Bhargavi and others v. Vijayan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931** **RSA.NO. 1337 OF 2009()** **---------------------------------** **AS.323/2007 OF II ADDL.SUB COURT,THRISSUR OS.6/2002 OF MUNSIFF COURT VADAKKANCHERRY** **....................** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **--------------------------------------------------------** **1. BHARGAVI, W/O.CHEENIKKAL SUBRAMANIAN, KADANGODE VILLAGE, KIZHAKKUMURY DESOM, TALAPPILLY TALUK.** **2. ANILAN, S/O.BHARGAVI, CHEENIKKAL HOUSE, KADANGODE VILLAGE, KIZHAKKUMURY DESOM, TALAPPILLY TALUK.** **3. SUNILAN, S/O.BHARGAVI, CHEENIKKAL HOUSE, KADANGODE VILLAGE, KIZHAKKUMURY DESOM, TALAPPILLY TALUK.** **BY ADV. SRI.K.P.SUDHEER SMT.P.JAYALAKSHMI** ## **RESPONDENT(S): RESPONDENT/PLAINTIFF** **----------------------------------------------------------** **VIJAYAN, S/O.OOTTUKAZHIYIL NARAYANAN, KIZHAKUMURI DESOM, KADANGODE VILLAGE, THALAPPILLY TALUK.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **R.S.A. NO.1337 of 2009** = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23[rd] day of December, 2009 ## **J U D G M E N T** ---------------------- This Second Appeal arises from judgment and decree in A.S. No.323 of 2007 of learned Second Additional Sub Judge, Thrissur confirming judgment and decree in O.S. No.6 of 2002 of learned Munsiff, Wadakkancherry. Respondent sued appellants for a decree for recovery of possession on the strength of title. According to the respondent plaint A schedule described as 5½ cents comprised in Sy.No.775/2 belonged to him. On the north of that property is the property of appellants comprised in Sy.No.775/1. It is the case of respondent that at a time when he was out of station on 17.11.2001 appellants trespassed into the northern portion of plaint A schedule and reduced that portion into their possession which is described in the plaint B schedule. That portion is sought to be recovered on the strength of title. Appellants denied the allegation of encroachment and claimed that respondent is having more extent than what is stated in his title deed. It is contended that there is no boundary between the two properties. It is also contended that plaint B schedule does not form part of plaint A ## **R.S.A. No.1337 of 2009** ## -: 2 :- schedule and at any rate appellants have perfected title over plaint B schedule by adverse possession and the law of limitation. Trial court found in favour of the respondent with respect to title of plaint B schedule property against the appellants in their plea of adverse possession and limitation and granted a decree in favour of the respondent. Challenging that judgment and decree appellants filed appeal but in vain. Hence this Appeal. It is contended by learned counsel for appellants that respondent cannot win on the weakness of the case of appellants this being a suit on title and placed reliance on the decisions in **Narayana Iyer v. Vella** (1988 [1] KLT 856) and **Ramachandra Sakharam Mahajan** **v. Damodar Trimbak Tanksale** ([2007] 6 SCC 737). It is also submitted by learned counsel that in the first appellate court two applications were filed; one for reception of additional evidence and the other, for appointment of a fresh Commissioner to measure the properties with reference to documents of title and with the assistance of the Taluk Surveyor. First appellate court dismissed those applications and the appeal. That according to the learned counsel, is illegal. 2. There could be no dispute that in a suit on title plaintiff has to win on the strength of his title and that weakness of case of ## **R.S.A. No.1337 of 2009** ## -: 3 :- defendant is no ground to grant relief in favour of the plaintiff. In the present case respondent claimed title over the disputed property as per Ext.A1 and produced Ext.A2, purchase certificate to prove payment of revenue for the said property. According to the respondent his entitlement is in Sy.No.775/2. I have gone through the copy of written statement filed by the appellants and given to me for perusal by the learned counsel. Nowhere in the written statement it is pleaded that appellants have any inch of land in Sy.No.775/2. Claim of appellants is only in Sy.No.775/1. There is also no dispute regarding survey number or re-survey number as the case may be. Therefore claim of appellants must be confined to the property comprised in Sy.No.775/1. There is also dispute regarding survey number or re-survey number as the case may be. A further fact to be noted is that appellants did not produce their document of title in the trial court nor was any document made available to the Commissioner at the time of inspection. Commissioner measured the properties with the assistance of the Taluk Surveyor and prepared Exts.C1, C1(a), C2 and C2(a), reports and plans. Commissioner has shown the disputed property as plot B in Ext.C2 (a) measuring 587/1000 cent and falling in Sy.No.775/2 in which admittedly respondent owns property and in which survey number ## **R.S.A. No.1337 of 2009** ## -: 4 :- appellants have no claim. Commissioner has also found after measurement of the property that disputed property formed part of plaint A schedule belonging to the respondent. Entitlement of appellants is only over the property comprised in Sy.No.775/1 which admittedly is situated on the north of the disputed plaint B schedule. It is true that on measurement it is found that respondent is entitled to more extent than stated in Ext.A1, by cents and measurements but descriptions in Ext.A1 and plaint A schedule tallied with the descriptions given by the Advocate Commissioner as regards the boundaries and survey number, inconsistency being only as regards the extent. It has been held by this Court in **Savithri Amma** ## **Vilasini Amma v. Jayaram Pillai Padmavathy Amma** (1989 [2] KLJ 709) that when there is conflict between survey number, extent, measurement, boundaries, etc., there is no invariable rule that one should prevail over other, it is a matter of construction of the document and that one which is clearer and specific has to be preferred. In **Parameswaran Pillai v.** **Gowrikutty Amma (1984 KLT SN Case No.111)** description by fixed boundaries was preferred to description by area. In the present case appellants have no claim over sy.No.775/2 in which ## **R.S.A. No.1337 of 2009** ## -: 5 :- plaint A schedule lies and plaint B schedule is found to be. In the present case descriptions by boundaries and survey number tallied which was preferred over extent. It is also seen that of the 43 cents belonging to the appellants in Sy.No.775/1 they have sold 16 **¼** cents to one Velayudhan and even excluding plaint B schedule, appellants are in possession of more extent than they are entitled to, by half a cent. Therefore it is not as if the disputed property forms part of the property of the appellants. 3. As to the applications preferred before the first appellate court; one was for reception of additional evidence. It is a case where respondent produced his documents, claimed title and the Advocate Commissioner after measurement found that disputed property forms part of the property of the respondent. Documents if relevant for enquiry ought to have been produced by the appellants in the trail court. So far as the request for fresh measurement of the properties is concerned, it is not as if court can call for successive reports. A second report can be called for when the first report is not acceptable or further materials are necessary to be obtained for disposal of the case. None of those situations arise in this case. In these circumstances courts below are justified in finding title as pleaded by the respondent. On the evidence on record, the plea of ## **R.S.A. No.1337 of 2009** **==> picture [34 x 9] intentionally omitted <==** adverse possession was also negatived. No substantial question of law as urged is involved requiring admission of this Second Appeal. Second Appeal is dismissed in limine. Interlocutory Application No.3068 of 2009 shall stand dismissed. **THOMAS P.JOSEPH, JUDGE.** vsv ## **R.S.A. No.1337 of 2009** -: 7 :- **THOMAS P.JOSEPH, J. =================== R.S.A. NO.1337 OF 2009 ===================** **J U D G M E N T** **23RD DECEMBER, 2009**