IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 714 of 1995(B)
1. KAITHAKAL CHANDI
... Petitioner
Vs
1. JOHN NEDUMPALLI
... Respondent
For Petitioner :SRI.V.RAJAGOPAL
For Respondent :SRI.O.RAMACHANDRAN NAMBIAR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/04/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
S.A. NO. 714 OF 1995
===========================
Dated this the 7th day of April, 2008
JUDGMENT
Defendant in O.S.114/1988 on the file of
Munsiff Court, Payyannur is the appellant.
Plaintiffs are the respondents. Respondents
instituted the suit originally for injunction which
was subsequently converted into recovery of
possession. Plaint A schedule property consists of
two items. First item having an extent of two
acres and second item having an extent of 1 acre.
Both are in R.S.No.90/1 of Vellora Village. It is
admitted case that Chacko was the original owner of
the property having an extent of 9 acres inclusive
of plaint A and B schedule property as well as the
property belonging to appellant. Under Ext.B1 sale
deed dated 18.9.1962, Chacko assigned the property
in favour of Kaithakkal Mani father of appellant.
It is admitted case that under Ext.A1 sale deed
dated 9.9.1975, Mani assigned 3 acres of land in
S.A.714/1995 2
favour of first respondent John his wife second
respondent Valsamma and Joseph. First respondent
obtained 3/5 shares, second respondent his wife
1/5 share and Joseph the remaining 1/5 share.
Under Ext.A2 release deed dated 5.5.1976, Joseph
released his 1/5 share in favour of first
respondent. Respondents are claiming right and
title to plaint A schedule property under Exts.A1
and A2. The disputed portion of the plaint A
schedule property is plaint B schedule property.
Plaint B schedule property consists of two items.
Item No.1 having an extent of 4 = cents and item
No.2 having an extent of 6 = cents. Though under
Ext.A1, 3 acres was assigned, the property assigned
is not a compact block. It consists of two plots
one on the east and the other on the west. In
between is the property of assignor Mani. The
disputed item No.1 of plaint B schedule property
is marked in Ext.C1 plan as plot A1. item No.2 of
plaint B schedule property is marked as plot B1.
Respondents are claiming title to plot A1 and B1
S.A.714/1995 3
part of plot X and Y marked in Ext.C1 plan, on the
strength of Ext.A1 and A2 title deeds. Case of the
appellant is that plot A1 and B1 do not form part
of the property assigned under Ext.A1 and it
actually forms the remaining property retained by
executant Mani under Ext.A1 and respondents have no
title to the property.
2. Learned Munsiff based on the evidence of
Pws.1 and 2, DW1, Exts.A1 to A9, Exts.B1 to B5, C1
and C2 found that plot A1 forms part of plot X,
which is item No.1 of the property covered under
Ext.A1 and therefore respondents have title to the
disputed plot Ext.A1. Finding that plot B1 does
not form part of 1 acre which is item No.2 of
plaint B schedule property it was found that it
does not form part of plot Y and respondents have
no title to plot B1. Though appellants contended
before the trial court that demarcation of the
property by the Commissioner in Ext.C1 plan is not
correct and survey stone P marked in Ext.C1 plan
is not correct and it should be at point P1,
S.A.714/1995 4
learned Munsiff on the evidence found that the
survey stone could only be at point P as marked by
the Commissioner in Ext.C1. Based on that report it
was found that respondents have title to plot A1
and respondents are entitled to recover possession
of that property. Claim for recovery of
possession of plot B1 was rejected holding that
respondents have no title to that property.
Respondents did not challenge the denial of the
claim for recovery of possession of plot B1 either
by filing a regular appeal or by filing a Cross
Objection in the appeal filed by the defendants.
Appellant challenged the judgment before Sub
Court,Payyannur in A.S.No.3/1991. Learned Sub
Judge on reappreciation of evidence confirmed the
findings of learned Munsiff that Commissioner has
correctly demarcated the property and survey stone
must be at point P and not at point P1 and item
No.1 of Ext.A1 sale deed is inclusive of plot A1
and plot X and respondents have title to the
disputed plot A1. The decree granted by the trial
S.A.714/1995 5
court for recovery of possession of that plot was
upheld. It is challenged in the appeal.
3. The appeal was admitted formulating the
following substantial questions of law.
1. Whether in the facts
and circumstances of the
case findings of courts
below on the
identification of plaint
schedule property are
correct?
2. Whether in the facts
and circumstances of the
case courts below are
correct in holding that
the position of survey
stone is at point P and
not at point P1.
3. Whether in the facts
ad circumstances of the
case courts below are
S.A.714/1995 6
correct in finding that
plot A2 and B2 are not
included in the property
of plaintiff and those
plots are included in
river puramboke?
4. Whether in the facts
and circumstances of the
case courts below were
correct to receive the
Commissioner’s plan and
report C1 and C2, when
the Commissioner admitted
that he has not taken
measurements from all
neighbouring survey
stones to fix the
position of the survey
stone at point P?
5. Whether on the facts
and circumstances of the
S.A.714/1995 7
case courts below were
correct to find that
plaintiff is entitled to
recovery of possession of
plot A1, when the
property covered by the
document by which
plaintiff is claiming
right is not properly
identified.
4. Learned counsel appearing for appellant
and respondents were heard.
5. Appellants have filed an application to
receive photo copies of the report and plan
submitted by the Commissioner in O.S.132/1991 as
well as judgment in that suit and the notice
issued by District Superintendent of Survey
modifying the resurvey plan prepared by the Taluk
Surveyor on 20.10.92. The documents sought to be
produced under Rule 27 of Order 41 are not
certified copies, but photo copies they cannot be
S.A.714/1995 8
received and the petition was not numbered by the
registry.
6. The facts are not disputed. Father of the
appellant purchased the property under Ext.B1 sale
deed. Under Ext.A1, out of the said 9 acres, three
acres were assigned in favour of appellants and
Joseph. Joseph under Ext.A2 released his right in
favour of first respondent. As found by the
courts below in his written statement appellant
unambiguously admitted that respondents have
obtained title to 3 acres of land in R.S.No.90/1
under Ext.A1. Ext.A1 shows that the said 3 acres
consist of 2 plots one eastern plot having an
extent of 1 acre and western plot having an extent
of 2 acres. Plot X and Y, as demarcated in Ext.C1
plan is admittedly the property in the possession
of respondents under Ext.A1. Though respondents
claimed that plot B1 which lies to the west of plot
Y and to the north of the property admittedly in
the possession of appellant, is part of item No.2
of Ext.A1 sale deed, the claim was rejected by the
S.A.714/1995 9
trial court and was not challenged by respondents
thereafter. Therefore now the subsisting dispute
is only with regard to plot A1.
7. Under Ext.A1 the extent of item No.1 is 2
acres. Plot X as demarcated by the Commissioner is
having an extent of only 1.80 acres. Plot A2
which lies to the north of plot X and to the south
of the northern river is having an extent of 9 =
cents. Even if the case of appellant that plot A2
also forms part of the property covered under
Ext.A1 is accepted, along with plot X the total
extent could only be 1 acre 89 = cents whereas
under Ext.A1 the total extent is 2 acres. Though
appellant contended that plot A2 forms part of the
property assigned under A1, as it lies to the south
of the northern river which is shown as the
northern boundary on item No.1 of the property
covered under A1, it is not disputed that the
survey boundary line of R.S.No.90/1 is to the south
of plot A2. If that be so, when the property
assigned under Ext.A1 is only in R.S.No.90/1, plot
S.A.714/1995 10
A2 cannot be part of that property. What was
argued by the learned counsel appearing for
appellant was that the courts below should not have
relied on Ext.C1 plan and should have found that
the demarcation of plots in Ext.C1 plan is not
correct. It was pointed out that as PW2
Commissioner deposed that he did not verify the
position of the survey stones from the admitted
remaining survey stones and therefore point P is
not the place where the survey stone should be, but
point P1 and if so Ext.C2 report and Ext.C1 plan
submitted by the Commissioner should not have been
accepted, it is seen from the records of the trial
court that when the Commissioner submitted Ext.C2
report and C1 plan, only an objection to record was
filed by the appellant. There was no prayer either
to remit the report back to the Commissioner for
proper identification or to correct any mistake or
a petition to set aside the report on the basis
that the property was not properly identified. On
going through the objections raised by the
S.A.714/1995 11
appellant it is clear that the location of survey
stone “5”which lies to the west of point P and P1
seen in Ext.C1 was not disputed. Ext.A9 the survey
plan shows that the eastern survey stone from plot
5 is at a distance of 380 links towards the east.
If P1 is the point where the survey stone should
be, as canvassed by the appellant, then Ext.C1
plan shows that instead of 380 links the distance
is 381 links. So also from the eastern survey
stone as marked by the Commissioner at point Q is
further east. Though it was canvassed before the
courts below that point Q was also not correctly
fixed, courts below found that it was correctly
fixed. From the point P the eastern survey stone
should be at a distance of 227 links. Q is a
distance of 227 links from point P. If as canvassed
by appellant the survey stone is at P1 then the
survey stone Q is not at a distance of 227 from
point P1 but at a distance of 225 links. In such
circumstance, case of the appellant that survey
stone should be at P1 cannot be accepted. Courts
S.A.714/1995 12
below on proper appreciation of evidence entered a
factual finding that Commissioner has correctly
located the property in Ext.C1 plan and plot A1
forms part of item No.1 of Ext.A1 sale deed and
therefore respondents have title to that property.
As respondents have title, they are entitled to the
decree for recovery of possession granted by the
courts below. I find no merit in the appeal.
Appeal is dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
———————
S.A..NO.714 /1995
———————
JUDGMENT
7TH APRIL,2008
