of the
respondent. Challenging that judgment and decree appellants
filed appeal but in vain. Hence this Appeal. It is contended by
learned counsel for appellants that respondent cannot win on the
weakness of the case of appellants this being a suit on title and
placed reliance on the decisions in Narayana Iyer v. Vella
(1988 [1] KLT 856) and Ramachandra Sakharam Mahajan
v. Damodar Trimbak Tanksale ([2007] 6 SCC 737). It is
also submitted by learned counsel that in the first appellate court
two applications were filed; one for reception of additional evidence
and the other, for appointment of a fresh Commissioner to measure
the properties with reference to documents of title and with the
assistance of the Taluk Surveyor. First appellate court dismissed
those applications and the appeal. That according to the learned
counsel, is illegal.
2. There could be no dispute that in a suit on title plaintiff
has to win on the strength of his title and that weakness of case of
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defendant is no ground to grant relief in favour of the plaintiff. In
the present case respondent claimed title over the disputed
property as per Ext.A1 and produced Ext.A2, purchase certificate to
prove payment of revenue for the said property. According to the
respondent his entitlement is in Sy.No.775/2. I have gone through
the copy of written statement filed by the appellants and given to
me for perusal by the learned counsel. Nowhere in the written
statement it is pleaded that appellants have any inch of land in
Sy.No.775/2. Claim of appellants is only in Sy.No.775/1. There is
also no dispute regarding survey number or re-survey number as the
case may be. Therefore claim of appellants must be confined to the
property comprised in Sy.No.775/1. There is also dispute regarding
survey number or re-survey number as the case may be. A further
fact to be noted is that appellants did not produce their document of
title in the trial court nor was any document made available to the
Commissioner at the time of inspection. Commissioner measured
the properties with the assistance of the Taluk Surveyor and
prepared Exts.C1, C1(a), C2 and C2(a), reports and plans.
Commissioner has shown the disputed property as plot B in Ext.C2
(a) measuring 587/1000 cent and falling in Sy.No.775/2 in which
admittedly respondent owns property and in which survey number
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appellants have no claim. Commissioner has also found after
measurement of the property that disputed property formed part of
plaint A schedule belonging to the respondent. Entitlement of
appellants is only over the property comprised in Sy.No.775/1 which
admittedly is situated on the north of the disputed plaint B schedule.
It is true that on measurement it is found that respondent is entitled
to more extent than stated in Ext.A1, by cents and measurements
but descriptions in Ext.A1 and plaint A schedule tallied with the
descriptions given by the Advocate Commissioner as regards the
boundaries and survey number, inconsistency being only as regards
the extent. It has been held by this Court in Savithri Amma
Vilasini Amma v. Jayaram Pillai Padmavathy Amma
(1989 [2] KLJ 709) that when there is conflict between survey
number, extent, measurement, boundaries, etc., there is no
invariable rule that one should prevail over other, it is a matter of
construction of the document and that one which is clearer and
specific has to be preferred. In Parameswaran Pillai v.
Gowrikutty Amma (1984 KLT SN Case No.111) description
by fixed boundaries was preferred to description by area. In the
present case appellants have no claim over sy.No.775/2 in which
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plaint A schedule lies and plaint B schedule is found to be. In the
present case descriptions by boundaries and survey number tallied
which was preferred over extent. It is also seen that of the 43
cents belonging to the appellants in Sy.No.775/1 they have sold 16<
cents to one Velayudhan and even excluding plaint B schedule,
appellants are in possession of more extent than they are entitled
to, by half a cent. Therefore it is not as if the disputed property
forms part of the property of the appellants.
3. As to the applications preferred before the first appellate
court; one was for reception of additional evidence. It is a case
where respondent produced his documents, claimed title and the
Advocate Commissioner after measurement found that disputed
property forms part of the property of the respondent. Documents if
relevant for enquiry ought to have been produced by the appellants
in the trail court. So far as the request for fresh measurement of the
properties is concerned, it is not as if court can call for successive
reports. A second report can be called for when the first report is
not acceptable or further materials are necessary to be obtained for
disposal of the case. None of those situations arise in this case.
In these circumstances courts below are justified in finding title as
pleaded by the respondent. On the evidence on record, the plea of
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adverse possession was also negatived. No substantial question of
law as urged is involved requiring admission of this Second Appeal.
Second Appeal is dismissed in limine.
Interlocutory Application No.3068 of 2009 shall stand
dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv
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THOMAS P.JOSEPH, J.
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R.S.A. NO.1337 OF 2009
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J U D G M E N T
23RD DECEMBER, 2009