Balagopala Murali Kini v. Uma Devi Mallia

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** ## **THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932** **SA.No. 759 of 1999(F)** **------------------------------AS. 61/1997 OF PRL.SUB COURT, KOCHI. OS. 37/1995 OF PRINCIPAL MUNSIFF COURT, KOCHI. .....** **APPELLANT(S): (APPELLANT IN THE LOWER APPELLATE COURT AND ----------------------- DEFENDANT IN THE TRIAL COURT).** **BALAGOPALA MURALI KINI, S/O. GUNA KINI, RESIDING AT 8/234, T.D.WEST STREET, SOUTH CHERLAI, KOCHI- 2.** **BY SRI.R.D.SHENOY, SENIOR ADVOCATE** **RESPONDENT(S): (RESPONDENT IN THE LOWER APPELLATE COURT & ----------------------------PLAINTIFF IN THE TRIAL COURT).** **UMA DEVI MALLIA, D/O. VISWANATHA MALLIA, RESIDING AT 8/231. T.D.WEST STREET SOUTH CHERLAI, KOCHI-2** **BY ADVS. SRI.K.V.SADANANDA PRABHU SRI.A.S.BHAT** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON 24/02/2011 DELIVERED THE FOLLOWING:** **tss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 759 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of February, 2011. ## **JUDGMENT** The defendant, who suffered a decree at the hands of the courts below in O.S. 37 of 1995 before the Principal Munsiff's Court, Kochi is the appellant. 2. The suit related to 0.350 cents of land, which the plaintiff is said to have acquired under Ext.A8 dated 13.1.1995. That portion of the property is shown as B schedule, which in fact forms a part of A schedule property and lies at rear portion of the property obtained by the plaintiff. This is a narrow strip of land. 0.350 cents was earlier left as the lane for sanitation purpose and later on when that practice was put an end to, the property began to be used for other purposes by the plaintiff. The defendant has set up a false claim to plaint B schedule property on the basis of some documents alleged to have been obtained from Thirumala Devaswom. The defendants have no manner of right over the suit property. Hence they seek a 2 declaration and consequential reliefs in respect of that item of property. 3. The defendants resisted the suit by pointing out that they had purchased 0.500 cents of land as per Ext.B1 dated 31.8.1985. The property is comprised in Sy. No. 1958/2 and the plaintiff has no property in Sy. No.1958/2. The claim regarding B schedule as forming part of A schedule property and the further claim that the plaintiff is entitled to the said item of property are without any basis. The claim of having left a narrow strip of land on the rear portion for sanitation purpose is a false claim and it is intended only with the object of reducing a portion of the property belonging to the defendant into the possession of the plaintiff. On the basis of these contentions, they prayed for a dismissal of the suit. 4. On the above pleadings necessary issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A11(a) from the side of the plaintiff. The defendants had S.A.759/1999. 3 D.Ws. 1 and 2 examined and Exts.B1 to B3(a) marked. Exts.C1 and C1(a) are the commission report and plan. Exts.X1 and X1(a) are third party exhibits. On a consideration of the materials before it, the trial court came to the conclusion that the claim of the plaintiff that plaint B schedule property forms part of A schedule property and the plaintiff is entitled to absolute possession and enjoyment of the same was justified and decreed the suit as prayed for. The disappointed defendant carried the matter in appeal as A.S. 61 of 1997 before the Principal Sub Court, Kochi. The lower appellate court after an independent evaluation of the evidence found that there was no justification for interfering with the judgment and decree of the trial court and confirmed the same. That has brought the defendants before this court. 5. Notice is seen issued on the following questions of law: S.A.759/1999. 4 _“a. Is not the presumption that title to the property must be deemed to be in accordance with survey subdivision to be drawn?_ _b. In cases where there is no ambiguity in the description of the boundaries or the survey numbers, but then area stated in the document does not tally with either the boundaries or the survey numbers, is not the presumption based on survey subdivision is to be adopted?_ _c. Was it not the intention of the landlord Devaswom to exclude plaint B schedule property from the demise?_ _d. Judged by the intention of the Jenmy, coupled with the fact that the liability to pay rent in respect of 0.5 cents is on the Devaswom, is plaint B schedule property included in the lease hold right involved in the case._ _e. Is it not incumbant on the courts below to find out the intention of the parties before choosing to apply the rule of preferring boundaries to the extent.”_ 6. The principal contention raised before this court by the learned counsel for the appellant is that the 5 S.A.759/1999. courts below were not justified in the case on hand in applying the principle that identity of the property obtained by a person should be ascertained with reference to its boundaries. According to learned counsel, that is not an inflexible rule and depends upon the facts of each case. It is also contended that the courts below ignored the survey number of the property, which according to learned counsel is crucial in the case on hand. The plaintiff never had a case that she possessed any portion of the land comprised in Sy. No. 1958/2 and her claim was confined to Sy. No. 1958/1. In support of his contention, learned counsel relied on the decisions reported in **Achuthan Unni v. Vally** (1962 K.L.J. 400), **Appukutty v. Kuniyil Achuthan** (ILR 1989(1) Kerala 218) and **Savithri Ammal v. Padvathi Amma** (1990(1) K.L.T. 187). Learned counsel went on to contend that applying the principle laid down in the above decision it can be found that the judgments and decrees of the courts below are clearly unsustainable in law. S.A.759/1999. 6 7. On the contrary, learned counsel appearing for the respondent pointed out that both the courts below have considered in detail the various aspects and have found that the safest method is to rely on the boundaries made mention of in the respective documents rather than to rely on the survey number or the extent. While learned counsel did not dispute that relying on boundaries is not the only mode of identification, learned counsel went on to contend that it was the normal and safest method and there is no reason to make a departure in the case on hand. The contention raised by the appellant that the plaintiff can have no property in Sy. No.1958/2 is without any basis. That can be seen on an evaluation of the evidence in the case. Learned counsel concluded by pointing out that there is nothing to indicate that the findings are either perverse or unwarranted by the evidence on record and no interference is called for under Section 100 of the Code of Civil Procedure since no substantial question of law is involved in this case. S.A.759/1999. 7 8. As noticed at the outset itself, the suit relates to an extent of 0.350 cents of land comprised in Sy. No.1958/2. The plaintiff traces his title to Exts. A4, A8 and A9, which have been dealt with in detail by the courts below and it is unnecessary to refer to the recitals of those documents again. The defendants on the other hand relied on Ext.B1 document, which is dated 31.8.1985 in support of their case. It is true that the documents of title of the plaintiff show that the property obtained by her is in Sy. No.1958/1. In fact the total extent of land possessed by the predecessor in interest of the plaintiff was 6 cents in Sy. No.1958/1. The southern 3 cents was sold to the plaintiff and the northern 3 cents was sold to another person. Neither the plaintiff's document of title nor the document of title of the defendant show the side measurements, but the document of title produced by the defendant shows that his property is comprised in Sy. No. 1958/2. 9. In the decisions reported in **Achuthan Unni's case** (supra) it was observed as follows: 8 _“The survey and demarcation of lands by the State have a purpose; they are intended to identify the different pieces of land so as to regulate the rights of landholders. Rights in land will normally be presumed to be in terms of the survey divisions. When a person is admitted or found to be in possession of a survey division, the presumption is of such possession being coextensive with the survey division concerned; and he is not to be constrained to prove his possession of every inch of it. It is then for the person who asserts the contrary to prove by positive evidence that a defined portion thereof is in his adverse possession and has been lost to the owner thereof.”_ ## 10. In the decision reported in **Appukutty's case** (supra) it was held as follows: _“The entries in the revenue records are good evidence in the absence of proof that those entries are fraudulent or forged. In Vishwa Vijai Bharti v. Fakhrul Hasan and others the Supreme Court observed as follows:-_ “It is true that the entries in the revenue record ought, generally, to be accepted at their S.A.759/1999. 9 face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.” _In Commissioner of Wealth Tax Andhra Pradesh v. Officer in charge (Court of Wards), Paigah, the Supreme Court held that entries in revenue records are good prima facie evidence since they are based on some quasi judicial enquiry. This position ha reiterated by the Supreme Court in Mohinder Singh v. State of Punjab and others where it was held that the entry in the revenue records is an important piece of evidence.”_ 11. In the decision reported in **Savithri Ammal's case** (supra) it was held as follows: S.A.759/1999. 10 _“In cases where there is a difference in the extent and the boundary covered by a document, one or the other which is clearer and more specific has to be preferred. In some cases it may be the boundary. In some other cases it may be the extent and in yet other cases it may be the side measurements. There is no invariable rule, in this regard. The usual rule is that when there is a conflict between the area and the boundaries, the description of the boundaries should be accepted in preference to the area mentioned in the document for determining the extent of the land conveyed thereunder. this is not an inflexible rule When from the proved circumstances it is clear that the intention of the parties was only to convey the extent mentioned in the document, even though the boundaries would take in a larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail.”_ In all these decisions, the common principle that is involved is that it is not an inflexible rule that when identification of the property is involved, the court should rely on the boundaries alone. Revenue records, survey number shown S.A.759/1999. 11 in the document and the extent of the property may assume importance in particular cases. In short, it is clear that it is not an inflexible rule that always the boundaries will have to prevail. It therefore follows that the court has to clearly analyse the materials on each case and apply the appropriate principle to resolve the dispute involved in each case. 12. Learned counsel for the respondents relied on the decisions reported in **Subramonian v. Cheeran Variathu** (AIR 1950 Travancore-Cochin 19), **Y. Subba Rao v. Amizunnisa Begum** (AIR 1984 NOC 300 (Andh.Pra.), **Raghunandan v. Kishundeo** (AIR 1926 Patna 257), and **Subbaya Chakkiliyan v. M. Muthia Goundan** (1924 Madras 493). In the above decisions, it has been observed that normally when identification of the property is involved, the safe course is to identify the property with reference to its boundaries. S.A.759/1999. 12 13. The question is whether the approach of the courts below in ascertaining the property claimed by the plaintiff with reference to its boundaries is proper. 14. Here, one may have to refer to the commission report. As already noticed, the predecessor in interest of the plaintiff had 6 cents of property, out of which he sold 3 cents on the northern side, shown on the western side of the defendant's property to another person. The southern portion situated on the western side of the defendant's property was sold to the plaintiff. The extent so sold is 3 cents going by Ext.A3 document. The commissioner has noticed that the northern portion of 3 cents on site measures 3.285 cents and if one goes by the measurements, the property in Sy. No. 1958/1 given to the plaintiff, measures only 2.500 cents. From the commission report, it can be seen that if only the two portions having an extent of 0.150 cents and 0.350 cents in Sy. No. 1958/2 is taken into consideration, then alone the plaintiff can have 3 cents. S.A.759/1999. 13 15. On the other hand, the defendants have as per Ext.B1 has only an extent of 8 cents. But it is seen that the defendant is in possession of 8.165 cents of land. It can thus be seen that it will not be proper for the courts below to proceed on the basis of the extent of property. 16. The commission report has also noticed that on the northern side of .350 cents, which is identified as the disputed portion, there lies a portion having an extent of 0.150 cents of land comprised in the same survey number. Dividing these two portions, even the commission report shows that there is a boundary wall with a gate put up by the defendant. Therefore, it is clear that atleast with respect to 0.150 cents of land comprised in Sy. No. 1958/2 the plaintiff had been asserting rights. The defendant can have no claim regarding that portion of the property. 17. One may also refer to the oral evidence in the case on hand. P.W.1 is the husband of the plaintiff. He speaks about his case in examination. P.W.2 is a person, who resides on the southern side of the property owned and S.A.759/1999. 14 possessed by the defendant as well as the plaintiff. He speaks about the leaving of a narrow strip of land on his southern side by the owners of the property on the northern side for sanitation purpose as claimed by the plaintiff. He would also say that since the scavenging had been put an end to, the lane is no longer in use for sanitation purpose, the respective owners on the northern side have reduced these portions on their southern side into their possession. 18. One of the arguments advanced by the learned counsel for the appellant is that since the commission report makes mention of a boundary wall with a gate separating his 0.150 cents and 0.350 cents comprised in Sy. No.1958/2 it follows that atleast with respect to .350 cents in Sy. No.1958/2 the plaintiff cannot have any claim and that should belong to the defendant. 19. The argument may look attractive at the first blush. But on a close scrutiny, it can be seen that it is without any basis whatsoever. From the above discussion, it could be easily seen that it is not safe to go by the extent of S.A.759/1999. 15 land or by the survey number, in which the properties are comprised in. It was under these circumstances both the courts below were persuaded to adopt the usual and normal principle of identifying the property with respect to the boundaries. 20. Exts.A9, A4 and A8, based on which the plaintiff claims title to the suit property show the southern boundary as property belonging to one Narayana Vadhyar Ramachanra Vadhyar. The property of Narayana Vadhyar is comprised in Sy. No.322. Going by the boundaries, property covered by Exts.A4, A8 and A9 takes in both 0.150 and .350 cents in Sy. No. 1958/2. It has already been noticed that if the plaintiff is entitled to have his entire 3 cents obtained by him under Ext.A8, necessarily that will have to take in 0.150 cents and 0.350 cents in Sy. No.1958/2. At the same time, it has also to be noticed that even though the defendant claims to have obtained 8 cents as per Ext.B1 document, the is in actual possession of much more extent than what is mentioned in Ext.B1. S.A.759/1999. 16 21. Learned counsel appearing for the appellant also contended that the plea that southern portion of the property owned and possessed by the plaintiff was set apart for sanitation purpose is not established, and that is only a ruse to claim the property comprised in Sy. No.1958/2. 22. The above contention has no basis whatsoever. Apart from the evidence adduced by P.W.1, P.W.2 also gave evidence in that regard. There is nothing to show that P.W.2 had any reason to favour the plaintiff. His evidence was found to be acceptable by both the courts below. There is no reason to disbelieve him. It has already been noticed that the existence of the boundary between 0.150 cents and 0.350 cents comprised in Sy. No.1958/2 put up by the defendant by itself is not a ground to deny the relief to the plaintiff. The courts below also chose to rely on Ext.A11, which is a copy of the deposition of the defendant in an earlier suit as O.S.61 of 1986 instituted by him. Even without placing reliance on that deposition, it can be seen that the normal rule is that the property shall be identified S.A.759/1999. 17 with respect to the documents of title relied on in the case on hand. The courts below are perfectly justified in applying the said principle for identifying the property as per Ext.A8 and similar documents. There is nothing to show that the courts below have erred in any manner, either in appreciating the evidence in the case or coming to the conclusion that the boundaries should prevail. By no stretch of imagination it could be said that the findings are either perverse or unwarranted by the evidence on record. The result is that, this second appeal is without any merit. No question of law, much less any substantial question of law, arises for consideration in this second appeal. This second appeal therefore stands dismissed. However, there will be no order as to costs. ## **P. BHAVADASAN, JUDGE** sb.