Finny Varghese v. K. P. Georg

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 8TH DAY OF JULY 2013/17TH ASHADHA, 1935** ## **RSA.No. 624 of 2013 ()** **-----------------------** **AGAINST THE JUDGMENT IN AS 202/2008 of ADDL.DISTRICT COURT,KOTTAYAM DATED 15-11-2010** **AGAINST THE JUDGMENT IN OS 155/2004 of PRL.MUNSIFF COURT, KOTTAYAM DATED 31.03.2008** ## **APPELLANT(S)/APPELLANT/APPELLANT/PLAINTIFF:** **------------------------------------------------------------------------------------** **FINNY VARGHESE AGED 52 YEARS S/O.VARGHESE, ALUMMOOTTIL HOUSE, NATTASSERY KARA VIJAYAPURAM VILLAGE REP. BY HIS POWER OF ATTORNEY HOLDER A.M.KURIAN S/O.MATHAI, AGED 67 ALUMMOOTTIL, NATTASSERY KARA, VIJAYAPURAM VILLAGE.** **BY ADV. SRI.SURIN GEORGE IPE** ## **RESPONDENT(S)/RESPONDENT/DEFENDANT:** **----------------------------------------------------------------------** **K.P.GEORG, AGED 65 YEARS S/O.PUNNOOSE, PUTHENCHIRAYIL HOUSE, (JOBI BHAVAN) MUTTAMBALAM P.O., MUTTAMBALAM VILLAGE.** **R1 BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ R.S.A. No. 624 of 2013 -----------------------------------------Dated this the 8[th] day of July, 2013 ## **J U D G M E N T** The plaintiff who lost concurrently in a suit for declaration and prohibitory injunction is the appellant. It is contended that plaint item no.1 belongs to the plaintiff, while plaint item no.2 belongs to the defendant. According to the plaintiff there is a retaining wall on the southern side of item no.1 and it falls within item no.1. The dispute is with regard to that retaining wall. The defendant, on the other hand, contends that the retaining wall is not part of the property belonging to the plaintiff. It is further contended that the retaining wall and the building situated in item no.2 were in existence for about 40 years and that the retaining wall is to protect item no.2 of the plaint schedule. Relevant issues were framed by the trial court. **R.S.A. No. 624/2013** **-2-** 2. The Power of Attorney holder of the plaintiff was examined as PW1 and Exhibits A1 to A4 were marked. On behalf of the defendant, 3 witnesses were examined and Exhibits B1 to B19 were marked. The Commissioner's report and sketch were marked as Exhibits C1 and C1(a). 3. A specific contention was raised by the defendant that the person who verified and signed the plaint was not empowered to file a suit since no power was given to him, as per Ext.A4, to file a suit in respect of this property against the defendant. 4. The trial court found that on a perusal of Ext.A4 it could be seen that no such power was given to file a suit. Though the suit was originally for injunction simplicitor, subsequently the suit was amended seeking a prayer for declaration as well. The trial court found that there is nothing in Exhibits A1 and A2 to hold that the disputed retaining wall forms part of the property belonging to the ## **R.S.A. No. 624/2013** **-3-** plaintiff, whereas Ext.B1 – the title deed produced by the defendant would show that the retaining wall is part of his property. Considering the entire evidence, the trial court found that the plaintiff is not entitled to get a declaration or injunction as sought for. Hence, the suit was dismissed. 5. The appellate court had a re-appraisal of the entire evidence and found that a conjoint reading of Exts.A1 and A2 would clearly show that the disputed wall is part of the property held by the defendant. Besides, Ext.B3 agreement was also relied upon by the lower appellate court to hold that the claim, now put forward by the plaintiff, is absolutely untenable. The further fact that Ext.A4 does not give power to the appellant to file a suit for injunction against the respondent herein, was also taken serious note of to hold that there is no merit in the suit filed by the person who has absolute no _locus standi_ to file the suit. Hence, the appeal was dismissed. **R.S.A. No. 624/2013** **-4-** 6. The learned counsel for the plaintiff/appellant has vehemently argued that the courts below wrongly proceeded on the premise that the retaining wall does not form part of the property held by the plaintiff. The courts below were not inclined to accept the Commissioner's report and plan. The fact that the plan was not prepared by the Advocate Commissioner but it was prepared only by a Surveyor, has persuaded the courts below to hold that there was no proper Survey. If the courts below were of the view that the report and plan were unacceptable, an opportunity should have been given to the plaintiff to take out a fresh commission, the learned counsel for the appellant argued. It is argued that so far as a party is concerned, he had applied for and got a Commission issued and the property was measured by the Surveyor in the presence of the Advocate Commissioner. Even if it is accepted that the Advocate Commissioner did not sign the plan or that the Commissioner was not well ## **R.S.A. No. 624/2013** **-5-** versed in the survey measurement of the property, that is not a reason to reject the Commissioner's report and plan. It is further submitted that if, for any reason the court found that a proper survey plan and report were required, the court below could have permitted the plaintiff to take out a fresh commission. There is force in the submission so made by the learned counsel for the appellant. Hence, the learned counsel for the appellant submits that the rejection of the Commissioner's report and plan was illegal and improper and on that ground his suit could not have been dismissed. 7. The learned counsel for the respondent would submit that though such observations regarding the unacceptability of the Commissioner's report and sketch were made by the courts below, that was not the reason for dismissal of the suit. The suit was dismissed on the ground that Exts. A1 and A2 – the title deeds, relied upon by the ## **R.S.A. No. 624/2013** **-6-** plaintiff do not take in the plaint schedule retaining wall (item no.3), whereas Ext.B1 would make it clear that the retaining wall belonged to and was in the possession of the defendant. 8. There is no dispute regarding the fact that item no.2 is situated to the south of item no.1 and that item no.2 is situated on a higher level than item no.1. Though the report of the Advocate Commissioner was not very much relied upon by the courts below, it is seen that the retaining wall, described as item no.3, lies from east to west separating item no.1 from item no.2. It was stated that out of the said retaining wall a length of 4.80 metres, being the eastern portion, was constructed with granite stones and it was seen plastered with cement and the rest of the retaining wall was made up of laterate stones. It was also observed by the Commissioner that the bathroom situated ## **R.S.A. No. 624/2013** **-7-** in item no.1 is leaning and resting on the retaining wall described as item no.3. The fact that the retaining wall was very old, aged about 50 years, was not disputed either by the plaintiff or by the defendant. Therefore, the learned counsel for the respondent/defendant would submit that the recital in Ext.B1 – title deed dated 4.9.1973, which is earlier in point of time and Ext.B3 – agreement executed by the plaintiff in favour of the defendant would clinch the issue that the retaining wall belonged to the defendant only. 9. In fact, it was admitted by PW1 in cross examination that the defendant had purchased the property even before the plaintiff purchased item no.1. That is clear from Ext.B1 also. Ext.B1 is dated 4.9.1973 whereas Exts. A1 and A2 are of the date 30.3.1982 and 2.4.1982. Therefore, the plaintiff can claim only that property which was left out and held by the predecessor of the plaintiff. In ## **R.S.A. No. 624/2013** **-8-** Exts.A1 and A2 – the title deed relied upon by the plaintiff there is absolutely no mention regarding item no.3 – the disputed retaining wall. 10. The learned counsel for the appellant has relied upon the decision of this court in **Chandrakumar v. Narayanan Bahuleyan - 2011 (3) KLT 185** in support of his submission that when one of the descriptions is vague and uncertain and another description is definite and certain, the latter can be preferred and that if none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertently must be preferred if it sufficiently identified the subject matter of the transaction, in which case, the other descriptions can be rejected as erroneous or inaccurate. ## **R.S.A. No. 624/2013** **-9-** 11. The learned counsel for the respondent submits that as far as the case on hand is concerned, there is no vagueness or uncertainty with regard to the boundary. The description is very clear that item no.3 – the retaining wall was part of the property of the respondent, obtained as per Ext.B1 of 1973. The lie and position of the two plots and the fact that there was a retaining wall, aged about 50 years, would make it sufficiently indicative of the fact that the said retaining wall was constructed in order to protect item no.2, which is situated on a higher level from getting it slipped away or eroded. Therefore, the contention that the retaining wall is part of item no.1 can never be accepted as true. In Exts. A1 and A2 there is specific mention regarding the flight of steps situated on the western side of a width of 100 links and a length of 70 ½ links. There is also mention that it was kept for the purpose of using it as a pathway. This has been projected only to contend that in ## **R.S.A. No. 624/2013** **-10-** Exts. A1 and A2 there is no mention of any retaining wall as part of the property purchased as per Exts.A1 and A2. That would also scuttle the plea raised by the appellant that item no.3 – the retaining wall is part of the property obtained by them as per Exts. A1 and A2. It is only reasonable and probable to infer that the retaining wall was constructed in order to protect item no.2 and that it is part of item no.2. 12. Ext.B3, the consent letter executed by the appellant's predecessor – Chandy Mathew in favour of the respondent would show that he had actually admitted the fact that the bathroom-cum- latrine, situated in the northern plot belonging to the appellant, was using item no.3 - the retaining wall and a small portion of the roof of that latrine was projecting into item no.3 and that he would remove the same. A perusal of Ext.B3 would make it abundantly clear that he had agreed to remove that portion of the roof of the latrine-cum- bathroom which was projecting into item no.3 - ## **R.S.A. No. 624/2013** **-11-** the property of the respondent and that he only required time for removal of the same. That also would demolish the case of the appellant that item no.3 - the retaining wall belongs to or forms part of the property purchased by him. Exts. A1 and A2 would also make it clear that what was purchased by him is 2¾ cents of land and the building situated thereon. There is absolutely no mention of item no.3 - the retaining wall as forming part of the property purchased by him. All these aspects were highlighted by the courts below to hold that item no.3 does not belong to the appellant whereas it forms part of the property purchased by the respondent as per Ext.B1. Since the dispute was only with regard to item no.3 and since that issue was to be decided based on the documents relied upon by the appellant - namely Exts.A1 and A2 and the documents relied upon by the respondent - namely Exts.B1 and B3, it was not necessary to dwell much on the **-12-** ## **R.S.A. No. 624/2013** Commissioner's report and plan. 13. There is one more aspect which also assumes importance here. It was specifically contended by the respondent that the person who signed and verified the plaint had no authority at all to file the suit. Ext.A4 - the Power of Attorney would make it clear that he was given power only to file suit for eviction and petitions against the tenants held under the plaintiff. The Power of Attorney also empowers him to obtain building permit, license and other matters with regard to the construction of the building etc. No power was given to him to file a suit against the respondent herein in respect of item no.3 - the retaining wall. Therefore, the finding on that point, entered by the courts below, is also seen to be perfectly correct. The concurrent finding of fact entered by the courts below does not require any interference. No vital document or oral evidence was omitted to be taken note of by the courts **-13-** ## **R.S.A. No. 624/2013** below nor is the appreciation of evidence perverse so as to interfere with the concurrent finding entered by the courts below. No substantial question of law arises in the second appeal. In the result, this Regular Second Appeal is dismissed. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj