Jose and Gracy v Bhavaniamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 8TH DAY OF APRIL 2014/18TH CHAITHRA, 1936** ## **RSA.No. 956 of 2011 ( )** **------------------------** **AS.NO. 8/2010 OF SUB COURT, PERUMBAVOOR .................** **OS.NO. 279/2007 OF MUNSIFF COURT, PERUMBAVOOR --------------------------** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** **---------------------------------------------------------------------** **1. JOSE,AGED 56 YEARS,S/O.OUSEPH, NJEZHUNGAN HOUSE, CHELAMATTOM KARA,** **CHELAMATTOM VILLAGE, PIN -683 550.** **2. GRACY,AGED 55 YEARS,W/O.JOSE,** - **NJEZHUNGAN HOUSE, CHELAMATTOM KARA, CHELAMATTOM VILLAGE, PIN -683 550.** **BY ADV. SRI.G.RAJAGOPAL** ## **RESPONDENT(S)/APPELLANTS/PLAINTIFFS:** **----------------------------------------------------------------------** **1. BHAVANIAMMA,AGED ABOUT 72 YEARS, W/O.BHASKARAN NAIR, THOZHELI HOUSE, CHELAMATTOM KARA, CHELAMATTOM VILLAGE, PIN -683 550.** **2. MURALIDHARAN,AGED ABOUT 53 YEARS, S/O.BHASKARAN NAIR, THOZHELI HOUSE, CHELAMATTOM KARA, CHELAMATTOM VILLAGE, PIN- 683 550.** **3. AJITHAKUMARY,AGED ABOUT 46 YEARS, D/O.BHASKARAN NAIR, THOZHELI HOUSE, CHELAMATTOM KARA, CHELAMATTOM VILLAGE, PIN -683 550.** **4. JAYAPRAKASH,AGED ABOUT 43 YEARS, S/O.BHASKARAN NAIR, THOZHELI HOUSE, CHELAMATTOM KARA, CHELAMATTOM VILLAGE, PIN -683 550.** **5. HEMAKUMARI,AGED ABOUT 41 YEARS, D/O.BHASKARAN NAIR, THOZHELI HOUSE, CHELAMATTOM KARA, CHELAMATTOM VILLAGE, PIN -683 550.** **6. NANDAKUMAR,AGED ABOUT 39 YEARS,** - **S/O.BHASKARAN NAIR, THOZHELI HOUSE, CHELAMATTOM KARA, CHELAMATTOM VILLAGE, PIN -683 550.** **R1 TO R6 BY ADV. SMT.P.V.KOCHUTHRESIA** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 956 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 08[th] day of April, 2014 ## **J U D G M E N T** The defendants in O.S.No. 279/2007 who succeeded before the trial court but was slapped with a decree by the lower appellate court, are the appellants before this Court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. In order to understand the controversy involved in the suit, it will be useful to refer to Ext.C2(a) plan which has been accepted by the courts below. To cut the long story short the dispute centered around, Plot No. 5 and 6 shown in Ext.C2(a) of which Plot No.5 is shown as a way and Plot No.6 is labelled as excess land. The plaintiff claims that the excess land shown as Plot No.6 is a part of the property obtained by him as per Ext.A1, left after the partition between the sisters in which property alloted to his sisters alone were measured leaving the rest of the portion to the ## **R.S.A. No. 956 of 2011** **-2-** plaintiff. The plaintiff also laid claim to Plot No.5 pathway. 3. The defendants on the other hand contended that the plaintiff had no right over Plot No.6 and no right of way as claimed through Plot No.5 and they also disputed the identity of the plaint schedule property. They, in short contended that the plaintiff is not entitled to any relief. 4. On the basis of the above pleadings, issues were raised. The evidence consists of the testimony of PWs 1 to 5 and documents marked as Exts. A1 to A11 from the side of the plaintiffs. The defendants chose to adduce no evidence. Exts.C1, C1(a) and C2, C2(a) are the Commissioners reports and plans. 5. The trial court, on an appreciation of the evidence, found that the plaintiffs had not produced their prior document of title to Ext.A1 and that is fatal to their case. The trial court refused to accept the plea put forward by the plaintiffs that the excess land shown as Plot No.6 in Commissioners plan belonged to the plaintiffs. Regarding **R.S.A. No. 956 of 2011** **-3-** the way, the trial court took the view that there was no consistent case put forward by the plaintiffs and that should prove fatal. Accordingly, the suit was dismissed. 6. The plaintiffs went up in appeal as A.S.No.8/2010. Before the lower appellate court, the plaintiffs produced the prior document of title to Ext.A1 which is marked as Ext.A12. Essentially based on Ext.A12, the lower appellate court came to the conclusion that Plot No.6 was included in the property obtained by the plaintiff after partition between his sisters and him. The lower appellate court also came to the conclusion that going by Exts.A2 and A3, it can be seen that Plot No.5 is the way laid by the sisters for use of the plaintiff and thereby, the plaintiff had succeeded in establishing his case. Accordingly, the lower appellate court reversing the dismissal of the suit decreed the suit. The aggrieved defendants have come up in appeal before this Court. 7. While admitting this appeal, this Court had formulated the following substantial questions of law: **-4-** ## **R.S.A. No. 956 of 2011** “1. When the Commissioner has not identified the properties with reference to the old survey number shown in Ext.A1 partition deed and did not locate AB C schedules shown in Ext.A1, whether the first appellate court was justified in granting a decree based on Ext.C2 (a) (Plan No.2)? 2. Whether the plaintiffs could claim title to the disputed portion based on the excess land allegedly available under Ext.A1 partition deed? 3. Whether the plaintiffs are entitled to claim a right of way by grant ownership as well as by easement by necessity?” 8. The learned counsel appearing for the appellants contended that the lower appellate court has erred both on facts and in law in decreeing the suit. There has been no proper appreciation and adjudication of the issue involved in the suit and the court below failed to note that the plaintiff did not have a consistent case regarding the plea alleged to have been made by him. With regard to Plot No.6 also, the contention is that initially, the plaintiff did not lay claim to that portion at all. The plaint has initially instituted for only **R.S.A. No. 956 of 2011** **-5-** in respect of 7.3 cents and it was after the Commissioners report namely Ext.C2(a) plan and report that the plaint was amended to incorporate 10.105 cents i.e. including Plot No. 4 and 6 shown in Ext.C2(a) Plan. It is significant to notice that Ext.A1 does not make mention of any excess land and shows only an extent of 19 cents. Even if there is any excess land, the location of that property by the Commissioner does not appear to be appropriate and correct. The learned counsel also pointed out that this crucial aspect has been omitted to be noticed by the lower appellate court. 9. Referring to the Commissioners report, it is contended that the Commissioner, in his examination, admitted before the court that the plan was drawn up on the basis of re-survey sketch and also with reference to the corelation registers. It was admitted by the Commissioner, according to the learned counsel that 19 cents, which is the subject matter of the dispute, was not separately identified. ## **R.S.A. No. 956 of 2011** **-6-** Reference was made to the Commissioner's evidence wherein the Commissioner deposed that according to him, the excess land identified could either belong to the plaintiff or the defendants. 10. The learned counsel for the appellant pointed out that the lower appellate court was not justified in simply accepting Ext.A12 without affording an opportunity to the defendants to meet the contents of Ext.A12. Referring to Ext.A12, it was contended that being the prior document of title to Ext.A1, took in two plots namely, 19 cents in Survey No. 504/7A and 27 cents in Survey No. 504/7B. Referring to the recitals, the learned counsel pointed out that 'virivu' which means excess land is associated with 27 cents comprised in Survey No. 504/7B and not with reference to 19 cents in Survey No.504/7A which is the subject matter of assignment based on which the plaintiff claims right to the property. ## **R.S.A. No. 956 of 2011** **-7-** 11. As far as the right of way is concerned, according to the learned counsel, three claims are put forward and they are easement of necessity, easement by grant and understanding between the parties. The learned counsel reminded this Court that once it is contended that the right is by easement of necessity and grant, necessarily, the plaintiff will have to concede title to the defendants. Unfortunately according to the learned counsel, the lower appellate court has not actually determined the right which enables the plaintiff to use the way but has simply granted a decree holding that the plaintiff has a right of way. 12. The learned counsel went on to point out that the real issue involved was the identification of property and that has been omitted to be noticed by the lower appellate court. The learned counsel again pointed out that none of the grounds under Order XL1 Rule 27 was available to the lower appellate court to receive Ext.A12 evidence. At any rate, an opportunity ought to have been given to the ## **R.S.A. No. 956 of 2011** **-8-** defendants to meet the claim based on Ext.A12. Denial of that opportunity has caused considerable prejudice to the defendants as could be seen from the judgment of the court below since the decree is solely based on the recital in Ext.A12. 13. The learned counsel appearing for the respondents on the other hand contended that there is absolutely no merits in any of the contentions raised by the counsel for the appellants. According to the learned counsel, the defendants are trying to take advantage of some minor mistakes in description of plots in various documents. A reading of Exts. A1, A12, A2, A3 and A6 would clearly show that the claim made by the plaintiff is just, reasonable and proper. May be there are some slight mistakes in description regarding the boundaries and extent in various documents. The learned counsel went on to point out that if there are discrepancies in the description of properties, it is well settled that, the property is to be identified with ## **R.S.A. No. 956 of 2011** **-9-** reference to its boundaries. In support of her contentions, the learned counsel relied on the decision reported in **P. Velu and Others** v. **P. Padmavathy Amma** [1984 (1) ILR 30]. According to the learned counsel, Ext.A8 is very clear in this regard. Exts. A3 and A4 documents, according to the learned counsel, show that two sisters who obtained 6.333 cents of property under Ext.A1 partition deed, together had assigned only 4.40 ares of land leaving a portion of the property obtained by them which constitutes the way to be enjoyed by the plaintiff. It is clear from the subsequent documents namely Exts.A2 and A3 and the document by which ultimately the defendants received the property that the way shown as Plot No.5 was not assigned to him and it was kept separate for the use of the plaintiff. The learned counsel also drew attention of this Court to the fact that the defendants were shy to mount the box and did not produce any documents in his favour that would show that the claim put forward by plaintiff is unsustainable. The learned counsel ## **R.S.A. No. 956 of 2011** **-10-** for the respondents then pointed out that as regards the way, the only right claimed is the right of user even though the sisters of the plaintiff who obtained property on partition leaving the rest of the property to the plaintiff had stated that it was given to the plaintiff for his use. It is contended that by no stretch of imagination, it could be said that the excess land could form a portion of the property acquired by the defendants. Accordingly, it is contended that there are no grounds to interfere with the judgment and decree of the lower appellate court. 14. Well, the dispute essentially centers around proper identification of the property. The document of title which has considerable significance, is Ext.A12. This document was not produced before the trial court and the trial court found it to be fatal. It was produced before the lower appellate court by way of petition under Order XL1 Rule 27. It may be remembered here that receipt of additional evidence at the appellate stage is not a matter of course and acceptable ## **R.S.A. No. 956 of 2011** **-11-** grounds will have to be made out for receipt of document. The lower appellate court has only mentioned that, it is felt that Ext.A12 was necessary for adjudication of the issue and therefore received and marked the document as Ext.A12. No convincing reasons are given by the appellants as to what precluded the appellants from producing the document before the lower court except the statement that copy obtained by them was not a readable copy. 15. Coming to Ext.A12, it consists of two plots, namely, 19 cents in Survey No. 504/7A and 27 cents in Survey No. 504/7B with an appendage of 'Virivu'. To understand the location and the property in question, it will be useful to refer to Ext.C2(a) plan. 19 cents consists of Plot Nos. 3, 6 and 4. Going by the description in Ext.A12, according to the appellant, it could not be said that the 19 cents which is the subject matter of assignment under Ext.A12 contained no excess land. As per the partition entered into between the plaintiff and his sisters, 6.33 cents ## **R.S.A. No. 956 of 2011** **-12-** were given each of the sisters and the rest of the property was retained by the plaintiff. The claim made by the plaintiff that it was only a clerical error in omitting to mention that the excess land is in Survey No. 507/A, cannot be accepted. It is here one has to notice that the definite contention taken by the appellants that there were no attempt to independently identify the 19 cents covered by Ext.A12. 16. Be as it may, the matter does not stop there. The plaint initially contained only 7.35 cents of land. It was after the Commissioners report and plan that it was amended to incorporate 10 and odd cents with slight change of boundaries. The Commissioner has identified Plot No. 6 as excess land. The plaintiff claims it to be his property on the basis that even though only 19 cents were mentioned in Ext.A12, it had excess property and that is what is identified by the Commissioner. 17. It is difficult to accept the above contention for more than one reason. First of all, Ext.A12 was not ## **R.S.A. No. 956 of 2011** **-13-** produced before the trial court. It was produced only at the appellate stage. In the written statement as well as in the additional written statement, there was a specific contention taken by the defendants that the property obtained by the plaintiff and his sisters was only 19 cents and nothing more. They had also a contention that the excess land if at all there was any was attached to 27 cents comprised in Survey No.504/7B. 18. Unfortunately, the lower appellate court without adverting to the contentions raised by the appellants herein, accepted the plea of the plaintiff that the excess land made mention of in Ext.A12 goes along with the 19 cents and it is not discernible from the judgment of the court below how the court below came to such a conclusion. It is significant to note that Ext.A12 is not proved in accordance with law and no one speaks about the fact that 19 cents dealt with under Ext.A12 contained the excess land also. ## **R.S.A. No. 956 of 2011** **-14-** 19. It is here that the claim of the defendants assumes important that they ought to have been given an opportunity to take the objection based on Ext.A12. The court below ought to have given an opportunity to the defendant to explain the position with regard to Ext.A12. 20. Necessarily, the plaintiff had to prove that the 19 cents mentioned in Ext.A12 contained excess extent also. In this context, the Commissioners report assumes significance. In Ext. C2(a) plan, excess plot is shown as item No.6. In spite of best efforts, this Court was unable to understand how excess land could be located as Plot No.6 which fall in the middle of Plot Nos. 4 and 3. No satisfactory explanation could be found for locating item No.6 as excess land. 21. Coming back to the case of the plaintiff, as per Ext.A1 partition deed, 6.33 cents were given to each of the sisters. The evidence show that the properties given to the sisters alone were measured and the property retained by ## **R.S.A. No. 956 of 2011** **-15-** the plaintiff was not measured. Though going by Ext.A1, each of the sisters got 6.33 cents of land, as rightly pointed out by the learned counsel for the respondents, the subsequent assignments by them as evidenced by Ext.A2 and A3 take in only 4.40 ares of land which ultimately devolved on the defendants. The contention is that the balance extent was left as access for the plaintiff for access to his property. 22. Here one aspect has to be noticed. The defendant has a case that the way was in fact through the excess property attached to the 27 cents shown as Plot Nos. 4 and 6 in Ext. C2(a) plan which is on the western side of 19 cents. But there is one difficulty in accepting the above plea. True, admittedly, the 27 cents made mention of in Ext.A12 does not extend beyond the southern side of the irrigation cannal. There is a property in between Plot No.2 and cannal. Therefore, obviously, the way could not have been through that property. The said contention is only to be repelled. ## **R.S.A. No. 956 of 2011** **-16-** 23. Referring to the written statement, especially, paragraph 5, the learned counsel for the respondents pointed out that the defendant had a definite case that what was obtained by him was only 4.40 ares of land and he cannot now change his case to one of getting more extent by virtue of assignment in his favour. Ext.A8 also shows that the excess land was not the part of the plaintiff's property. To a specific question as to where the 4.40 ares are shown in Ext.A8, the answer was it was between the plaintiff's and the defendant's property. However, the evidence, commissioners report as well as the evidence on record show that there was no clear cut boundaries separating the two properties. 24. There can be no dispute regarding the fact that the Commissioner did not independently identify the 19 cents made mention of in Ext.A12 nor it is shown in Ext.C2 (a) plan. PW5, the Commissioner says that the northern boundary in Plot Nos. 4 and 6 and the souther boundary **-17-** ## **R.S.A. No. 956 of 2011** shown in Ext.C1(a) plan are not the same. 25. Going by the evidence furnished by the Commissioner, it is not clear as to whether Plot No.6 belongs to the plaintiff or the defendant. But as rightly pointed out by the learned counsel for the respondents, the defendant cannot lay more claim to 4.40 ares of land. 26. But one has to notice that the suit is based on title and it is trite that the weakness of the defence case cannot result in a decree in favour of the plaintiff. The plaintiff has to prove his title based on his own evidence adduced in the case. 27. May be the claim made by the plaintiff that going by Exts.A2 and A3, the excess land shown now by the Commissioner may not form a part of the property obtained by the defendant. But that does not mean that it automatically belongs to the plaintiff especially, in view of the failure to locate the disputed 19 cents by the Commissioner. It is absolutely necessary that for a proper ## **R.S.A. No. 956 of 2011** **-18-** adjudication of the issue involved in the suit, the 19 cents made mention of in Ext.A12 and the 19 cents made mention of in Ext.A1 will have to be independently identified. Thereafter, each of the plots given to the two sisters may have to be identified, in order to come to a conclusion as to whether there is any excess land as contended by the plaintiff and if so that the location of the same will have to be independently ascertained. 28. The lower appellate court does not appear to have adverted to these questions in detail and seems to have been simply guided by the recital in Ext.A12. To be precise, Ext.A12 is not very clear as to the excess land being attached to the 19 cents. Even though, the learned counsel appearing for the respondents contended that going by the boundaries it may be so, lower appellate court does not find it to be so. The finding of the lower appellate court in this regard is weak and does not appear to be very convincing enough. A re-determination of the issue appears absolutely **-19-** ## **R.S.A. No. 956 of 2011** necessary. 29. Coming to the question regarding the right of way, as rightly pointed out by the learned counsel for the appellant, three rights are claimed. They are easement by necessity, easement by grant and understanding. If the claim is by easement by grant or necessity, necessarily, there will have to be a dominant tenement and a servient tenement and there will have to be a dominant tenement owner and a servient tenement owner. It is not clear from the finding of the court below as to what exactly is the right conferred. Of course, Exts. A2 and A3 does make mention of laying of way on the western side of the property assigned as per the documents. But one is faced with the difficulty in this case as to, if as a matter of fact, the excess land as shown as Plot No.6 is given to the plaintiff, then the way shown as Plot No.5 need not extend beyond the southern boundary of Plot No.6. On the other hand, going by the sketch, it goes far beyond southern boundary of Plot No.6. ## **R.S.A. No. 956 of 2011** **-20-** Even apart from the fact that there is no consistent plea regarding the right of use of way, the location of the way also does not appear to be quite proper. The Commissioner has located Plot No.5 as the way which as already noticed goes beyond the southern boundary of Plot No.6. 30. At the time of hearing, this Court put a question to the learned counsel for the respondents as to what exactly is the nature of claim raised by the respondents with reference to the way in question. The learned counsel was fair enough to concede that the respondent only claims for right of way. The fact that a right of way was absolutely necessary for the enjoyment of Plot No.4 even assuming that Plot No. 6 is not taken as the plaintiff's share cannot be disputed. It is quite evident from the sketch itself. The property which was obtained in partition was on the southern side which had direct access to the cannal road on the southern side. Plot which the plaintiff was left with was on the extreme northern side and a way was absolutely essential for the beneficial ## **R.S.A. No. 956 of 2011** **-21-** enjoyment of Plot No.6. But unfortunately for the plaintiff, proper pleadings were not made and three inconsistent pleas were taken. Whatever that be, it cannot be denied that the plaintiff has way to his property. Therefore, a proper location of the way also becomes necessary. 31. In the light of these facts, it is difficult to accept the findings of the lower appellate court in simply accepting Ext.A12 and coming to the conclusion that the excess land noticed in Ext.C2(a) plan and shown as Plot No.6 automatically belongs to the plaintiff. Even though the defendants in the suit may not able to lay claim to that plot does not mean that the plaintiff has title to the said property. As already noticed the suit being one on title, the entire burden is on the plaintiff to show that the property belongs to him. 32. It is also significant to notice at this juncture that initially, the plaint schedule showed only 7 and odd cents, it was later amended to incorporate an extent of 10 and odd ## **R.S.A. No. 956 of 2011** **-22-** cents. One cannot also omit to note that the plot of 27 cents made mention of in Ext.A12 is shown in Plot No.2 in the plaint. Though it is mentioned only 27 cents, Commissioners report shows that it has an extent of 30 cents. 33. It is here that one has difficulty in accepting the plea that an extent of 19 cents had excess land with it. That is a matter to be determined only by separately identifying the properties which are assigned as per Ext.A12. 34. For the above reason, it is felt that a reconsideration of the issue is absolutely necessary for ascertaining respective rights of the properties. As already noticed, the first issue that needs to be considered is whether there is any excess land as contended by the plaintiff and if it is so, its location is to be identified. For the above reason, this appeal is allowed. The judgment and decree of the lower appellate court is set aside and the matter is remanded to the trial court for fresh disposal in accordance with law and in the light of what has ## **R.S.A. No. 956 of 2011** **-23-** been stated above. The parties shall appear before the trial court on **03.06.2014** . The parties will be at liberty to adduce further evidence. The trial court may make every endeavour to dispose of the suit as expeditiously as possible at any rate within a period of six months from the date of appearance. There will be no order as to costs. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge