Joy Cherian v. George Cherian

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH FRIDAY, THE 14TH DAY OF SEPTEMBER 2012/23RD BHADRA 1934 RSA.No. 807 of 2012 () ---------------------AS.69/2011 of SUB COURT, PERUMBAVOOR OS.199/2006 of MUNSIFF COURT, PERUMBAVOOR APPELLANT(S)/APPELLANT/DEFENDANT: ------------------------------------------ JOY CHERIAN, AGED ABOUT 71, S/O. PYLEE CHERIAN, THOMBRA HOUSE, ALLAPRA P.O. VENGOLA VILLAGE, VENGOLA KARA, KUNNATHUNADU TALUK PIN-683553, ERNAKULAM DISTRICT. BY ADVS.SRI.K.NARAYANAN (N. PARAVUR) SRI.ALUNKAL GEORGE RESPONDENT(S)/RESPONDENT/PLAINTIFF: ---------------------------------------------- GEORGE CHERIAN, AGED ABOUT 80, S/O. CHERIAN, RESIDING AT THOMBRA HOUSE VENGOLA VILLAGE, VENGOLA KARA, KUNNATHUNADU TALUK ALLAPPRA P.O., PIN-683553, ERNAKULAM DISTRICT. BY ADV. SRI.R.ANILKUMAR(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.807 of 2012 -------------------------------------Dated this the 14[th] day of September, 2012.** ## **JUDGMENT** Admit. 2. The following substantial questions of law are framed for a decision: i. In a suit for permanent injunction is it not incumbent to show possession on the date of suit? Whether the position of law will be changed in case of addition of prayer for fixation of boundary? ii. In the face of conflicting discrepancies in the commissioner's report and survey sketch where the courts below justified in accepting the report blindly? Are not the circumstances brought out from the testimony of the commissioner and Revenue Officer sufficient to discard the commission report and plan? Whether the non consideration of those vital aspects resulted in miscarriage of justice? iii. Where the courts below justified in finding possession in favour of the plaintiff? Have not material evidence been overlooked? 3. Respondent appears through counsel. 2 RSA No.807/2012 4. The second appeal arises from the judgment and decree of the Sub Court, Perumbavoor in A.S.No.69 of 2011 confirming the decree for prohibitory injunction and fixation of boundary passed by the Munsiff's Court, Perumbavoor in O.S.No.199 of 2006. 5. The respondent/plaintiff sued the appellant/defendant, his younger brother for a decree for prohibitory injunction and fixation of boundary in accordance with the provisions of the Survey and Boundaries Act, 1961. The property described in the plaint schedule is 25 cents over which the respondent/plaintiff claimed title and possession as per Ext.A1, gift deed No.2797 of 1971. The properties towards the north and east of the suit property, according to the respondent belongs to and is in the possession of the appellant. There is a public way on the southern side and canal on the western side of the suit property. The appellant attempted to assert right over a portion of the suit property and hence the suit. 6. The appellant contended that description of the suit property is not correct and that the suit property does not belong to or is in the possession of the respondent. It is part of the 69 Ares belonging to the appellant as per Ext.B1, settlement deed No.3978 of 1991. He contended that he is in possession and enjoyment of the said 69 Ares. 3 RSA No.807/2012 7. The trial court initially found that there is no proper identification of the suit property and dismissed the suit. The respondent challenged that judgment and decree in A.S.No.110 of 2008. The learned Sub Judge allowed that appeal by way of remand with certain directions in paragraph 17 of the judgment as to the manner in which the suit property is to be identified. 8. After the remand, the respondent filed I.A.No.1055 of 2006 for appointment of an Advocate Commissioner to identify the suit property. Accordingly, an Advocate Commissioner was appointed and he, with the assistance of the Surveyor measured the suit property and submitted Exts.C2 and C2(a). Based on Exts.C2 and C2(a) the trial court granted a decree in favour of the respondent which the first appellate court has confirmed in A.S.No.69 of 2011. Hence this second appeal on the above substantial questions of law. 9. The learned counsel for the appellant has contended that the respondent has not proved his title and possession of any portion of the suit property. According to the learned counsel, the suit property forms part of the 69 Ares covered by Ext.B1, settlement deed in favour of the appellant. The learned counsel submits that the averments in the plaint and evidence of the respondent as PW1 are sufficient to show that the appellant is in possession of the suit property. Relying on the decision in **Anjil Vellachi and others v. Mamuni Bhaskaran alias Vattayil Bhaskaran (2009 (3) KHC 728)** it is contended that when the disputed property is in the possession of the appellant, respondent cannot have a short cut way by seeking fixation of boundary and 4 RSA No.807/2012 prohibitory injunction. According to the learned counsel, if in such a situation a decree for fixation of boundary is granted, that would amount to overreaching other contentions the appellant is entitled to raise in respect of the property in his possession. The proper course open to the respondent was to seek recovery of possession on the strength of title, it is contended. 10. The further contention the learned counsel has advanced is that even as per the averments in the plaint, there are fixed boundaries for the suit property in which case assistance of the court is not required to fix the boundary. The learned counsel submits that there is no proper prayer in the plaint to fix the boundary. Instead, the prayer is to pass a decree in accordance with the provisions of the Act. 11. It is lastly argued that at any rate, Exts.C2 and C2(a) cannot be accepted or acted upon. Neither the respondent nor the trial court has acted in accordance with the directions contained in paragraph 17 of the remand judgment in A.S.No.110 of 2008. According to the learned counsel, without identifying the entire properties which belonged to the executant of Exts.A1 and B1, the property belonging to the appellant as per Ext.B1 and the property taken for widening the road and formation of canal, there could be no proper identification of the suit property. The learned counsel referred to Exts.C2 and C2(a) and the evidence of PWs 3 and 4, the Advocate Commissioner and the Surveyor to show that no effort was made to identify the entire property and property of the appellant. It is pointed out that as per Exts.C2 and C2(a), 5 RSA No.807/2012 property in the possession of the appellant falls short of 69 Ares which he is entitled as per Ext.B1 which is not disputed. In the circumstances, it is prayed that judgment and decree of the courts below be set aside. 12. The learned counsel for the respondent/plaintiff has contended that there is sufficient evidence to show that the suit property belongs to and is in the possession of the respondent as per Ext.A1. It is contended that the appellant is an attestor in Ext.A1 and hence he cannot feigne ignorance about the disposition of property as per Ext.A1. The evidence is consistent with the recitals in Ext.A1 that the respondent is in possession of the suit property. According to the learned counsel, there was only an attempt on the part of the appellant to interfere with possession of the respondent and that cannot amount to 'possession' of the suit property or any portion of it with the appellant. So far as Exts.C2 and C2(a) are concerned, no objection was preferred by the appellant to I.A.No.1055 of 2006 where the prayer of the respondent was only to identify the suit property. Hence, the belated objection of the appellant to I.A.No.1055 of 2006 or Exts.C2 and C2(a) cannot be entertained, it is argued. 13. The suit property and the 69 Ares claimed by the appellant originally belonged to the father of the parties. He executed Ext.A1, gift deed No.2797 of 1971 in favour of the respondent concerning 25 cents. That 25 cents, according to the respondent is the suit property. Later, the father executed Ext.B1, settlement deed No.3978 of 1991 in favour of the appellant 6 RSA No.807/2012 concerning 69 Ares. The respondent relies on Exts.A1 to A3 to prove the title and possession he claimed over the suit property. Ext.A2 is a receipt for payment of revenue for the suit property on 01.06.2006. Ext.A3 is a certificate of possession dated 19.05.2008 issued by the Village Officer concerned. On the other hand, the appellant relies on Ext.B1, settlement deed No.3978 of 1991 whereby the donor under Ext.A1, the father has settled 69 Ares in favour of the appellant. 14. In paragraph 4 of the plaint, what is averred by the respondent is that a fortnight before the institution of the suit, the appellant with the help of a few workers “trespassed” into the property and started steps to plant some tamarind plants. When the respondent obstructed that attempt, appellant threatened and abused him. The appellant publicly declared that he will again come (meaning thereby that he withdrew from his first attempt) with his employees to work in the suit property and cut and remove the standing trees. 15. I am unable to understand the said averments in the plaint as amounting to an admission that the appellant is in possession of the suit property. An occasional interference with the property of another will not constitute possession. 'Possession' means the physical possibility of a person dealing with the property as he likes to the exclusion of all others. The possessor must have the power and intention to exercise control over the subject matter to the exclusion of others. The averments in paragraph 4 of the plaint can, at the best indicate an attempt to interfere with the possession of the RSA No.807/2012 7 respondent. Nor does evidence of the respondent as P.W.1 indicate that the appellant is in possession of the whole or any portion of the property covered by Ext.A1. P.W.1 has only stated that the appellant got 69 Ares as per Ext.B1. That does not mean either that the respondent had no possession of the suit property or that under Ext.B1, the appellant got possession of any portion of property covered by Ext.A1. 16. So far as title and possession claimed by the respondent in the suit property is concerned, I stated that Exts.A1 to A3 are relied on. It is admitted that the suit property and the 69 Ares disposed of in favour of the appellant as per Ext.B1 originally belonged to the father of the parties. It is while so that the father executed Ext.A1, gift deed in favour of the respondent in the year, 1971. In Ext.A1, it is stated that the property dealt with thereunder - 25 cents (described in the plaint schedule) is gifted to the respondent. The recitals in Ext.A1 are that the donor has divested himself of his right, title and possession of the said property and conveyed it in favour of the respondent and that the respondent is to enjoy the property effecting mutation and paying revenue. A further recital in Ext.A1 that the donor will have no right (in future) over the property. 17. The learned counsel for the appellant has invited my attention to paragraph 2 of the plaint to say that Exts.A1, gift deed was not acted upon. The learned counsel argues that in paragraph 2 of the plaint what is averred is that the respondent has paid land tax for the suit property on 01.06.2006 (Ext.A2). It 8 RSA No.807/2012 is further contended that when cross-examined, the appellant as PW1 stated that he is not able to produce other receipts for payment of revenue. According to the learned counsel, an attempt was made by the respondent to accept the gift as per Ext.A1 only on 01.06.2006. 18. What is averred in paragraph 2 of the plaint, as I can understand is only that the respondent has paid tax for the suit property on 01.06.2006. In the absence of any other evidence I find myself unable to accept the contention that the said statement amounted to an admission that the respondent paid the tax for the first time on 01.06.2006. At least, the respondent as PW1 did not admit that. May be, he was not able to produce receipts for payment of revenue prior to 01.06.2006. Moreover, I must notice that in Ext.A1, the respondent is authorised to effect mutation and pay revenue for the suit property. It is difficult to think that from 1971 till 01.06.2006, the respondent has not paid revenue for the suit property. Atleast, there is no case that the respondent was unaware of Ext.A1. The settled position of law is that so far as a gift which is not onerous is concerned, only slight evidence is sufficient to show its acceptance and in appropriate cases, even the recitals in the document is sufficient to prove acceptance of the gift. Ext.A1 is not an onerous gift. There is no case that the respondent was unaware of that gift deed. There is no reason why I should think that in spite of Ext.A1, gift being not onerous, the respondent has not accepted and acted upon the same. Ext.B1 relied on by the appellant bears testimony for acceptance of the gift as per Ext.A1. In the schedule of Ext.B1, the western boundary is described as property in the possession of the 9 RSA No.807/2012 respondent and another brother, Poulose. In the circumstances, the contention that Ext.A1 was not accepted and acted upon, cannot be accepted. It follows that I must accept the case of respondent that he got title and possession of the property dealt with as per Ext.A1. In the circumstances, the contention that the respondent could not have asked for fixation of boundary as a short cut for recovery of possession of the property cannot also be accepted. 19. The next question is whether in view of the averments in the plaint, fixation of boundary is required? No doubt, in paragraph 1 of the plaint it is stated that the suit property is surrounded by clear boundaries and that there are survey stones on the four corners of the property. But, the averments in paragraph 4 of the plaint indicate that disregarding that, there was an attempt on the part of the appellant to trespass into the property and assert his right. In paragraph 4 of the plaint, the respondent stated that in the above circumstances, it is necessary to fix boundary of the suit property after measuring the same with the assistance of the revenue authorities. 20. A suit for fixation of boundary is a suit of a civil nature. It is within the power of the civil court to fix boundary of the property particularly when there is dispute regarding it. The averments in the plaint read as a whole would show that though according to the respondent there are boundaries for the suit property, that is not being respected by the appellant and hence it is necessary to get the assistance of the court to get the suit property measured and boundaries permanently fixed. In the above circumstances, the stray 10 RSA No.807/2012 sentence in paragraph 1 of the plaint about there being boundaries for the suit property is not sufficient to non-suit the respondent. This I say also because it is revealed from Exts.C2 and C2(a) that there is no permanent boundary between the suit property and the property belonging to the appellant. 21. What then remained is whether Exts.C2 and C2(a) could be accepted and acted upon? In paragraph 17 of the remand judgment in A.S.No.110 of 2008 the learned Sub Judge directed that in order to find out the correct lie and identity of the property, it is necessary that the property owned by the predecessor-in-interest of the respondent is identified and then, the property taken for formation of the canal, canal bund and the property if any acquired or surrendered for widening the road on the south has to be identified. The property covered by Exts.A1 and B1 can only be the remaining property. If only those aspects are identified and reported, the plaint schedule property can be said to be properly identified. The above are the observations made by the learned Sub Judge in paragraph 17 of the remand judgment. 22. Now the question is whether the said directions are complied and if not, whether that would affect Exts.C2 and C2(a) fatally? It is not very much in dispute that property of the appellant or the entire property belonging to the father of the appellant and respondent are not measured. PW3, the Advocate Commissioner has stated that he has learned that on the west and north of the suit property, it is the property belonging to the appellant but the documents 11 RSA No.807/2012 pertaining to that property were not examined. It follows that no attempt was made to measure and identify the entire property or the property belonging to the appellant. 23. It is seen from Exts.C2 and C2(a) that the Advocate Commissioner has identified the property surrendered for formation of canal, canal bund and for widening of the road. That is marked as item Nos.2 and 4 in Ext.C2(a). Less the portion so surrendered, the extent of land found to be belonging to the respondent is 23.745 cents (item Nos.1 and 3 in Ext.C2(a)). In otherwords, the Advocate Commissioner has identified the property surrendered for road and formation of canal and canal bund. 24. In deciding whether failure to measure the entire property or the property of the appellant has affected Exts.C2 and C2(a) fatally, I must refer to Exts.A1 and B1. Though the appellant has a contention that the suit property forms part of the property settled in his favour as per Ext.B1, I have already found that the suit property belongs to and is in the possession of the respondent as per Ext.A1. Ext.B1 is of the year, 1991. It is not disputed that the appellant who claims title and possession as per Ext.B1 is a party to Ext.A1. Normally, an attestor cannot be attributed with knowledge of contents of the document. But various decisions on the point inform me that when the attestor is a close relative of the parties to the document, it is possible to attribute knowledge of contents of the document to him. The appellant who is an attestor in Ext.A1 is the son of the donor and brother of the donee under Ext.A1. In 12 RSA No.807/2012 Ext.B1, the western boundary of the property referred to therein is stated as the property in the possession of the respondent. Hence the appellant cannot plead ignorance about the disposition as per Ext.A1. Whatever the appellant has acquired as per Ext.B1, can only be the property excluding the property covered by Ext.A1. In that view of the matter, though the first appellate court in the remand judgment, in paragraph 17 directed that the entire property belonging to the executant and the property of the appellant are to be measured and identified and it was appropriate that the said course was adopted, I am inclined to think that the non-measurement of the entire properties belonging to the father or the property of the appellant is not fatal. For, whatever the appellant has acquired as per Ext.B1 can only be after excluding the property covered by Ext.A1. Therefore it was not absolutely necessary that the entire property belonging to the executant of Exts.A1 and B1 and the property of the appellant were measured and identified. 25. After the remand judgment, the respondent filed I.A.No.1055 of 2006 to measure and identify the suit property (alone). The learned counsel for the respondent asserts that to I.A.No.1055 of 2006, the appellant had not preferred any objection; nor was there any request to measure and identify the property belonging to the appellant or the entire property which belonged to the father. The appellant has preferred objection to I.A.No.1055 of 2006. But no attempt was made by the appellant when the Advocate Commissioner and the Surveyor visited the property to get his property as well as the entire property which belonged to the father measured and identified. Appellant has only 13 RSA No.807/2012 chosen to file objection to Exts.C2 and C2(a). In the above circumstances, I am unable to accept the contention that failure to measure and identify the entire properties which belonged to the father or the property belonging to the appellant is fatal to the decision of the case. 26. So far as acceptance of Exts.C2 and C2(a) are concerned, it is based on Ext.A1 and other revenue records that the property has been measured and identified by the Advocate Commissioner with the assistance of the Surveyor (PWs 3 and 4). 27. The Advocate Commissioner has identified the suit property covered by Ext.A1 with reference to the old survey plan (based on which the gift as per Ext.A1 was made). The Advocate Commissioner has found that less the area surrendered for widening the road and for formation of canal and canal bund, property belonging to the respondent is 23.745 cents. That measurement and identification, the courts below have accepted as correct. It is accordingly that the respondent was given a decree for prohibitory injunction and fixation of boundary. 28. Having heard the learned counsel on both sides and perused the records, I find no reason to interfere with Ext.C2 series and the finding entered by the courts below based on that. 29. The substantial questions of law framed are answered as above. Resultantly, 14 RSA No.807/2012 i. Second Appeal fails. It is dismissed. ii. Parties are directed to bear their cost in the Second Appeal. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**