Annie (died) W/o. David (late), Vallachirakkaran and Addl Xavier v Vasudevan S/o Gopalan Master (late) and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 ## RSA NO. 766 OF 2004 AGAINST THE JUDGMENT IN AS 178/1999 OF THE ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR OS 1317/1996 OF PRINCIPAL MUNSIFF COURT,THRISSUR ## APPELLANT/S: - 1 ANNIE,(DIED) W/O.DAVID (LATE), VALLACHIRAKKARAN, RESIDING AT OLLUR VILLAGE, ANCHERY SOUTH, PIN-680 006, THRISSUR TALUK. - 2 ADDL.XAVIER, AGED 54 YEARS S/O.DAVID (LATE), VALLACHIRAKKARAN HOUSE, ANCHERY SOUTH, OLLUR VILLAGE, THRISSUR TALUK-680 006 (11TH RESPONDENT IN RSA IS TRANSPOSED AS APPELLANT 2 AS PER ORDER DATED 03.11.2022 IN I.A.3/2020). BY ADVS. K.B.GANGESH ## RESPONDENT/S: - 1 VASUDEVAN S/O.GOPALAN MASTER (LATE), KUNDODI HOUSE, ANCHERY DESOM, OLLUR VILLAGE, THRISSUR TALUK. - 2 BHAGEERADHAN S/O. DO. DO. - 3 VIJAYAN (DELETED) AGED 49 YEARS, S/O. DO. DO. - 4 GIRIJA NANDHANAN D/O. DO. DO. **R.S.A. No.766/2004** **-2-** - 5 SAROJINI D/O. DO. DO. (DELETED) - 6 LAKSHMIKUTTY D/O. DO. DO. - 7 PADMINI D/O. DO. DO. - 8 SIMON ,S/O. VALLACHIRAKKARAN DAVID (LATE) AND 1ST RESPONDENT, DO. DO. (DELETED) - 9 BOBAN S/O. DO. DO. (DELETED) - 10 MATHEWS S/O. DO. DO. (DELETED) - 11 XAVIER S/O. DO. DO. (TRANSPOSED) - 12 SHERLY D/O. DO. DO. (DELETED) - 13 MOLY D/O. DO. DO. (DELETED) - 14 PUSHPA D/O. DO. DO. (DELETED) (RESPONDENTS 8 TO 10 AND 12 TO 14 ARE DELETED FROM THE PARTY ARRAY OF THE RSA AT THE RISK OF THE APPELLANT AS PER ORDER DATED 03.01.2023 IN IA.1/2022.) - 15 RAMAKRISHNAN SO. KUNDODI GOPALAN MASTER (LATE), ANCHERI DESOM, OLLUR VILLAGE, THRISSUR. (DELETED) (RESPONDENTS 3,5 AND 15 (RESPONDENT 14 IN MJC.97/2020) ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER THE ORDER DATED 22.03.2021 IN IA.1/2021 IN MJC.97/2020.) ## **R.S.A. No.766/2004** **-3-** THIS REGULAR SECOND APPEAL HAVING ADMITTED, THE COURT ON 21.06.2023 DELIVERED THE FOLLOWING: **R.S.A. No.766/2004** **-4-** ## J U D G M E N T I have heard Mr K B Gangesh, learned counsel for the appellants. 2. Ramakrishnan and seven others filed O.S. No.1317/1996 before the Court of the Principal Munsiff, Thrissur, against Annie and seven others praying for fixation of boundary and recovery of possession of A schedule property on the strength of title held by plaintiffs. By the judgment and decree dated 25.11.1998, the suit was decreed by fixing the southern boundary of plaint A schedule property as the BF line shown by the Commissioner’s report in Ext.C2(a). Ext.C2(a) has been made part of the Decree. 2.1 The plaintiffs, being aggrieved by the Decree and the Judgment filed A.S. No. 178/1999 before the Court of III Additional District Judge (Adhoc), Thrissur, and the 1[st] **R.S.A. No.766/2004** **-5-** appellate Court by the judgment and decree dated 06.11.2003 allowed the appeal. In substance, accepting the case of plaintiffs, fixed the boundary as CG line decreed the suit and directed the defendants to deliver vacant possession of the strip covered by BCGF, in default, granted the relief of recovery of possession through the process of law. Hence, the second Appeal at the instance of the defendants in O.S. No.1317/1996. 2.2 I refer to the parties as arrayed in the Trial Court for convenience. 3. The case of plaintiffs is that plaint A schedule property originally belonged to Gopalan Master (Deceased), the father of plaintiffs, and their sister Devayani. In 1989 the predecessor-in-interest died. Subsequently, the mother of the plaintiffs also died. Therefore, the plaint schedule property devolved onto the plaintiffs and their sister Devayani. It is averred that there is no demarcation by a fence as the **R.S.A. No.766/2004** **-6-** boundary between the plaint A schedule property and the property belonging to the defendants. The plaintiffs allege that they were about to partition the property with their sister Devayani; the defendants objected to the measurement of the property, now shown as B schedule property which forms part of A schedule property. The case of the defendants is that the B schedule, a portion of A schedule property, belongs to them, and the boundary of the defendants would come up to that point. The plaintiffs have therefore filed the suit for the reliefs stated above. 4. The defendants contested the legality of the suit in the absence of the plaintiffs’ sister Devayani and the defendants, instead of referring to the description of the property as shown by the plaintiff, said on the northern side of the property held by the defendants there is a clear demarcation by concrete pillars showing the boundaries of plaint A Schedule property and the property of the **R.S.A. No.766/2004** **-7-** defendants. In other words, the defendants’ case is that the concrete posts would constitute the boundary between the plaintiffs and the defendants. According to the defendants, no boundary dispute exists between the plaintiffs and the defendants for plaint B schedule property. The defendants have further averred that they have no objection in determining the boundaries of the properties of the plaintiffs and the defendants. The defendants have been in possession of the property within the boundary for several years, and the plaintiffs have no right over any portion of land in the defendants’ possession. 4.1 From the clear-cut averment in the written statement that the defendants have no objection in determining the boundaries of the properties of the plaintiffs and the defendants, from exhibits marked before the Trial Court, it is evidenced that an Advocate Commissioner was appointed. The Advocate Commissioner filed two reports **R.S.A. No.766/2004** **-8-** marked as C1 dated 02.12.1997 and C2 dated 13.01.1998. The parties have marked A1 and A2 for plaintiffs and B1 for defendants. The Advocate Commissioner, with the assistance of parties and work memo given to him, appears to have filed the two reports, marked as Exhibits C1 and C2, before the Trial Court. The Trial court has framed the following issues: “1) What is the correct boundary of plaint schedule property? - 2) Whether plaintiff has got title over the B schedule property? - 3) Whether defendants have prescribed title over the B schedule property? - 4) Reliefs and costs?” 5. The Trial Court, on issue no.1 has found that _nothing is forthcoming on the side of the plaintiffs or on the side of the defendants as to any mistake crept by the Village Assistant in measuring and demarcating the property in dispute under the supervision of the Commissioner appointed in this case. The Commissioner measured and demarcated the property in dispute in_ **R.S.A. No.766/2004** **-9-** _the presence of the parties and the counsel on either side. No objection is raised against the report filed by the Commissioner. No evidence was adduced in this case to show that the demarcation done by the Commissioner with the assistance of the Village Assistant is incorrect_ . 5.1 I am prefacing further consideration with what has been categorically recorded by the learned Trial Judge. The above recording would go to show that the parties desired the Trial Court to decide the boundary dispute by referring to Exts.A1 and A2 on the one hand and Ext.B1 on the other hand and juxtapose with the Commissioner’s report in C1 and C2. The Trial Court accepted the concrete pillars as constituting the boundary between the plaintiffs and the defendants and answered issue no.1 in favour of the defendants and against the plaintiffs. From the above conclusion on issue no.1 it is noted that the other issues have been substantially answered in favour of the defendants and against the plaintiffs. The suit **R.S.A. No.766/2004** **-10-** has been partly decreed, accepting the boundary in Ext.C2(a) as ‘BF’. 6. The plaintiffs claim that they are entitled to boundary fixation as has been shown in Ext.C2 as CG and, in effect, the BFCG portion of the plaint schedule. The first Appellate Court framed the following points for consideration. “1. Whether the southern boundary of A schedule fixed by the court below is proper and correct? 2. Whether the appellants are having title over plaint B schedule? 3. Whether the title of the appellants is lost by adverse possession and limitation? 4. Whether the appellants are entitled to recover possession of plaint B schedule on the strength of title?” 6.1 The first Appellate Court has taken up all the points together for consideration and recorded the conclusions. The Appellate Court decreed the suit and declared that the boundary of plaint A schedule is CG, as more descriptively shown in the Commissioner Report Ext.C2(a) and decreed the **R.S.A. No.766/2004** **-11-** ## suit. Hence the Second Appeal. ## 7. The following substantial questions are raised, and the appeal is admitted on the questions: “1. Was not the First Appellate Court in error in fixing the boundary along CG line when all indications showed that the boundary is along BF line. 2. Was not the First Appellate Court in error in not even considering the question of adverse possession and limitation before granting a decree for recovery of possession, despite there being clear evidence and pleadings in support of such case. 3. Was not the First Appellate Court in error in granting a relief of recovery of property BCGF when there is no prayer for the same. 4. Was not the First Appellate Court in error in not holding that the suit is not maintainable since the suit is not filed after complying with section 14 of the Survey and Boundaries Act.” 8. Learned Counsel K B Gangesh argues that the first Appellate Court erred in law by granting more relief than what has been prayed for in the plaint. The suit is one for fixation of the boundary. The boundary prescribed by the Trial Court **R.S.A. No.766/2004** **-12-** as BF line is more probable and would ensure retention of the property claimed by both parties without giving any extra benefit to one of the parties. He further argues that in a case as the present, the Appellate Court has committed error by relying upon the principle that where the side measurements of the plot are given, the identification of property by referring to side measurements is illegal. He prays to set aside the Decree of the Appellate Court and confirm the Judgment and Decree of the Trial Court. 9. I have perused the Judgment of the first Appellate Court. What needs to be appreciated is: (a) that the defendants have volunteered in the written statement for fixation and identification of boundaries, (b) the Advocate Commissioner appointed by the Court, with the assistance of Surveyor in the presence of the Advocates appearing for the respective parties and Village Assistant, has conducted the survey and identified the properties covered by the respective title deeds. It is **R.S.A. No.766/2004** **-13-** admitted that the plaintiffs and defendants own property in the same survey number. The Commissioner’s report is exhibited as C1 and C2. The defendants did not file objections to the Commissioner’s report. Secondly, for the purpose of justifying the possession of the area declared as the boundary by the First Appellate Court, the defendants have pleaded adverse possession in respect of the vacant property. Therefore, the question for consideration by this Court is whether the First Appellate Court is justified in law and fact in declaring the southern boundary of plaint A Schedule as CG. 9.1 The contentions urged by Mr Gangesh are to be appreciated and answered as readily available in the very consideration of the First Appellate Court. The First Appellate Court juxtaposed the principles of law in suits filed for the fixation of boundaries and property identification. First, the First Appellate Court referred to _when there is a conflict between_ **R.S.A. No.766/2004** **-14-** _the area and boundaries, the boundaries are preferred_[1] . Further, the First Appellate Court noted that _when the extent and the survey number disagree with the boundaries, the boundaries will pre-dominate_[2] . In _Parameshwaran Pillai v. Gowrikutty Amma_[3] , this Court held that _when the document of title shows the side measurements of the property dealt with, the side measurements should be taken as more precise for the identification of the property rather than other factors such as description, survey number, boundaries etc_ . The First Appellate Court, by placing reliance upon the principle laid down in _Parameshwaran Pillai_ (supra), has identified the southern boundary of the plaint ‘A’ schedule as CG line, more descriptively shown in Ext.C2(a). When the appellants point out an intrinsic error, illegality or nonconsideration, then it can be said that the finding of fact recorded by the First Appellate Court is without appreciating > 1 AIR 1948 PC 207 > 2 1995 KLT 647 > 3 1984 KLT SN page 65 Case No.III **R.S.A. No.766/2004** **-15-** the boundaries in the background of principles of law laid down by this Court. The finding of a simple fact recorded by the Appellate Court is beyond the scope of Section 100 of the Code of Civil Procedure, and this Court cannot, in the absence of any other material, find fault with the conclusion recorded by the First Appellate Court. The findings of fact are available, and no exception can be taken. 9.2 Mr Gangesh has further argued that the defendants have acquired title to the disputed area by way of adverse possession. The argument misses one crucial aspect of the matter. The parties are litigating the identification of a boundary regarding vacant land. The defendants have volunteered for the identification of the respective boundaries; in the absence of, the exact extent to which the defendants are entitled and the extent to which they have enjoyed for a statutory period leading to adverse possession cannot be sustained. In the absence of any other evidence, the **R.S.A. No.766/2004** **-16-** plea of adverse possession between neighbouring owners regarding vacant property cannot be accepted as a matter of course. For the above reasons and discussion, the appeal does not warrant interference under Section 100 of the Civil Procedure Code for no substantial question arises. The appeal fails and is accordingly dismissed. No order as to costs. Sd/S.V.N.BHATTI CHIEF JUSTICE jjj