C. V. Thankappan & Anil Kumar v. Chelamma and others (RSA No. 1249 of 2005)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 12TH DAY OF OCTOBER 2012/20TH ASWINA 1934** ## **RSA.NO. 1249 OF 2005 ( )** **-------------------------------------AS.194/2001 OF DISTRICT COURT, TRIVANDRUM OS.167/1993 OF PRINCIPAL SUB COURT, ATTINGAL** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** **------------------------------------------------------------** **1. C.V. THANKAPPAN, S/O. RAMAN, EX-SERVICEMAN, SANTHI NILAYAM, UMAN PALLIKKARA DESOM, PZHAYA KUNNUMMAL VILLAGE.** **2. ANIL KUMAR, S/O.DAMODARAN, EMPLOYEE, PARAMUKALIL VEEDU, VATTATHAMARA KUNHIL MURI, KADAKKAL VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER, C.V. THANKAPPAN, 1[ST] APPELLANT.** **BY ADV. SRI.G.S.REGHUNATH** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS 3 TO 5:** **------------------------------------------------------------------------------** **1. *CHELLAMMA, D/O.PARVATHY, RAJA BUILDING, UMAN PALLIKKARA DESOM, PAZHAYA KUNNUMMEL VILLAGE FROM PUTHEN VEEDU (POONOTHOTTUKONATHU PULIVILKATHU VEEDU), MAVARKKAL DESOM, ALAMCODE VILLAGE (EXPIRED).** **2. BHUVANENDRAN, S/O.DIVAKARAN, MERCHANT, KALYANI BHAVAN, UMAN PALLIKKARA DESOM, PAZHAYAKUNNUMMEL VILLAGE.** ## **R.S.A. No.1249 of 2005** **3. AJAYAKUMAR, S/O. SREEDHARAN, MERCHANT, PARAYADIYIL VEEDU OF DO. DO.** **4. MASOODU ABDUL RAHMAN, RETIRED TEACHER LAILA VILASAM, THATTATHU MALA, PAZHAYAKUNNUMMEL VILLAGE AND DESOM.** **5. VIJAYAN, S/O.VISWAMBHARAN, VENGAVILA PUTHEN VEEDU, KAATTADIMOODU, VELLARA VATTOM, CHADAYA MANGALAM, KOTTARAKKARA.** **6. VIMALAN, S/O.VISWAMBHARAN, SAJI BHAVAN, DO. DO.** **7. BABU, S/O.VISWAMBHARAN, KATTADI MOODU, VELLARA VATTOM.** ***IT IS RECORDED THAT THE FIRST RESPONDENT EXPIRED ON 30.1.2007 AND THAT SHE HAS O LEGAL HEIRS VIDE ORDER DATED 5.3.2012 IN MEMO BEARING CF 2150/2007.** **BY ADV. SRI.R.S.KALKURA** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.1249 of 2005 ==================================== Dated this the 12[th] day of October, 2012 J U D G M E N T** This Second Appeal is drawn from the judgment and decree of learned District Judge, Thiruvananthapuram in A.S. No.194 of 2001 confirming the judgment and decree of learned Sub Judge, Attingal in O.S. No.167 of 1993. Parties are referred as plaintiffs and defendants as in the trial court. 2. Appellants-plaintiffs sued the respondents-defendants for a declaration that the 2[nd] plaintiff has title and possession of the suit property, for a decree for mandatory injunction directing defendants 1 to 3 to close the opening made by them on the southern veranda described in the plaint schedule, for eviction of defendants 3 and 4 from shop room Nos.1 and 2 referred to in the plaint schedule with measne profits and for prohibitory injunction to restrain the defendants from causing damage to the suit property, creating documents or inducting third parties into possession thereof. 3. The suit property is described in the amended plaint **R.S.A. No. 1249 of 2005** -: 2 :- schedule as 40 sq. mts in Sy. No.114/1/5 where the two shop rooms and veranda on its rear (western) side (forming the northern portion of the 8 cents which forms the southern portion of a total extent of 16 cents), extending to 90 sq.mts as per measurement and the resurvey records and falling in R.S. No.347/24. According to the plaintiffs the 16 cents originally belonged to Ummini Govindan who executed Ext.A3, Will dated 14.10.1981 disposing of the said 16 cents to the persons referred to therein. The two rooms towards the northern portion of the 8 cents (which formed the southern half of the 16 cents) was bequeathed to Anila and Anuja, his grand children, then minors as the 4[th] Schedule of the said Will. Ummini Govindan died in the year, 1984. Thereafter the Will was registered. By Ext.A1, assignment deed of the year, 1992 Anila and Anuja transferred their right, title, interest and possession of the suit property to the 2[nd] plaintiff. The 1[st] plaintiff is the Power of Attorney holder of the 2[nd] plaintiff. Defendants 3 and 4 are the tenants of shop rooms 1 and 2 (referred to in the plaint schedule). They have attorned to the 2[nd] plaintiff by paying rent upto December, 1992 and thereafter defaulted payment. Exhibit A6 notice was issued to defendants 3 and 4 terminating the tenancy and demanding **R.S.A. No. 1249 of 2005** ## -: 3 :- vacant possession but they refused. 4. It is the case of the plaintiffs that the 40 sq.mts bequeathed to Anila and Anuja as per 4[th] Schedule of Ext.A3, Will took in, its rear (western) veranda as well as revealed by the description of the 4[th] Schedule of Ext.A3 but by inadvertence the testator omitted to mention the veranda on the rear (western) side of shop rooms 1 and 2 in the 4[th] Schedule of Ext.A3. The intention of Ummini Govindan was to bequeath the said veranda portion also to Anila and Anuja. They in turn conveyed their right, title, interest and possession of the veranda portion also to the 2[nd] plaintiff. 5. Later the plaint was amended and paragraph 8(a) was incorporated to state that as per the resurvey, the total extent of land covered by the 4[th] Schedule of Ext.A3 is 0.0090 hectares. 6. It is further stated that Ummini Govindan had not retained any portion of the total extent of 16 cents while executing Ext.A3, Will. If the 40 sq.mts (one cent) mentioned in the 4[th] Schedule to Ext.A3 is to be given to Anila and Anuja (as per Ext.A3) the veranda portion behind the said rooms should also come within the 4[th] Schedule of Ext.3, Will. Thus the plaintiffs claimed that the veranda portion on the rear (western) ## **R.S.A. No. 1249 of 2005** -: 4 :- side of room Nos.1 and 2 specifically mentioned in the 4[th] Schedule of Ext.A3 also formed part of property bequeathed to Anila and Anuja who by Ext.A1, assigned that portion also to the 2[nd] plaintiff. 7. Defendants 1 to 4 remained ex parte. The 4[th] respondent-5[th] defendant disputed the plaint claim and contended that the veranda portion behind room Nos.1 and 2 referred to in the 4[th] Schedule of Ext.A3, Will does not form part of the bequest to Anila and Anuja. It is contended that what was bequeathed to Anila and Anuja is only the 40 sq. mts (one cent) which takes in shop room Nos.1 and 2 alone. The veranda portion on the rear side (western) of the said rooms was not in existence at the time of Ext.A3. After the death of Ummini Govindan, his legal heirs (Anila and Anuja admittedly are not the legal heirs of Ummini Govindan) released their right over the veranda portion and other items to Surendra Babu (another legal heir of Ummini Govindan) as per document Nos.2058 and 2083 of 1994. The said Surendra Babu, as per Ext.B1, assignment deed dated 08.08.1994 (after the institution of the suit) conveyed right, title, interest and possession of the 13 cents including the disputed veranda portion falling in Sy. No.116/1 to the 5[th] defendant. Thus ## **R.S.A. No. 1249 of 2005** ## -: 5 :- the 5[th] defendant is the owner of the disputed veranda portion. The contention that in the 4[th] Schedule of Ext.A3, Will the veranda portion was inadvertently omitted to be mentioned is disputed by the the 5[th] defendant. 8. The trial court refused to accept the case of the plaintiffs and non-suited them. The first appellate court held that on a reading of Ext.A3, Will it is clear that the intention of the testator was only to bequeath the specific property mentioned in the 4[th] Schedule to Anila and Anuja and what they acquired as per Ext.A3, Will is the 40 sq. mts where the two shop rooms are situate. They could not therefore, convey title, interest, or possession of any area more than what they got as per Ext.A3 to the 2[nd] plaintiff as per Ex.A1. The 2[nd] plaintiff has acquired no right, title, interest or possession over the disputed property. Holding so, the appeal was dismissed. Hence this Second Appeal. 9. The following substantial questions of law are framed for a decision: (i) When the plaintiffs and defendants claim title and possession on the basis of the respective **R.S.A. No. 1249 of 2005** ## -: 6 :- title deeds obtained by them, should not the court below decide the case without casting the burden of proof on the plaintiffs alone? (ii) Is not the lower appellate court bound to give importance to preponderance of probability in deciding the rights claimed by the plaintiffs and the defendants? 10. The learned counsel for the appellants-plaintiffs contended that neither of the courts below attempted to understand the true intention of the testator while executing Ext.A3. It is argued by the learned counsel that by Ext.A3, the entire 16 cents Ummini Govindan had in old Sy. No.114/1 is bequeathed to the persons referred to in Ext.A3 and that Ext.A3 does not show that the testator had retained title or possession of any portion of the 16 cents in Sy. No.114/1. It is argued that of room Nos.1 to 7 (which takes in the 8 cents being the southern half of the 16 cents), room Nos.6 and 7 admittedly had no veranda on its rear (western) side as that portion was a storied building. But the Will proceeds as if room Nos.6 and 7 also had verandas on its rear (western) side. That is a mistake. On **R.S.A. No. 1249 of 2005** ## -: 7 :- the other hand room Nos.1 and 2 (included in the 4[th] schedule bequeathed to Anila and Anuja) had verandas on its rear (western) side but by inadvertence the same was omitted to be mentioned in the 4[th] schedule of Ext.A3. That, such mistakes occurred while executing Ext.A3 was not taken into account by the courts below. Learned counsel submitted that the court has to understand the intention the testator had at the time of execution of Ext.A3. Reliance is placed on the decision in **Keshav Kumar Swarup** **v. Flowmore Private Limited** ([1994] 2 SCC 10 – paragraph 3). The learned counsel has also placed reliance on the decision in **Harikrishna Lal v. Babu Lal Marandi** ([2003] 8 SCC 613 – paragraph 13) to contend that a wrong description in the 4[th] Schedule of Ext.A3, Will need not deter this Court from deciding title and possession in favour of the 2[nd] plaintiff. It is argued that Exts.A13 and X1 would show that the old survey number114/1 corresponds to R.S. No.347/24. If that be so, the admitted portion belonging to Anila and Anuja and the disputed portion must fall in R.S. No.347/24. The learned counsel, with reference to Exts.A3, X1, and Exts.C1 and C1(a), report and plan submitted by the Advocate Commissioner argued that there is no possibility of any portion of old survey No.116 **R.S.A. No. 1249 of 2005** ## -: 8 :- referred to in Ext.B1, assignment deed in favour of the 5[th] respondent (R.S. No.347/25) coming towards the rear (western) side of room Nos.1 and 2 as described in Ext.B1. It is argued that survey number 116/1 does not come anywhere near survey number 114/1 so that, the 5[th] defendant could lay hands on the disputed property as if it is comprised in old Sy. No.116/1. Evidence of P.W.3, the Village Officer would show that the resurvey has become final. In view of Sections 13 and 13A of the Survey and Boundaries Act as amended in the year, 2007 any complaint against re-survey ought to have been preferred by the assignors of the 5[th] defendant within the time prescribed but the evidence of the 5[th] defendant as D.W1 would show that no such complaint was preferred by them. Defendants 1 to 4 who remained ex parte in the trial court have mischievously put up the 5[th] defendant to contest the suit on the strength of Ext.B1 executed after filing of the suit. According to the learned counsel, Exts.A13 and X1 and other revenue records showing the disputed portion as falling in R.S. No.347/24 and standing in the name of the 2[nd] plaintiff could be accepted and acted upon. Reliance is place on the decisions in **Kalukurumban v. Sarojini Amma** (1997 [1] KLT 481) and **Appukutty v.** **R.S.A. No. 1249 of 2005** ## -: 9 :- **Achuthan** (ILR 1989 [1] Kerala 218) to contend that in the absence of evidence of fraud, entries in revenue records are good evidence of title. It is argued that the courts below have not appreciated the evidence in the correct perspective and that lack of proper appreciation of evidence would amount to a substantial question of law. Reliance is placed on the decisions in **Yadarao Dajiba Shrawane v. Nanilal Harachand Shah** ([2002] 6 SCC 404) and **Rattan Dev v. Pasam Devi** ([2002] SCC 441). 11. Per contra, it is argued by the learned counsel for the 5[th] respondent-5[th] defendant that the entitlement of Anila and Anuja and consequently of the 2[nd] plaintiff is only for room Nos.1 and 2 situated towards northern portion of the 8 cents (which formed the southern half of the 16 cents) and falling in old Sy. No.114/1. It is argued that there is no mention of the veranda on the rear (western) side of the said rooms in the 4[th] Schedule of Ext.A3. The contention that the testator, by inadvertence omitted to mention the veranda on the rear (western) side of room Nos.1 and 2 in the 4[th] Schedule of Ext.A3 cannot be accepted. It is argued that a perusal of the various Schedules and items thereunder in Ext.A3 would show the real intention of the ## **R.S.A. No. 1249 of 2005** ## -: 10 :- testator. The learned counsel submits that when the document is clear and unambiguous, extrinsic aid to understand the intention of the testator is not called for. Reliance is placed on the decision in **Sivaraman v. Gopala Iyer** (AIR 1969 Kerala 246). The learned counsel submits that in many of the schedules of Ext.A1 the properties are described by the side measurements even. It is argued that there is no evidence to show that the disputed verandas on the rear (western) side of room Nos.1 and 2 were in existence at the time Ext.A3, Will was executed. Exhibit A3, Will executed on 14.10.1981 was registered only after the death of Ummini Govindan in the year, 1984. During the period from 14.10.1981 till the death of Ummini Govindan in the year, 1984 neither he nor any of the legatees under Ext.A3 took steps to get the so called mistake or inadvertent omission corrected in the manner known to the law. There is serious dispute to the resurvey and measurements. Complaint is preferred against the resurvey as is revealed by the evidence. According to the learned counsel, the resurvey which was done in the year 1993 has not become final as the evidence of P.W.3, the Village Officer and the documents reveal. It is also pointed out that even otherwise Exts.A13 and C1(a) are faulty - R.S. No.347/25 is ## **R.S.A. No. 1249 of 2005** ## -: 11 :- shown as situated towards the immediate south of the suit property (room Nos.1 and 2 and the verandas on its rear [western] side). It is argued that as per Ext.A3, and it is not disputed also that room Nos.3 to 7 are situated on the immediate south of room Nos.1 and 2. Room Nos.3 to 7 also are comprised in old survey No.114/1 (which if the resurvey is correct, should correspond to R.S. No.347/24) but going by Exts.A13, C1 and C1 (a) it would appear that if the property on the immediate south of the suit property is comprised in R.S. No.347/25, room Nos.3 to 7 should also be in R.S. No.347/25 (corresponding to old survey No.116/1). The learned counsel argued that the Advocate Commissioner has simply copied in Ext.C1(a) the measurements given in Ext.A13 and hence Ext.C1(a) cannot be accepted or acted upon. The entries in revenue records cannot convey title. Reliance is placed on the decision in **Balwant Singh v. Daulat Singh** (AIR 1997 SC 2719). A further argument the learned counsel has advanced is that there is no acceptable evidence to show that the disputed veranda portion was in existence even at the time of Ext.A3. The learned counsel submits that this being a suit for declaration of title and possession, the plaintiffs have to win on the strength of their ## **R.S.A. No. 1249 of 2005** ## -: 12 :- case and not on the weakness (if any) of the case of the 5[th] defendant. It is also argued that Ext.A1 was executed immediately before the institution of the suit. Plaintiffs have not discharged the burden of proving the title and possession they have claimed. In that situation, no decree could be granted in favour of the plaintiffs. Reliance is placed on the decision in ## **T.K.Mohammed Abubucker v. P.S.M. Ahamed** **Abdul Khader** (AIR 2009 SC 2966). 12. In **Keshav Kumar Swarup v. Flowmore Private Limited** (supra) it is held in paragraph 3 that in interpreting a document the intention of the parties to it has to be ascertained, if possible from the expression used therein. More often than not, that causes no difficulty but if difficulty is felt owing to inarticulate drafting or inadvertence or other causes, the intention may be gathered by reading the entire document and, if so necessary from other attending circumstances also. If through such a process the intention of the parties can be culled out consistently with the rule of law, the courts are required to take that course. But as the above cited decision indicates and as held in **Sivaraman v. Gopala Iyer** (supra), the primary question is what the documents states. Reference to extrinsic ## **R.S.A. No. 1249 of 2005** ## -: 13 :- circumstances is permissible only when the document is unambiguous. The question in this case is whether from the descriptions in the 4[th] Schedule and other recitals in Ext.A3, it is possible to say that the veranda on the rear (western) side of room Nos.1 and 2 admittedly bequeathed to Anila and Anuja could be said to be part of that bequest? In Ext.A3, the property mentioned in the 1[st] schedule is described among other things, by its side measurements as well. Items B and C of the 1[st] schedule and schedules 2 to 4 concern properties comprised in old survey No.114/1. Item B of the 1[st] schedule relates to room No.3 (on the immediate south of room Nos.1 and 2 referred in the 4[th] Schedule) and the veranda behind with the half cent where the said room and veranda are situate. There is specific reference to the veranda. Description of item B of the 1[st] schedule is as if room Nos.3 to 7 (on the south of room Nos.1 and 2) have verandas on its rear (western) side. It is pointed out by the learned counsel for the appellants that evidence shows that room Nos.6 and 7 (on the extreme south of the 8 cents forming the southern half of the 16 cents) do not have verandas on its western side but by inadvertence, reference is made to the verandas on the rear (western) side of room Nos.6 and 7 ## **R.S.A. No. 1249 of 2005** ## -: 14 :- (according to the learned counsel it is by a similar mistake that the veranda on the rear side of room Nos.1 and 2 in the 4[th] schedule was omitted to be mentioned). Item C of the 1[st] schedule deals with the southern 6.5 cents. There again there is reference to the verandas on the rear (western) side of room Nos.4 to 7. Schedule 2 deals with 2 cents in old survey No.114/1. The side measurements of the said property is also given. Schedule 3 deals with a portion of the property comprised in survey No.114 and the side measurements are given. In Schedule 4 (allotted to Anila and Anuja which they later assigned to the 2[nd] plaintiff as per Ext.A1), the property bequeathed is described as the two rooms being the northern portion of the 7 rooms referred in item B of the 1[st] schedule and the one cent where the said rooms are situate in old survey No.114/1. 13. There is no mention of any veranda in existence even towards the rear (western) side of room Nos.1 and 2 mentioned in the 4[th] Schedule at the time of Ext.A3. This, according to the learned counsel for the appellants is an inadvertent omission made by the testator. The learned counsel points out that the western boundary of the property referred to ## **R.S.A. No. 1249 of 2005** ## -: 15 :- in the 4[th] schedule in Ext.A3 is described as purayidom while the eastern boundary is the road. The learned counsel also points out that if the bequest is in respect of the one cent in Sy. No.114/1, it should take in more area than the two rooms referred to in the 4[th] schedule. It is in these circumstances that the learned counsel has placed reliance on Ext.A13, X1 and C1(a) to say that the veranda portion on the rear (western) side also forms part of the bequest as per Ext.A3 (4[th] schedule). 14. It is relevant to note from the description of the 16 cents in Sy. No.114/1 in Schedules 2 and 3 of Ext.A3 that the measurement is made either from the north-eastern or southeastern corner of the 16 cents. In other words, measurement is made from the eastern boundary of the 16 cents where it abuts the road. From that portion, measurement is made towards south or north and then towards west. So, the extent of property in Sy. No.114/1 stated in Ext.A3 was measured from its eastern boundary. 15. Though it is contended by the learned counsel for the appellants that the disputed verandas on the rear (western) side of room Nos.1 and 2 were in existence at the time of Ext.A3, no reliable evidence in support of that is produced. Plaintiffs and the ## **R.S.A. No. 1249 of 2005** ## -: 16 :- 5[th] defendant came into the picture only immediately before and after the suit and years after Ext.A3. They are not competent to say about the existence or otherwise of the verandas on the date of Ext.A3. None connected with Ummini Govindan and alive at the time of execution of Ext.A3 is examined by the plaintiffs to say about the existence of verandas on the rear (western) side of room Nos.1 and 2 at the time of execution of Ext.A3. The learned counsel for plaintiffs relied on the evidence of D.W1 who said that all the verandas were constructed at the same time and that Ext.B1 does not concern the disputed property. As against that evidence of D.W1, P.W.1 (1[st] plaintiff) would say that all the shop rooms had no verandas on its rear (western) side at the time of Ext.A3. Title cannot be decided by surmises and conjectures. I stated that D.W.1 came into the picture only after institution of the suit. None connected with the execution of Ext.A3 is also examined by the plaintiffs to say about the possibility of Ummini Govindan omitting to mention in the 4[th] schedule of Ext.A3 the verandas (allegedly) if any in existence on the rear (western) side of room Nos.1 and 2. I must also notice that while reference is made in Ext.A3 to verandas on the rear (western) side at least room Nos.3 to 5 which admittedly ## **R.S.A. No. 1249 of 2005** ## -: 17 :- existed on the date of Ext.A3 and those verandas are also disposed of as per Ext.A3, no reference is made to the verandas which (allegedly) existed on the rear (western) side of room Nos.1 and 2. Pointing out to the (alleged) wrong description of the verandas on the rear (western) side of room Nos.6 and 7, one could not successfully contend that at another part of Ext.A3, Will, there is an inadvertent omission. 16. Another argument is based on Exts.A13, X1 and C1(a). In Ext.A13, room Nos.1 and 2 are shown to be comprised in R.S. No.347/24 (old Sy.No.114/1) while the property on its immediate south and west is shown as comprised in R.S. No.347/25 (corresponding to old survey No.116/1). It is based on the above that the learned counsel for the plaintiffs contended with all vehemence that Ext.B1 dealing with 13 cents in old survey No.116/1 cannot take in the verandas on the rear (western) side of room Nos.1 and 2 falling in R.S. No.347/24 (old Sy. No.114/1) since as aforesaid, the western portion of property comprised in R.S. No.347/24 (old Sy. No.114/1) is comprised in R.S. No.347/25. According to the learned counsel, old survey No.116 is nowhere near the property comprised in R.S. No.347/24. The trial court was also not very much impressed about the claim of the 5[th] ## **R.S.A. No. 1249 of 2005** ## -: 18 :- defendant that the disputed portion falls in old Sy. No.116/1 but observed that as the plaintiffs claim title, it is for them to prove it. 17. I must notice from the available evidence that the resurvey has not become final. Exhibit A3 is of the year 1981 and registered in the year 1984 after the death of Ummini Govindan. In Ext.A3, there is no reference to the resurvey number. Exhibit A13 contains an endorsement dated '21.10.1993'. Hence it is clear that the resurvey was made some time before 21.10.1993. In Ext.A1 dated 11.11.1992 in favour of the 2[nd] plaintiff also, there is no reference to the resurvey number. In the plaint as originally filed there was no reference to the resurvey number. That was incorporated only by an amendment in the year 1997. Hence it is clear that the resurvey was made or completed only after the institution of the suit. That, the trial court has also noticed and so held. 18. On the question whether the resurvey has become final, reference has to be made to the evidence of P.W.3, the Village Officer. He has stated that it is after finalization of the resurvey and gazetted fixation that the records will be sent to the Village Office. Hence, according to P.W.3, the documents produced have become final. He also stated that as per resurvey ## **R.S.A. No. 1249 of 2005** ## -: 19 :- the total extent of property in R.S. No.347/24 (old survey No.114/1/5) is 90 sq.mts shown in the revenue records (Ext.X2 is the thandapper register) in the name of Anila and Anuja, assignors of the 2[nd] plaintiff (and legatees of schedule 4 of Ext.A3). In cross-examination, P.W.3 stated that there are complaints regarding the resurvey and those complaints are being processed. Exhibit B3 is a notice given to the 5[th] defendant on his complaint regarding the resurvey. In Ext.B3, the hearing date stated is '22.05.1998'. P.W.3, the Village Officer was examined in the court on 24.10.1998 and 28.10.1998. Thus it is revealed from Ext.B3 that the resurvey had not been finalized after disposing of the objections even as on 22.05.1998. P.W.3 does not know when the entries were made in Ext.X2, thandapper register. In that register itself, it is recorded that as per document of title (obviously Ext.A3) the extent of land belonging to Anila and Anuja is only one cent and that the case is pending. P.W.3 states that only from the records he could say whether there are overlapping of old survey numbers while sub divisions were made. He admitted that there are several complains (received) regarding the resurvey. P.W.1 has stated in his evidence that the resurvey was in the year 1993 and concerning ## **R.S.A. No. 1249 of 2005** ## -: 20 :- the resurvey there was an adalath (obviously to settle the disputes). P.W.1 did not get notice about that. He stated that concerning the disputed property, adalath is being conducted even now. Thus the available evidence shows that the resurvey has not become final. 19. I have compared Ext.A13 with Ext.C1(a), plan submitted by the Advocate Commissioner. Exhibit C1(a) is prepared based on and in accordance with Ext.A13. In Ext.C1(a) the Advocate Commissioner has shown plot 'ABFE' as the location of shop room Nos.1 and 2 having 1.340 cents (i.e. exceeding one cent mentioned in the 4[th] Schedule of Ext.A3 and even Ext.A1). Plot ABCD (now claimed by the plaintiffs) has a total extent of 2 cents. As pointed out by the learned counsel for the 5[th] defendant, room Nos.3 to 7 are situate on the immediate south of room Nos.1 and 2 (bequeathed to Anila and Anuja as per 4[th] Schedule of Ext.A3). As per Ext.A3, room Nos.1 to 7 are situated in old Sy. No.114/1. In Ext.A13 and C1(a), property on the south of room Nos.1 and 2 (shown as comprised in R.S. No.347/24) is stated as comprised in R.S. No.347/25. That description in Exts.A13 and C1(a) does not tally with the description of survey No.114/1 for room Nos.3 to 7 in Ext.A3. ## **R.S.A. No. 1249 of 2005** ## -: 21 :- Therefore also Exts.A13 and C1(a) do not appear to be correct. Hence no reliance can be placed on Exts.A13, X1 and C1(a). The Commissioner has reported that there is no entrance from room Nos.1 and 2 (now lying as a single room) to the veranda on its rear (western) side. If the said veranda was in existence at the time of Ext.A3 and formed part of the bequest to Anila and Anuja, there would have been direct access to the veranda portion from room Nos.1 and 2. Absence of such access indicates that either the veranda portion was not in existence on the rear (western) side of room Nos.1 to 3 of Ext.A3, or at any rate that portion was not included or intended to be included in the 4[th] schedule of Ext.A3. Even Ext.C1(a) shows that to make up the one cent bequeathed to Anila and Anuja as per 4[th] schedule of Ext.A3 and which is assigned to the 2[nd] plaintiff as per Ext.A1, it is not necessary to have the veranda on the rear (western) side of room Nos.1 and 2. 20. In the 4[th] schedule of Ext.A3 and even in Ext.A1, the western boundary of the property referred to therein is described as 'purayidom'. If the intention of the testator was to bequeath the verandas (if in existence then) on the rear (western) side of room Nos.1 and 2 also to Anila and Anuja that would have also ## **R.S.A. No. 1249 of 2005** ## -: 22 :- definitely included in Ext.A3. 21. Assuming that to the knowledge of Anila and Anuja the verandas on the rear (western) side was also bequeathed to them, then, the description of the property assigned to the 2[nd] plaintiff as per Ext.A1 would not have been in the same way given in the 4[th] schedule of Ext.A3. The description in Ext.A1 is just as in the 4[th] schedule of Ext.A3. If the veranda formed part of the bequest to Anila and Anuja and that portion also was assigned to the 2[nd] plaintiff as per Ext.A1, at least in Ext.A1 the veranda would have been mentioned. P.W.1 admits and Ext.A1 also shows that the verandas are not mentioned in Ext.A1. 22. It is not disputed that the legal heirs of Ummini Govindan (Anila and Anuja being the grand children of Ummini Govindan are not his legal heirs) have executed release deeds in favour of Surendra Babu another legal heir releasing their right over the property including the disputed veranda on the rear (western) side of room Nos.1 and 2. The said Surendra Babu has executed Ext.B1 in favour of the 5[th] defendant. True that the trial court was not very much impressed by the description of the schedule to Ext.B1. This is a suit on title. Hence the plaintiffs have to win on the strength of the title claimed by them. The 2[nd] ## **R.S.A. No. 1249 of 2005** ## -: 23 :- plaintiff can get only what his assignors (Anila and Anuja) got as per Ext.A34 and nothing more. The plaintiffs had to show that the 2[nd] plaintiff got title over the disputed property by cogent evidence. 23. No doubt in the absence of other evidence and proof of fraud, revenue records can be taken as evidencing title. Revenue records are never treated as documents of title. I stated from the descriptions in the 4[th] schedule of Ext.A3 that it does not take in the disputed veranda on the rear (western side) of room Nos.1 and 2 and one cent which is bequeathed to Anila and Anuja as the 4[th] schedule to Ext.A3. If that be so, claim of the 2[nd] plaintiff should be confined to what Anila and Anuja have acquired as per Ext.A3 and which they have conveyed to the 2[nd] plaintiff as per Ext.A1. For the reasons I have stated above, no reliance can be made on the revenue records in this case. 24. There is also no reliable evidence to show that the tenants who are in occupation of the disputed portion – the veranda on the rear (western) side of room Nos.1 and 2 have in any way attorned to the 2[nd] plaintiff. What is available is only the interested version of the 1[st] plaintiff as P.W.1. Therefore the argument of the learned counsel in that line also cannot be ## **R.S.A. No. 1249 of 2005** ## -: 24 :- accepted. 25. On going through the evidence on record I find myself unable to accept the interpretation given by the appellants/plaintiffs to the description of the 4[th] schedule to Ext.A3 that the veranda on the rear (western) side of room Nos.1 and 2 also formed part of the bequest in favour of Anila and Anuja. On the other hand I am inclined to accept the finding of the courts below that the said portion did not form part of the bequest in favour of Anila and Anuja. If that be so, the 2[nd] plaintiff cannot lay hands on the disputed property. 26. The Substantial questions of law framed are answered accordingly. Resultantly: The Second Appeal fails. It is dismissed. Parties shall suffer their costs in this Court. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv