K.M. BALAN NAIR v. KULANGARATH MEETHAL MATHU AMMA and KULANGARATH NARAYANAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 24TH DAY OF JANUARY 2012/4TH MAGHA 1933 RSA.No. 359 of 2005 ( ) ----------------------AS.20/2004 of ADDL.DISTRICT AND SESSIONS COURT, VADAKARA OS.83/1998 of MUNSIFF COURT, VADAKARA ## APPELLANT(S)/RESPONDENT/PLAINTIFF: ------------------------------------------- - (*) K.M.BALAN NAIR, S/O. KELU NAIR, AGED 62 YEARS, PENSIONER, NADAKKUTHAZHA AMSOM MEPPAYIL DESOM, VADAKARA TALUK (DIED. LHRS.IMPLEADED) ## ADDL.APPELLANTS: 2. JANU, W/O. BALAN NAIR, AGED 68 YEARS, HOUSEWIFE, RESIDING AT KULANGARATH MEETHAL, NADAKKUTHAZHA AMSOM MEPPAYIL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 3. VALSALA, D/O.BALAN NAIR, AGED 44 YEARS, HOUSEWIFE, RESIDING AT KULANGARATH MEETHAL, NADAKKUTHAZHA AMSOM MEPPAYIL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 4. A.SASI KUMAR, S/O.BALAN NAIR, AGED 68 YEARS, NRI RESIDING AT KULANGARATH MEETHAL, NADAKKUTHAZHA AMSOM MEPPAYIL DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. (*)LHRS. OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 TO 4 AS PER THE ORDER DATED 22.11.2011 IN IA NO.2448/2011. BY ADVS.SRI.B.KRISHNAN SRI.R.PARTHASARATHY ## RESPONDENT(S)/APPELLANT/DEFENDANTS: ----------------------------------- 1. KULANGARATH MEETHAL MATHU AMMA, D/O. KELU NAIR, AGED 69 YEARS, SWASTHAM NADAKKUTHAZHA AMSOM, MEPPAYIL DESOM VADAKARA TALUK. RSA NO.359/2005 2 2. SON, KULANGARATH NARAYANAN, AGED 45 YEARS, MERCHANT, NADAKKUTHAZHA AMSOM MEPPAYIL DESOM, VADAKARA TALUK. SRI.C.VATHSALAN FOR R1 & R2 SRI.K.RAKESH ROSHAN FOR R1 & R2 SMT.THUSHARA.V FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24-01-2012,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.359 of 2005 -------------------------------------Dated this the 24[th] day of January, 2012.** ## **JUDGMENT** This Second Appeal arises from the judgment and decree of learned Additional District Judge, Vadakara in A.S.No.20 of 2004 reversing the decree granted by the learned Munsiff, Vadakara in O.S.No.83 of 1998. Appellant filed the suit originally for a decree for prohibitory injunction to restrain respondents from trespassing into plaint A schedule. Later, after the Advocate Commissioner submitted his report and plan, plaint was amended to incorporate plaint B schedule with an alternative prayer for recovery of possession in case it is found that plaint B schedule is in the possession of respondents. Trial court granted a decree for prohibitory injunction. The first appellate court reversed it and dismissed the suit. 2. According to the appellant, the suit property along with other items originally belonged to Kelu Nair as per a document of the year, 1949. While so, the said Kelu Nair assigned western portion of the total extent to the appellant as per Ext.A1, assignment deed dated 24.06.1969. A portion towards south of the entire property was assigned to the 1[st] respondent as per Ext.A2, assignment deed dated 20.12.1969. The said document covered two taks – first tak measuring 4.5 Ares and the second tak measuring 2.5 Ares. Kelu Nair bequeathed the property towards north of property covered by Ext.A2, **RSA No.359/2005** 2 assignment deed in favour of Paru Amma, Janaki Amma and the appellant as per Ext.A3, Will. The said Paru Amma and Janaki Amma assigned their right in the said property to the appellant as per Ext.A5. The property on the north-east of property covered by Ext.A3, Will and Ext.A1, assignment deed was assigned to Babu and Rajan as per a document of the year, 1969. The said Babu and Rajan assigned that property to Kumaran as per a document of the year, 1984. The said Kumaran assigned that property to the appellant as per Ext.A4. plaint A schedule is the property thus covered by Exts.A1, A3, A4 and A5. According to the appellant, plaint B schedule forms part of plaint A schedule. He claimed to be in possession of plaint B schedule and alternatively prayed for its recovery of possession. 3. Respondents resisted the suit on various grounds including that appellant has no title or possession of plaint B schedule. It is contended that plaint B schedule forms part of property covered by Ext.A2 and at any rate, the title if any of appellant over plaint B schedule is lost by adverse possession and the law of limitation. 4. Trial court, based on the evidence came to the conclusion that plaint B schedule is part of plaint A schedule, it is in the possession of appellant and granted a decree for prohibitory injunction. Respondent challenged that judgment and decree before learned Additional District Judge. Learned District Judge was not inclined to act upon Exts.C2 and C3, report and plan, observed **RSA No.359/2005** 3 that the Advocate Commissioner has merely carved out certain portions as per documents of title without reference to the respective survey numbers of properties and hence, no reliance can be placed on the said report and plan. Learned Additional District Judge took the view that respondents are in possession of plaint B schedule and since appellant has not preferred a cross objection against trial court disallowing the alternative prayer for recovery of possession, no decree for recovery of possession could also be granted in favour of the appellant. Though, respondent had raised a plea of adverse possession, first appellate court observed that on that plea respondent had not turned up to prove the same. So holding, appeal was allowed and the suit was dismissed. Hence this Second Appeal framing following substantial questions of law: i. Whether the lower appellate court is justified in opining that a cross appeal or appeal is necessary when the original relief granted is disturbed by the lower appellate court in the context of alternative relief when the proper course was to consider the alternative relief under Order XLI, Rule 33 of the Code of Civil Procedure (for short, “the Code”)? ii. Whether, the lower appellate court was justified in reversing the findings of possession by the trial court based on the commission report, the admission of the defendants in the written statement and the evidence of the plaintiff when there was no material on record referable to a change in finding by **RSA No.359/2005** 4 the lower court in the context of the judgment reported in Mohd. Salamatullah and others v. Government of Andhra Pradesh (AIR 1977 SC 1481)? 5. It is contended by learned counsel for appellant that first appellate court has gone on a wrong tangent in holding that measurements in Exts.C2 and C3 and in particular, in Ext.C3, are not correct. According to the learned counsel, entitlement of respondents is only to the property covered by Ext.A2, situated towards south-eastern portion of the total extent, the Advocate Commissioner found the boundary on the south and east of the said portion (and the total extent) in tact and commenced measurement from the eastern boundary so fixed. If that be so, there is no difficulty in holding that entitlement of respondents as per Ext.A2 is only for the three (3) Ares referred to therein. It is pointed out by learned counsel that as per Exts.A1, A3, A4 and A5, rest of the property belongs to the appellant and hence it is irrelevant whether there is deficit in the total extent on account of formation of road on the north and west of the total extent, or for any other reason. It is also submitted that since the prayer for recovery of possession was made as an alternative relief and the trial court granted a decree for injunction in favour of appellant holding that he is in possession of plaint B schedule, it was absolutely not necessary for the appellant to prefer a cross objection as if the alternative prayer has been disallowed by the trial court. The first appellate court, even if found that **RSA No.359/2005** 5 respondents are in possession of plaint B schedule ought to have allowed the alternative prayer invoking Rule 33 of Order XLI of the Code. A further argument is that once title of the appellant over plaint B schedule is found, the only defence which respondents could make is adverse possession and limitation and regarding which apart from Ext.B1, agreement allegedly executed between the parties in mediation, no document has been produced to prove possession of respondents for the statutory period and at any rate, holding the property hostile to the title of appellant. In that view of the matter it is requested that appellant may be granted a decree for recovery of possession of plaint B schedule. 6. Learned counsel for respondents contended that Exts.C2 and C3 as pointed out by the learned Additional District Judge in paragraphs 8 to 12 of the judgment under challenge, cannot be accepted. According to the learned counsel, Ext.C2 shows that there is deficit in the total extent of land covered by the document of 1949 as per Ext.A2, as per which Kelu Nair got title over the entire property and without locating the entire property in the proper manner, appellant cannot ask for a decree for recovery of possession of plaint B schedule. Further contention of learned counsel is that the middle measurement given in Ext.A2, assignment deed itself is not correct and that respondents acquired more extent than the three Ares referred to in Ext.A2. It is also pleaded that at any rate respondents have perfected title over plaint B **RSA No.359/2005** 6 schedule. 7. I am not impressed by the view taken by the learned Additional District Judge that appellant was bound to prefer a cross-objection against disallowing the alternative prayer for recovery of possession. For, relief prayed for by the appellant in the suit is prohibitory injunction claiming that he is in possession of plaint B schedule and the prayer for recovery of possession is only alternatively made. Therefore, when the trial court found that appellant is in possession of the suit property and granted a decree for prohibitory injunction, appellant was not all aggrieved by the decree and hence preferring an appeal or cross-objection or appeal as if appellant was not in possession of the suit property did not arise. Preferring a cross-objection arises only when the appellant was aggrieved by any part of the decree of the trial court or a finding made by it. Even if first appellate court found that respondents are in possession of plaint B schedule, if otherwise entitled, appellant could be given decree for recovery of possession invoking n Rule 33 of Order XLI of the Code. 8. Then, the next question is whether appellant has title over plaint B schedule? I have been taken through Exts.C2, report and C3, plan. It is not disputed that Ext.C3 is the final plan obtained by the trial court after remission of the earlier report and plan. 9. In Ext.C2, report the Advocate Commissioner has stated that he **RSA No.359/2005** 7 perused the photocopy of document No.589 of 1949 as per which Kelu Nair acquired title and possession of the entire property, that the eastern boundary of the property was in tact and there was no change and hence he started measurement from the eastern boundary of the entire property. On such measurement he found deficit in the east-west and north-west middle measurements. He also referred to the existence of Panchayat road on the north and west of the total extent. In Ext.C3, the Advocate Commissioner has, after measurement of the property with reference to the relevant documents identified the properties. It is seen from Ext.C3 that property of respondents as per Ext.A2 is situated towards south-eastern portion of the entire property and the boundary line of the property as per Ext.A2 is given in red line while boundary of property in the actual possession of respondents is given in blue line. As seen from Ext.C3, respondents are in possession of more extent than what respondents are entitled as per Ext.A2, assignment deed. 10. I have been taken through paragraphs 8 to 12 of the judgment of learned Additional District Judge where learned Additional District Judge has observed that since there is deficit in the total extent of land going by the middle measurements, east-west and north-south, and roads have been formed on the north and west, identification made by the Advocate Commissioner in Ext.C3 is not correct. 11. I fail to understand that reasoning. It is not disputed that the entire **RSA No.359/2005** 8 extent belonging to Kelu Nair, whatever it be, less the property covered by Ext.A2 has come to the hands of appellant as per Exts.A1, A3, A4 and A5. I also stated that there is no dispute regarding the eastern and southern boundary of the total extent and that property belonging to the respondents as per Ext.A2 is towards south-eastern portion of the total extent. There is no dispute regarding the southern and northern boundaries of respondents. If that be so, it is irrelevant whether there is deficit in the total extent of property acquired by Kelu Nair as per document No.589 of 1949, either on account of mistake in the middle measurements, east-west or north-south, or on account of formation of road on the north or west. That deficit if any will affect only the appellant. That does not in any way affect the claim of respondents as per Ext.A2 and, it can only be said that if there is any deficit in the total extent, it is of the property covered by Exts.A1, A3, A4 and A5. Therefore, reasoning adopted by the learned Additional District Judge in paragraphs 8 to 12 cannot be upheld. 12. Now the next question is whether the measurement of the property belonging to the respondents as per Ext.A2 in Ext.C3, plan is correct? Learned counsel for respondents has invited my attention to Ext.C5, plan to show that position of the Well and portion of the house do not tally with Ext.C3. 13. I stated that Ext.C3 is the final plan obtained by the trial court. Though respondents have a contention that they have acquired more extent of land than what is covered by Ext.A2, there is no basis for that **RSA No.359/2005** 9 contention. In Ext.A2, the property assigned to the respondents is described by extent and the north-south and East-west measurements. Respondents are entitled only to that much extent and not for an inch more. The property covered by Ext.A2 is specifically marked in Ext.C3, plan and in the absence of any evidence that respondents acquired more extent than what is stated in Ext.A2, their entitlement must be confined to the property covered by Ext.A2 and as shown in Ext.C3, plan in red line. If that be so, it is clear that rest of the property in the possession of respondents is part of property belonging to the appellant as per Exts.A1, A3, A4 and A5. Therefore, finding of the first appellate court that appellant has no title over plaint B schedule cannot be accepted. 14. Now coming to the plea of adverse possession, it is seen that what is produced by the respondents is Ext.B1, an agreement said to be entered into between the parties in mediation. That document is not sufficient to show that the respondents are in possession of plaint B schedule for more than the statutory period and at any rate, holding it with hostile animus to the title of appellant. It is settled that so far as adverse possession is concerned, it is not the mere length of possession that is important but, holding the property adverse to the title of the real owner to his knowledge for the statutory period. In this case no sufficient evidence is produced to show that respondents have perfected title over plaint B schedule by adverse possession and limitation. **RSA No.359/2005** 10 Therefore, title of appellant over plaint B schedule as per Exts.A1, A3, A4 and A5 must stand and appellant is entitled to recover possession of plaint B schedule. 15. The substantial questions of law framed in the appeal are answered accordingly. Resultantly this Second Appeal succeeds. Judgment and decree of the first appellate court in A.S.No.20 of 2004 are set aide. Judgment and decree of the trial court in O.S.No.83 of 1998 is modified declaring title of appellant over plaint B schedule and allowing the appellant to recover possession of plaint B schedule from the respondents. No costs. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** ## **cks**