IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 929 of 1994()
1. THOMAS
... Petitioner
Vs
1. GEORGE
... Respondent
For Petitioner :SRI.K.V.JAYACHANDRAN
For Respondent :SRI.M.P.KRISHNAN NAIR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :06/12/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
------------------------------------------
S.A .NO. 929 OF 1994
------------------------------------------
Dated 6th December 2007
J U D G M E N T
Plaintiff in O.S.201/ 1988 on the file of
Munsiff court, Muvattupuzha is the appellant.
Defendant is the respondent. Appellant instituted the
suit seeking a decree for recovery of possession on
the strength of title. Appellant and respondent are
brothers. Appellant is the elder brother. Plaint
schedule properties are three items of properties
which originally admittedly belonged to the father of
appellant and respondent. It was admittedly divided
under Ext.A1 partition deed dated 12/1/1977. Under the
said partition deed A schedule properties therein were
allotted to the share of appellant and B schedule to
the share of respondent. Appellant claimed title to
plaint schedule property contending that they are
properties allotted to him as item Nos.2 and 3 of
plaint A schedule property. Adjoining property
allotted to the respondent is item No.2 of plaint B
schedule property. Appellant would contend that
SA 929/94
2
respondent trespassed into the plaint schedule property
and reduced it into his unlawful possession and he is
entitled to recover possession of the same with mesne
profits on the strength of the title. Respondent
resisted the suit admitting Ext.A1 but contending that
properties were in the possession of the respective
parties even before partition. It was also contended
that there was a mistake in the extent and survey
number in Ext.A1 partition deed and appellant attempted
to trespass into the property and respondent therefore
instituted O.S.135/1986 and just prior to the
institution of that suit respondent came to know that
he obtained 30 cents in R.S.No.68/11A instead of 15
cents and 57 cents instead of 37 cents in
R.S.No.68/11C and also 8 cents in survey
No.184/1/31/46 instead of 19 cents shown in partition
deed and appellant is not entitled to the recovery of
possession of the said property as he has no title to
the property.
2. Learned Munsiff on the evidence of PW1, Dws.1
and 2 and Exts.A1 to A6, B1 to B3 and C1 and C1(a)
found that under Ext.A1 partition deed appellant has
title to plaint A schedule property and plaint
SA 929/94
3
schedule properties are the properties allotted under
A schedule of Ext.A1 and it does not form part of B
schedule property allotted to respondent under Ext.A1
and therefore appellant is entitled to the recovery
of possession of the same on the strength of title.
Learned Munsiff also found that properties were
correctly demarcated in Ext.C1(a) plan and appellant is
also entitled to mesne profits at the rate of Rs.120/-
per month till realisation. Suit was decreed and
appellant was allowed recovery of possession of plaint
schedule property. It was also provided that respondent
is entitled to the value of improvements which is to be
fixed at execution proceedings. Respondent did not
file an appeal. Appellant filed A.S.12/1992 before the
Sub court, Muvattupuzha challenging the portion of the
decree granting value of improvements, to be fixed at
the execution stage contending that being a trespasser
appellant is not entitled to the value of improvements.
In the appeal respondent filed a cross objection
contending that trial court should have found that
respondent is not a trespasser and he has been in
possession of the property from the date of Ext.A1
partition deed and appellant is not entitled to the
SA 929/94
4
decree for recovery of possession sought for. Learned
Sub Judge on re-appreciation of evidence confirmed the
findings of learned Munsiff that appellant has title
to the plaint schedule properties under Ext.A1. But it
was found that as item No.1, appellant was allotted
only 15 cents in survey No.68/11B and as item No.2, 20
cents on eastern side of 57 cents comprised in survey
No.68/11C was also alloted to him and the remaining
extent in that survey number, being the eastern part,
was alloted to the respondent under B schedule and as
item No.3 only 15 cents in R.S.No.68/11A was allotted
to the appellant and those plots are plots 3,4 and 9
marked in Ext.C1(a) plan. Learned Sub Judge found that
appellant is only entitled to recovery of possession of
the item No.3,4 and 9 and not the remaining 15 cents
in survey No.68/11 A. Finding that respondent has
planted 37 rubber trees bonafide, it was held that
appellant is entitled to the value of improvements of
only those 37 rubber trees. Decree was modified with
regard to value of improvements restricting it to 37
rubber trees. Recovery of possession was also modified
to plots 3,4 and 9. Appellant is challenging the
judgment in the second appeal.
SA 929/94
5
3. Appeal was admitted formulating following
substantial questions of law.
1) Whether first appellate
court was justified in varying the
decree granted by trial court when
respondent did not raise specific
grounds in the cross objection with
regard to possession of 30 cents in
R.S.No.68/11A.
2) Whether first appellate
court was justified in restricting
the decree to 15 cents in
R.S.No.68/11A, when Ext.A1 partition
deed shows that only appellant was
alloted the property in R.S.No.68/11A
and respondent was not alloted any
property in that survey number.
4. Learned counsel appearing for appellant and
respondent were heard.
5. Though respondent raised a contention before
the trial court, and it was re-agitated before the
first appellate court that properties which were
divided under Ext.A1 was earlier divided and the
respective positions of the parties were in the
possession of the sharers, it was not accepted by the
trial court and appellate court. Being a finding of
fact, that question cannot be re-agitated in the
SA 929/94
6
second appeal. Fact that appellant was alloted the
properties under schedule A and respondent under
schedule B is also undisputed. Trial court and first
appellate court found that appellant has title to the
property allotted as schedule A under Ext.A1. Trial
court found that plaint schedule properties are the
properties allotted to the appellant under Ext.A1 and
he has title to the property. Learned Sub Judge on re-
appreciation of evidence also confirmed that finding.
But learned Sub Judge modified the decree with respect
to the eastern portion of R.S.No.68/11A having an
extent of 15 cents, though trial court found that
appellant has title to the entire thirty cents
including the said 15 cents also. Argument of learned
counsel appearing for appellant is that when the title
so found by the trial court, was not specifically
challenged in the cross objection and no specific
ground was taken first appellate court was not
justified in varying the decree and that too without a
specific finding for the modification. It was argued
that first appellate court restricted the relief to
plot No.4 alone which is the western 15 cents plot in
R.S.No.68/11 A, for the reason that commissioner has
SA 929/94
7
found that respondent is in possession of that property
and not for the reason that appellant has no title to
the property. Learned counsel appearing for respondent
argued that under Ext.A1 appellant was alloted only 15
cents and that 15 cents is plot No.4 and appellant
cannot claim title to the eastern 15 cents in
R.S.68/11A which is in the possession of respondent.
and therefore finding of first appellate court is
correct.
6. There is force in the submission of the
learned counsel appearing for appellant that when the
question of title with regard to the eastern half of
R.S.No.68/11A which is part of 30 cents for which title
of the appellant was upheld by the trial court and when
the finding was not specifically challenged by
respondent, first appellate court should not have
varied the said finding. Grounds taken in the cross
objection are as follows;
1. The lower court went wrong in
finding that the respondent is a
trespasser and as such he has to be
evicted from the plaint schedule
properties.
2. The lower court ought to have
found that the respondent got possession
SA 929/94
8
of plaint schedule properties on the date
of partition deed and that the respondent
is legally entitled to be in possession
of the properties as per the provision of
the partition deed.
3. The lower court ought to have
found that the plaintiff was never in
possession of the plaint schedule
properties from the date of partition.
Therefore in the light of the grounds taken in the
cross objection, first appellate court was not
justified in probing the title of the appellant
further, when it was already found in his favour by the
trial court.
7. Whatever it be, the question is whether
appellant has title to the eastern 15 cents which was
not granted by the first appellate court. It is not
disputed that respondent was not allotted any property
in R.S.No.68/11 A. It is also true that as item No.2 of
A schedule, only 15 cents in R.S.No.68.11 A was alloted
along with other properties to the appellant. That 15
cents is marked by the Commissioner as plot 4. But as
rightly pointed out by the learned counsel appearing
for appellant, description of item No.2 of A schedule
in Ext.A1 shows that it is not only 15 cents but also
SA 929/94
9
the surplus areas (“virivu”). If that be so, it cannot
be said that as extent of R.S.No.68/11 A shows only 15
cents, appellant has no title to the remaining 15 cents
of the property. When Ext.A1 shows that respondent was
not allotted any property in R.S.No.68/11 A and instead
the entire property was allotted only to the appellant
showing the extent of surplus land, it can only be
found that appellant has title to said eastern 15
cents also. It is more so, because the description of
item No.2 of A schedule of Ext.A1 shows that it is a
continuous plot along with plots 3,4,9 and 10 as
demarcated by the Commissioner. If that be so, even on
merits first appellate court was not at all justified
in restricting the decree to plot No.4 alone and not
confirming the decree granted in respect of the eastern
15 cents of R.S.No.68/11A. Therefore, to that extent
appellant is entitled to succeed in the appeal. No
other question was argued in the appeal. Though
respondent had filed a cross objection, it does not
show any substantial question of law. No substantial
question of law is also involved. Hence cross objection
is dismissed.
8. In the result, appeal is allowed. Judgment
SA 929/94
10
in O.S.201/1988 on the file of Munsiff court,
Muvattupuzha as modified in A.S.12/1992 on the file of
Sub court, Muvattupuzha is modified holding that
appellant is also entitled to get recovery of
possession of eastern 15 cents of plot No.4 in
R.S.No.68/11A as demarcated by the Commissioner. No
cost.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.
SA 929/94
11
=============================
M.SASIDHARAN NAMBIAR,J.
JUDGMENT
S.A.NO.929 OF 1994
6th December 2007
============================