Kesavan Jayanthi and Kesavan Vasanta v. Ajaykumar, Appu, Kesavan Baby, Kesavan Sukesan and Addl. Respondents, A.S. No. 245 of 2002

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 3RD DAY OF JUNE 2013/13TH JYAISHTA 1935 AS.No. 245 of 2002 ( ) ----------------------AGAINST THE JUDGMENT IN OS 288/1995 of SUB COURT,ATTINGAL ## APPELLANTS/PLAINTIFFS: ----------------------------------- 1. KESAVAN JAYANTHI, T.C.5/1856, SUVARNA, NADAKKAVU LANE, PERORKADA, THIRUVANANTHAPURAM. 2. KESAVAN VASANTHA, T.C.5/1856, - SUVARNA, NADAKKAVU LANE, PERORKKADA, THIRUVANANTHAPURAM. BY ADV. SRI.RAJAN P.KALIYATH ## RESPONDENTS/DEFENDANTS: ----------------------------------------- - 1. AJAYAKUMAR, S/O.APPU, ::: DIED. KIZHAKKEMURI VEEDU, KADAKAVOOR, CHIRAYINKIL TALUK. 2. APPU, S/O.MADHAVAN, - KIZHAKKEMURI VEEDU, KADAKAVOOR, CHIRAYINKIL TALUK. 3. KESAVAN BABY, KIZHAKKEMURI VEEDU, KADAKAVOOR, CHIRAYINKIL TALUK. 4. KESAVAN SUKESAN, ASHITHA BHAVAN, NEAR RAILWAY STATION, KADAKAVOOR, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM DISTRICT. ADDL 5. S. REMA, 39 YEARS, W/O.AJAYKUMAR KIZHAKKEMURI VEEDU, KADAKAVOOR, CHIRAYINKIL TALUK. ADDL 6. V. ANISH, AGED 19 YEARS, S/O.AJAYKUMAR -DO- -DO- ADDL.7. V. ANOOP (MINOR) AGED 16 YEARS, S/O.AJAYKUMAR -DO- -DO- - : THE ABOVE LEGAL HEIRS OF THE DECEASED R1, ARE IMPLEADED AS ADDL. RESPONDENTS 5 TO 7 AS PER ORDER DT.21.1.2013 IN I.A.3938/2010. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29.5.2013, THE COURT ON 3.6.2013 DELIVERED THE FOLLOWING: ## **M.L.JOSEPH FRANCIS, J.** **----------------------------------------------A.S. No.245 of 2002 ----------------------------------------------Dated 3[rd] June, 2013.** ## **J U D G M E N T** This appeal is filed by the plaintiffs 1 and 2 in O.S.No.288 of 1995 on the file of the Sub Court, Attingal. Respondents 1 to 4 herein were the defendants 1 to 3 and additional 4[th] defendant in that suit. During the pendency of this appeal, the first respondent died and his legal representatives are impleaded as additional respondents 5 to 7. 2. The averments in the plaint is briefly as follows : The plaintiffs are the sisters of the third defendant. Plaint A schedule properties are the properties set apart to the share of plaintiffs in the partition effected in their family in 1971. The properties allotted to the share of the first plaintiff is shown as plaint B schedule and those allotted to second plaintiff are plaint C and D schedule properties. The second plaintiff assigned the plaint D schedule property in 1979 to first defendant. Plaint D schedule property is part of plaint C schedule and that includes only the vacant land. The first defendant assigned the properties obtained by him to defendants 2 and 3. Defendants 2 and 3 constructed a house A.S. No.245 of 2002 2 in Plaint D schedule property and started residing therein. The plaintiffs suspected that a portion of the house built by defendants 2 and 3 has projected into plaint B and C schedule properties. The plaintiffs also suspected that the building would again be extended encroaching upon plaint B and C schedule properties. The 4[th] defendant with the assistance of the other defendants had encroached upon the plaint schedule properties and reduced 2 cents to his possession and that portion is shown as plaint E schedule property. When the defendants tried to extend the house built by them to plaint B and C schedule properties, the second plaintiff along with her husband reached the spot and obstructed. But the defendants threatened that they would extend their house to plaint B and C schedule properties. Hence it is to be declared that the plaintiffs have got title and possession of plaint B and C schedule properties and the defendants may be directed by a mandatory injunction to demolish the portion of the building put up by them in plaint B and C schedule properties and that portion may be ordered to be surrendered to the plaintiffs. The 4[th] defendant may be A.S. No.245 of 2002 3 directed to surrender possession of plaint E schedule property to plaintiffs. The defendants may also be restrained by a prohibitory injunction from making further extension of the building into plaint B and C schedule properties. The eastern boundary of plaint B schedule property and southern boundary of plaint C schedule property is to be fixed. 3. Defendants 1 to 3 filed a joint written statement disputing the claim of plaintiffs, as follows. The properties wherein the building of the defendants is situated is in the possession of the defendants from the date of assignment of the property in their favour. The building situated in plaint A schedule property is protruded to plaint B, C and D schedule properties. At the time of executing the partition deed, there was a stipulation to remove the house. The plaintiffs had agreed to demolish the portion of the building protruded into plaint D schedule property. It is false to say that at the time of assigning plaint D schedule property it was a vacant land. On the other hand, a portion of the building situated in plaint A A.S. No.245 of 2002 4 schedule property was also there in plaint D schedule. The building constructed in plaint D schedule property does not project into plaint B and C schedule properties as alleged. Moreover the plaintiffs are well aware of the construction of the house and they had visited the house many times during the construction and they know that no portion of the building was protruded into plaint B and C schedule properties. Hence, suit is to be dismissed. 4. The 4[th] defendant filed written statement stating as follows : The description of E schedule property is wrong and the plaintiffs have no title or possession over plaint E schedule property which is in exclusive possession and enjoyment of this defendant. The extent of the properties shown in the plaint A schedule is wrong. At the time of partition, the parties had included the properties in the schedule in which they have no right or possession. This defendant's property is separated from the properties of other defendants. This defendant has not trespassed into any portion A.S. No.245 of 2002 5 of the plaintiffs' property. If any portion of the plaintiffs' property is included within the boundary of this defendant's properties, their right is lost by adverse possession and limitation. This defendant is not intending to make additional structures in his properties. The suit is liable to be dismissed. 5. In the Sub Court, PW1 to PW3 and DW1 were examined and Exts.A1, A2 and B1 to B3 and C1 and C2 were marked. The learned Sub Judge, on accepting Ext.C1 Commission report and Ext.C2 plan, and considering the other evidence on record, decreed the suit as follows : “i. It is declared that the plaintiffs have got title to and possession of B schedule and C schedule properties shown by the Commissioner in Exts.C-1 and C-2. ii. The eastern boundary of plaint B schedule property shall be the line F J I shown by the commissioner in Ext.C- 2. The southern boundary of plaint C schedule property shall be the line K C shown in Ext.C-2 by the Commissioner. iii. Exts.C-1 and C-2 will form part of the decree. iv. The prayer for prohibitory injunction, mandatory injunction and recovery of possession of plaint E schedule property are rejected. A.S. No.245 of 2002 6 ## v. Parties are directed to suffer their respective costs.” Dissatisfied with that judgment and decree, the plaintiffs filed this appeal. 6. Heard the learned counsel for the appellants. There is no appearance for the respondents. 7. The learned counsel for the appellants submitted that the court below went wrong in disallowing the prayer for mandatory injunction after declaring the title and possession of the plaintiffs over plaint B and C schedule properties. The learned counsel further submitted that the court below erred in finding that Ext.C1 report and Ext.C2 plan are correct. The learned counsel for the appellants submitted that the properties are not identified by the Commissioner on the basis of the side measurements shown in Ext.A1 partition deed. The learned counsel further submitted that the only prayer of the appellants is to remand the case to the court below for the purpose of measuring out the plaint schedule properties on the basis of the side measurements shown in Ext.A1 partition deed and by survey measurements. A.S. No.245 of 2002 7 8. In the plaint, the plaintiffs 1 and 2 sought for declaration of their title and possession over plaint B and C schedule properties as prayer A. The prayer B in the plaint is to issue a mandatory injunction directing the defendants to remove the portion of the building constructed by them encroaching into plaint B and C schedule properties and for a decree of recovery of possession of that portion by evicting the defendants therefrom and to evict the 4[th] defendant from the plaint E schedule property and for fixation of boundary and for permanent prohibitory injunction. According to the plaintiffs, they are the sisters of the third defendant and that the plaintiffs together with the third defendant and others executed a partition deed No.1811/1971 and in that partition deed, F and G schedule properties were allotted to the plaintiffs 1 and 2, which is shown as plaint A schedule property. The plot allotted to the first plaintiff as per that partition deed is shown in the plaint as B schedule property and the property allotted to the share of the second plaintiff is shown in the plaint as C and D schedule properties. From the F schedule property allotted to A.S. No.245 of 2002 8 the second plaintiff, retaining the C schedule property, plaint D schedule property was sold to first defendant in 1979. The first defendant subsequently assigned that property to defendants 2 and 3. The defendants 2 and 3 constructed a building in the plaint D schedule property after purchasing that property. According to the plaintiffs, a portion of the building is encroaching into the plaint B and C schedule properties. It is further alleged by the plaintiffs that the 4[th] defendant, with the assistance of other defendants trespassed into 2 cents of property into the plaint schedule properties and annexed that portion to his property. That encroached portion is shown in the plaint as E schedule property. 9. Ext.A1 is the copy of the partition deed No.1811/1971. As per Ext.A1, a plot having an extent of 4 ¼ cents comprised in Survey No.2407 was allotted to the second plaintiff Vasantha as F schedule. G schedule in Ext.A1 partition deed having an extent of 4 ¼ cents in the same survey number was allotted to the first plaintiff Jayanthi. In that partition deed, side measurements of the properties allotted to each party A.S. No.245 of 2002 9 have been given. F and G schedule properties in Ext.A1 partition deed is shown in the plaint as plaint A schedule property having a total extent of 8 ½ cents in survey No.2407. 10. In Ext.A1 partition deed, it is specifically stated that the total extent of the property in survey No.2407 is 20 cents and the 8 ½ cents is a portion of that 20 cents. The property having an extent of 2 cents in that survey number shown in plaint D schedule was sold to the first defendant. The 4[th] defendant purchased plaint D schedule property along with other properties as per Ext.B1 sale deed. Ext.B2 is the prior title deed. In Exts.B1 and B2 also, the side measurements of 8½ cents in survey No.2407 are given, which are similar to the side measurements mentioned in Ext.A1 partition deed and in the plaint schedule. 11. In the Sub Court, the plaint schedule properties were measured by an Advocate Commissioner with the assistance of a Taluk Surveyor. That Commission report was marked as Ext.C1 and the plan was marked as Ext.C2. In Ext.C2 plan, it is stated that the plot shown in Ext.C2 as plaint A A.S. No.245 of 2002 10 schedule property is having only an extent of 7 cents in the place of 8.500 cents shown in the plaint A schedule. The extent of plaint B schedule property demarcated in Ext.C2 plan is having an extent of 3.500 cents in the place of 4.25 cents shown in the plaint. In Ext.C2 plan, the plaint C schedule property is demarcated as having an extent of 3.500 cents in the place of 4.250 cents shown in the plaint C schedule. In Ext.C2 plan, the plaint E schedule property is not identified. The main grievance of the appellants is that the Commissioner has not measured out the properties in accordance with the side measurements shown in Ext.A1 partition deed. On verifying the side measurements shown in Ext.A1 partition deed with the plots identified as A, B and C schedule properties in Ext.C2, it is seen that there are a lot of differences in the side measurements and extent. When the surveyor was examined as PW2, he deposed that there were no obstacles in measuring out the property as per the measurements shown in the plaint. Ext.A1 partition deed is the common document, on the basis of which the parties are claiming right over the disputed A.S. No.245 of 2002 11 properties. Therefore, measuring the plaint schedule properties on the basis of the side measurements shown in Ext.A1 partition deed, Exts.B1 and B2 documents would help to resolve the disputes between the parties. Therefore, the properties have to be measured out by an Advocate Commissioner with the assistance of a Taluk Surveyor or Village Officer with reference to the title deeds and survey records afresh. For that purpose the case has to be remanded to the Sub Court, Attingal, after setting aside Ext.C1 Commission report and Ext.C2 plan. Accordingly, this appeal is allowed. The judgment and decree in O.S.288 of 1995 on the file of the Sub Court, Attingal is set aside. Ext.C1 report and Ext.C2 plan are also set aside. The case is remanded to the court below for fresh disposal in accordance with law, after giving sufficient opportunity to the plaintiffs to take out an Advocate Commissioner to measure out the plaint schedule properties with reference to the title deeds and by survey measurements with the assistance of the Taluk Surveyor or Village Officer. A.S. No.245 of 2002 12 Sufficient opportunity must be given to both sides to adduce further evidence, if necessary. The parties are also be at liberty to make necessary amendments in their pleadings. The parties are directed to appear before the Sub Court, Attingal on 29.7.2013. There is no order as to costs. ## **sd/** **M.L.JOSEPH FRANCIS, JUDGE.** tgs