IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 93 of 2008()
1. T.P.MOHAMMED ALIAS BABU
... Petitioner
Vs
1. MOHAN JOHN MATHEW,S/O.,Y.W.MATHEW
... Respondent
For Petitioner :SRI.S.VINOD BHAT
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :13/03/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A. NO. 93 OF 2008
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Dated this the 13th day of March, 2008
JUDGMENT
First plaintiff in O.S.1574/1999 on the file of
Munsiff Court, Thiruvananthapuram is the appellant.
Respondent is the defendant. Second plaintiff died
subsequent to the disposal of the first appeal.
Appellant along with deceased second plaintiff
instituted the suit for declaration of title and
putting up boundary. The plaint schedule property
admittedly originally belonged to Elezebath Thomas.
She has two daughters Victoria Mathew and Emily
Daniel. Under Ext.B1, property was given to Emily
Daniel. Earlier under Ext.B2 property was given to
Victoria Mathew. The property obtained by Emily
Daniel under Ext.B1 was purchased by the second
plaintiff. What is contended by the appellant was
that out of 19 cents available with Elezabath
Thomas, 4 cents was acquired for drainage and road
and the balance 15 cents was obtained by Emily
R.S.A.93/08 2
Daniel under Ext.B1 and it was purchased by second
plaintiff under Ext.A1 and subsequently under
Ext.A2 partition deed, that property was divided
and the eastern 5.132 cents was allotted to the
sister of appellant and the western 9.868 cents is
allotted to the appellant and appellant is in
possession of the said property. Plaint schedule
property is claimed to be that 9.868 cents.
Contending that respondent has no right over the
same, appellant sought a decree for declaration of
title and fixation of boundary of the said
property. Respondent resisted the suit contending
that after Ext.B2 transfer, Elizabath Thomas was
not having 19 cents in her possession and the
property given to Emily Daniel is only the property
covered under the side measurements and it is not
an extent of 15 cents and appellant has no title
to the plaint schedule property and the property
which could be divided under Ext.A2 is only a
lesser extent.
2. The trial court on the evidence of Pws.1 to
R.S.A.93/08 3
3, DW1, Exts.A1 to A4, B1 to B3, Exts.C1 to C2(a)
found that before Ext.B1, Elizabath Thomas
transferred 19 cents of the property covered under
Ext.B2 sale deed in 1097 M.E to Victoria Mathew
and only the balance extent available with
Elizabath Thomas was assigned under Ext.B1. When
Ext.B2 shows the extent of the property
transferred, Ext.B1 only shows the side
measurements of the property. If the extent of the
property is fixed with reference to the side
measurement, it could only be 12.990 cents and not
15 cents. So under Ext.A2 15 cents cannot be
divided between the appellant and second plaintiff.
If that be so, appellant cannot claim title to
9.868 cents which is the plaint schedule property
and so the boundary cannot be the one as shown by
the Commissioner in Ext.C2(a) plan. On these
findings trial court dismissed the suit. Appellant
along with second plaintiff challenged the judgment
before Sub Court, Thiruvananthapuram in
A.S.35/2003. Learned Sub Judge on reappreciation
R.S.A.93/08 4
of evidence confirmed the findings of the learned
Munsiff and dismissed the appeal. It is challenged
in the second appeal.
3. Learned counsel appearing for appellant was
heard.
4. The argument of the learned counsel is that
when there is difference in the extent and side
measurements, courts below should not have fixed
the property with reference to the side
measurements and instead should have been fixed
with reference to the extent shown in Exts.A1 and
A2 and if so plaint schedule property as fixed by
the Commissioner in Ext.C2(a) plan should have been
upheld. Learned counsel relied on the decision of
a Division Bench of this Court in Savithri Ammal v.
Padmavathi Amma (1990(1) KLT 187)and argued that it
is not the principle that property could be fixed
only with reference to the side measurements and
there is no invariable rule in this regard and the
criterion which is least likely to have been
R.S.A.93/08 5
mistaken in the document is to be preferred. It
was argued that when Ext.A1 shows that the property
transferred is 15 cents, courts below should have
upheld the title of appellant to the plaint
schedule property and a decree should have been
granted. Learned counsel also argued that though
respondent claimed right over the western portion
of the plaint schedule property, his title deed
was not produced and though Ext.B2 was produced, no
supporting document to trace out the title of the
respondent was produced and without producing the
title deed, respondent is not entitled to dispute
the identity of the plaint schedule property as
demarcated by the Commissioner and therefore a
decree should have been granted.
5. On hearing the learned counsel, I do not
find that any substantial question of law is
involved in the appeal.
6. True, there is no invariable rule that a
particular mode has to be adopted to fix the
property when there is dispute with regard to the
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extent, boundary or side measurements in a
document. The principle is that when one of the
description is vague and uncertain and another
description is definite and certain, the latter is
to be preferred. Similarly if none of the
descriptions is vague or uncertain, that
description which is more certain and stable and
least likely to have been mistaken or inserted
inadvertantly must be preferred, if it is
sufficiently identifies the subject matter of the
transaction. The other descriptions must be
rejected as erroneous or inaccurate.
7. If the property covered under Ext.A1 could
be fixed with reference to the boundaries and such
identification is more certain and stable and least
likely to have been mistaken then the property
could be fixed with reference to the boundaries or
extent as canvassed by learned counsel appearing
for appellant. Admittedly the property covered
under Ext.A1 sale deed is the property obtained
under Ext.B1. The property covered under Ext.B1 is
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the property which lies to the east of the property
covered under Ext.B2. When the western boundary of
the property covered under Ext.A1 is the property
in the possession of the respondent and not any
physical boundary, property cannot be fixed with
reference to the boundary. Even if the western
boundary is further east or west of the western
boundary fixed by Commissioner, it will be the
property of respondent.
8. It is admitted case that before Ext.B1,
Elizebath Thomas transferred 19 cents covered
under Ext.B2 in 1097 M.E to Victoria Mathew.
Subsequently the remaining property was transferred
under Ext.B1 gift deed. When Ext.B2 shows that the
property is described with reference to side
measurements and extent, Ext.B1 shows that property
is described only in side measurements and not by
extent. What could be claimed under Ext.B1 is only
the property, excluding the property covered under
Ext.B2. When the second plaintiff purchased the
property under Ext.A1, apart from side
R.S.A.93/08 8
measurements extent was shown as 15 cents stating
that out of 19 cents obtained under Ext.B1 4 cents
was lost for drainage and road and it is the
balance. When Ext.B1 does not provide the extent
obtained by the donee, appellant who claims under
that donee cannot claim that the mistake is with
regard to the side measurements and the extent is
correct. It cannot be disputed that if the
property is identified with reference to the side
measurements given in Ext.B1 and A1 the extent
cannot be 15 cents as claimed by appellant but
only 12.990 cents. The evidence of PW2 the
Commissioner establishes that fact.
9. Though learned counsel argued that the
identification made by the Commissioner in Ext.C2
plan is to be accepted, Ext.C1 report does not show
that on what basis the Commissioner fixed the
property. When the property obtained under Ext.A1
is the same which was originally obtained under
Ext.B1 and Ext.B1 does not show the extent of the
property, the property covered under Ext.B1 as
R.S.A.93/08 9
well as Ext.A1 cannot be fixed with reference to
the extent as sought for by the learned counsel.
The property can only be fixed with reference to
the side measurements. It is more so when the
property covered under Ext.B2 was transferred first
and what was transferred under Ext.B1 is the
property which was left behind with the donor and
Ext.B1 does not describe the property transferred
in extent. Therefore I cannot accept the argument
of the learned counsel that the property covered
under Ext.A1 is to be fixed with reference to the
extent and not the side measurements. Moreover,
when the appellant sought to fix the property based
on the title deed and did not set up a case in the
plaint that the side measurements shown in Ext.A1
is not correct and the property is correctly shown
by extent, appellant cannot be heard to contend
that property is to be fixed not with reference to
the side measurements but with reference to the
extent. It is more so, when the right obtained
under Ext.A1 is the right which was obtained by the
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donee under Ext.B1 and the property is described
in Ext.B1 only by the side measurements. The
appeal is dismissed in limine.
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