IN THE HIGH COURT OF KERALA AT ERNAKULAM
Ex.SA.No. 20 of 2008()
1. TREESA GEORGE, W/O.GEORGE, AGED 65,
... Petitioner
Vs
1. KARMELI @ BABY, D/O.AUGUSTINE, AGED 54,
... Respondent
2. T.M.ADIOQUE, S/O.HASSAN,
3. AGNISA, W/O.LATE XAVIER, D.NO.14/1879,
4. K.X.JOSEPH, S/O.LATE XAVIER, KURUSINGAL
5. HENRY, S/O.LATE XAVIER, H.NO.14/1879,
6. BABY JOSY, D/O.LATE XAVIER,
7. SOOSYK JAIMY, D/O.LATE XAVIER,
8. JANCY MICHAEL, D/O.LATE XAVIER,
For Petitioner :SRI.K.MANOJ CHANDRAN
For Respondent :SRI.S.B.PREMACHANDRA PRABHU
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/12/2009
O R D E R
THOMAS P. JOSEPH, J.
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Ex.S.A.No.20 of 2008
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Dated this the 3rd day of December, 2009.
JUDGMENT
The Execution Second Appeal arises from judgment and decree of
learned Sub Judge, Kochi in Execution First Appeal No.22 of 2008 arising from
the order on E.A.No.93 of 2008 in E.P.No.117 of 1998 in O.S.No.594 of 1996 of
the court of learned Principal Munsiff, Kochi.
2. Short facts necessary for consideration of Second Appeal are:
one Xavier acquired title and possession of 7.610 cents of land together with a
building thereon as per Ext.A3, assignment deed No.2380 of 1972. While so,
he gifted allegedly the entire suit property in favour of his grandson, Antony (son
of respondent No.1) as per Ext.A1, gift deed No.2742 of 1985. Antony, in turn
assigned the suit property to respondent No.1 as per Ext.A2. Respondent No.1
filed suit for recovery of possession of the suit property and building thereon
from respondent No.2 alleging that respondent No.4 in the appeal, former
husband of respondent No.1 unauthorisedly inducted respondent No.2 into
possession of the suit property and building. A decree for eviction was granted
in favour of respondent No.1 and that has become final. In the course of
execution one of the legal representatives of Xavier filed a petition in respect of
610 sq. links of land (scheduled in E.A.No.93 of 2008) claiming that the gift as
per Ext.A1 is excluding the said 610 sq. links and that on the death of Xavier all
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his legal heirs are entitled to share in the said 610 sq. links. That petition did not
succeed. Later appellant filed E.A.No.93 of 2008 in the executing court claiming
that the said 610 sq. links which according to the appellant is not covered by
Ext.A1 belonged to all the legal representatives of Xavier in co-ownership and
hence in delivering possession as per the decree in the suit the said 610 sq.
links has to be excluded. That application was opposed by respondent
No.1/decree holder and after enquiry executing court found against the appellant
which the first appellate court has confirmed. Hence the Second Appeal urging
the following as the substantial question of law:
When out of the 7.610 cents of property owned by late Xavier, three cents
were sold to one Usha in the year 1985 and out of the balance extent of 4.610
cents late Xavier had gifted four cents alone to his grandson Antony and the
balance extent 610 sq. links of property including a portion of the building should
necessarily be found with him as has been observed by the advocate
commissioner in Exts.A4 and A4(a), reports were the courts below justified in
holding that the said 610 sq. links had automatically vested in respondent No.1?
3. Appellant filed I.A.No.2889 of 2009 under Order 41 Rule 27 of the
Code of Civil Procedure (for short, “the Code”) to receive additional evidence and
produced the C.C. of assignment deed No.3046 of 1985 dated 10.10.1985
executed by Xavier in favour of Usha in respect of the three cents towards east
of the total of 7.610 cents. Since the document is relevant and necessary for a
Ex.S.A.No.20/2008
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proper decision of the controversy raised in this case that application is allowed
and the document is marked as Ext.A6. It is contended by learned counsel for
appellant that though Order 21 Rule 101 of the Code contemplated a detailed
enquiry into all questions including title and possession when a claim petition is
preferred, executing court has conducted the enquiry in a summary nature
without going into the merits of the contentions raised and decided against the
appellant. It is also contended by learned counsel that first appellate court has
disposed of appeal without referring to the contentions raised by the parties.
Learned counsel contends that going by Ext.A1, entitlement of Antony was only
for four cents and building situated thereon and hence he was not competent to
transfer to respondent No.1 (as per Ext.A2) anything more than what he got as
per Ext.A1. Learned counsel has referred to me the evidence on record.
Learned counsel for respondent No.1 per contra contended that appellant has
been put up by respondent No.4 who himself had preferred a claim petition
and lost. It is also contended by learned counsel that the entire decree
schedule property and the building belongs to respondent No.1.
4. No doubt when a claim petition is filed if the court does not refuse
to entertain the same, it has to be enquired into and all questions regarding title,
interest and possession arising between the parties to the proceeding are to be
decided. The order of adjudication will have the force of a decree. Therefore
the executing court is required to decide the questions relating to title and
possession. So far as Ext.A1 is concerned, the contention raised by learned
counsel for respondent No.1 is that though while describing the property gifted to
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Antony the extent is stated as four cents, a reading of Exts.A1, A2 and A6 would
show that what was gifted to Antony is the entire property lying within the
boundaries mentioned in the schedule which according to the learned counsel
would take in 4.610 cents and the building situated thereon. Learned counsel
submits that Xavier assigned three cents towards east of the property in favour
of one Usha as per Ext.A6 and that assignment is after the gift in favour of
Antony as per Ext.A1. Ext.A2 is the document executed by Antony in favour of
respondent No.1 where the extent of property assigned is stated as 4.610 cents
and the building thereon. Controversy is regarding the 610 sq. links which the
appellant say, did not form part of the gift as per Ext.A1. Learned counsel
invited my attention to Ext.A5, copy of written statement filed by respondent No.1
in O.S.No.59 of 2007 of the court of learned Munsiff, Kochi, a suit instituted by
the appellant against other legal representatives of Xavier claiming partition
and separate possession of the disputed 610 sq. links. Learned counsel submits
that in Ext.A5 there is no contention for respondent No.1 that she is in
possession of the 610 sq. links. In response it is pointed out by learned counsel
for respondent No.1 that though the disputed 610 sq. links is shown by the
advocate commissioner in Exts.A4 and A4(a) as situated on the eastern portion
of the property admittedly gifted to Antony as per Ext.A1, going by the plaint
averments in O.S.No.59 of 2007 the disputed 610 sq. links is shown in that
plaint as situated on the south-west of the property gifted to Antony as per
Ext.A1. It is submitted by learned counsel that O.S.No.59 of 2007 has ended in
a dismissal and the matter is pending consideration in the Sub Court, Kochi in
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A.S.No.12 of 2009.
5. It is seen from the copy of decree in the present suit given to me for
perusal by learned counsel for respondent No.1 that the extent of property
described therein is 4.416 cents (and not 4.610 cents) ofcourse, lying within
the boundaries mentioned therein and the building situated thereon. The
boundary description in the decree schedule tallied with the description in
Ext.A1. Learned counsel for respondent No.1 states that mention of the extent
as 4.416 cents in the plaint schedule is a mistake in drafting the plaint .
Appellant also has no case that entitlement of respondent No.1 is for 4.416
cents. Dispute is whether it is four (4) cents or 4.610 cents.
6. It is contended by learned counsel for respondent No.1 that a
reading of Ext.A1 would show that less the three cents towards the eastern side
which was later assigned to Usha and others as per Ext.A6, the entire property
on the west (ie. 4.610 cents) including building was gifted to Antony as per
Ext.A1. It is also the contention of learned counsel when there is conflict
between extent, survey number, boundaries, etc. the one description which is
more clear is to prevail over the other and in this case, considering the fact that
eastern boundary in Ext.A1 is stated as property of Xavier (which according to
learned counsel was later assigned to Usha as per Ext.A6) and other boundary
descriptions and particularly taking into consideration that the entire building (a
portion of which admittedly comes within the disputed 610 sq. links) has been
gifted to Antony as per Ext.A1, it must be taken that Xavier had gifted 4.610
cents and entire building to Antony as per Ext.A1.
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7. At the time when Xavier gifted a portion of his property the total
extent of which, it is not disputed by either side is 7.610 cents the donee
(Antony, his grandson) was a minor. The donee was represented by his father in
Ext.A1, the gift deed. Ext.A1 states that the four (4) cents together with the
building bearing door No.XV/1359 is gifted to Antony. Ext.A1 does not give the
measurements of the property but states the extent as four (4) cents. The
boundary descriptions in Ext.A1 is property of Xavier (the donor) on the east,
property in same survey number on the north and property of third parties on the
west and south. In Ext.A2, assignment deed executed by Antony in favour of
respondent No.1, the property assigned is stated to be 4.610 cents made upto
four (4) cents referred to in Ext.A1 and 610 sq. links in his possession and
enjoyment and bounded by property in the same survey number on the east and
north and property of third parties on the west and south. After gift of the
property covered by Ext.A1, Xavier assigned the three cents forming the eastern
portion of the 7.610 cents to Usha as per Ext.A6 describing the western
boundary as property of himself in the same survey, property of third party on the
east, five (5) links wide way on the north and puramboke way on the south.
Learned counsel for appellant submits that when after gift of the western portion
to Antony as per Ext.A1, Xavier assigned the eastern portion to Usha as per
Ext.A6 he described the western boundary of the property assigned as per
Ext.A6 as “my property in the said survey number”, the inescapable conclusion
is that even after Ext.A1, Xavier retained some property on the east of the
property referred to in Ext.A1 which was shown as the western boundary in
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Ext.A6. According to the learned counsel, the said property is the 610 sq. links
which is not dealt with as per Exts.A1 or A6. Learned counsel contends that
Ext.A2, assignment deed also would indicate that what Antony got by way of
gift as per Ext.A1 is only the four (4) cents and over the 610 sq. links in dispute
he was only claiming possessory right which cannot defeat the claim of the legal
representatives of Xavier over the said 610 sq. links. Learned counsel for
respondent No.1 would argue that in Ext.A6 the western boundary is described
as “my property in the said survey number” only because as per Ext.A1, Xavier
gifted the property to his grandson, Antony represented by the father of the
latter, property was put in possession of the father for and on behalf of Antony
and since Xavier had retained a life interest for himself in the building referred to
in Ext.A1.
8. Reading of Exts.A1,A2 and A6, there appears to be a conflict in
the extent of property referred to in Ext.A1. If one is to prefer the extent, it has
to be held that the property gifted as per Ext.A1 is only four (4) cents in which
case contention of appellant regarding the disputed 610 sq. links should prevail.
But when there is conflict between boundaries, extent, etc. the one which is
more clear and more specific has to be preferred. In some cases it may be the
extent while in some other cases it may be the boundaries or the side
measurements that would prevail. The rule is one of construction (see Savithri
Ammal Vilasini Ammal v. Jayaram Pillai Padmavathi Amma
(1989 (2) KLJ 709). In Parameswaran Pillai v. Gowrikutty Amma
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(1984 KLT SN. No.111) description by fixed boundaries was preferred to
description by area.
9. I stated from Ext.A6, and it is not disputed by either side also that
what is assigned to Usha as per Ext.A6 is the three (3) cents described by the
side measurements mentioned therein and situated towards the eastern portion
of the 7.610 cents. When Xavier gifted a portion of the property towards the
western side of Antony as per Ext.A1, the remaining portion on the eastern side
belonged to and was in the possession of Xavier. Hence the eastern boundary
description in Ext.A1 is justified. Then the question is whether the extent gifted
is four (4) cents or it takes in the disputed 610 sq. links also. Going by Exts.A4
and A4(a), the said 610 sq. links (marked as plot B in Ext.A4(a)) has a length of
16.9 metres and width 1.05 metres (this is also not disputed by either side). It
extends north-south. Xavier had no property on the north or south of the 7.610
cents so that, he retained the 610 sq. links for his convenient user of such
property on the north or south at the time of Exts.A1 and A6. Going by the
boundary descriptions in Ext.A1, the disputed 610 sq. links cannot be said to
have been excluded by that description though the extent stated is only four (4)
cents. I stated that there was no necessity or occasion for Xavier to retain such
a small strip of land with him for no use at all. One can understand if the dispute
raised was by the assignee of the eastern portion on the strength of Ext.A6.
Yet another circumstance in favour of acceptance of the boundary descriptions
over the extent stated in Ext.A1 is that indisputably and as Ext.A1 says, the
entire building bearing door No.XV/1359 was gifted to Antony and over which
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Xavier retained a life interest. Exts.A4 and A4(a) would show that a small
portion of the said building towards its eastern side also falls in the disputed 610
sq. links and excluding that portion of the building, width of the disputed land on
the east of the building is just 0.6 and 0.8 metres on either side (out of the total
width of 1.05 metres of the 610 sq. links). When it is seen from Ext.A1 that the
entire building is gifted to Antony, necessarily, the land occupied by and
appurtenant the building also should go along with it, unless there is a contrary
intention expressed by the donor that in the disputed 610 sq. links, only that
portion of the building falling in it is gifted and Xavier retained title of the
remaining portion of 610 sq. links. There is no such intention discernible from
Ext.A1 expressly or impliedly. There is nothing to show that at the time of
Ext.A1 a measurement was made and Xavier intended to give away by gift only
the four (4) cents. I stated that the building as a whole is gifted as per Ext.A1.
Necessarily the land appurtenant also should go with it.
10. So far as the boundary description in Ext.A6 is concerned, the
explanation given by respondent No.1 which is appealing is that it was so said
as the gift as per Ext.A1 was in favour of the minor grandson represented by his
father, the father was put in possession and Xavier, the grandfather reserved a
life interest in the building. The western boundary description in Ext.A6 is not
inconsistent with the contention of respondent No.1. Nor am I inclined to think,
in the facts and circumstances of this case that a wrong mention in Ext.A2 as to
the derivation of title over the disputed 610 sq. links in Ext.A2 would cut down
title of the donee under Ext.A1 over the disputed portion and consequently the
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title of respondent No.1 over that portion acquired as per Ext.A2.
11. Learned counsel for appellant has a contention that the executing
court has not conducted a proper enquiry into the matter. But there is no case or
reason to think that any of the parties were denied opportunity to adduce
evidence. Executing court though not in so many words has construed Ext.A1
to hold that appellant’s claim over the disputed 610 sq. links cannot be
sustained.
12. On going through the evidence, facts and circumstances and on
hearing counsel on both sides, I am unable to uphold the title claimed by the
appellant over the disputed plot of land. In the facts and circumstances of the
case the boundary description in Ext.A1 has to be preferred to the area stated
therein and in consequence, the claim petition has to fail. The substantial
question of law framed is answered accordingly.
Resultantly, the Second Appeal fails. It is dismissed.
THOMAS P.JOSEPH,
Judge.
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