Kundamadathil Vijayalakshmi Amma v. Kunhimohammed, Mohammedali, Kunhali, Hamza, Moossa and Pathumma alias Malu Umma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 24TH DAY OF MARCH 2017/3RD CHAITHRA, 1939 RSA.No. 1120 of 2004 (G) ------------------------AGAINST THE JUDGMENT AND DECREE DATED 30.06.2003 IN AS NO. 41/1995 of DISTRICT COURT, MANJERI AGAINST THE JUDGMENT AND DECREE DATED 07-02-1995 IN OS NO. 354/1989 of MUNSIFF'S COURT, MANJERI ## PLAINTIFF/APPELLANT/APPELLANT:: ------------------------------------------- KUNDAMADATHIL VIJAYALAKSHMI AMMA D/O. KUNHILAKSHMI AMMA, SECRETARIAT COLONY, KILPARK, MADRAS-10, TAMILNADU. BY ADVS.SRI.SANTHEEP ANKARATH SRI.ARUN MATHEW VADAKKA **N** RESPONDENT(S)/DEFENDANTS 2 TO 7/RESPONDENTS 1 TO 6/RESPONDENTS: ------------------------------------------------------- 1. KUNHIMOHAMMED, S/O.ILLIKKAL HASSAN, KALIKAVU AMSOM, THRIKKUNASSERI DESOM, MAMPAD MOOLA, P.O. CHOKKAD, ERNAD TALUK, MALAPPURAM DISTRICT. 2. MOHAMMEDALI, S/O. -DO-, RESIDING AT -DO- -DO-. 3. KUNHALI, S/O. -DO-, RESIDING AT -DO- -DO-. 4. HAMZA, S/O. -DO-, RESIDING AT -DO- -DO-. 5. MOOSSA, S/O. -DO-, RESIDING AT -DO- -DO-. 6. PATHUMMA ALIAS MALU UMMA, W/O. ILLAKKAL HASSAN, RESIDING AT -DO- -DO-. R3 & R6 BY ADV. SRI.N.NANDAKUMARA MENON (SENIOR ADVOCATE) R2,R3,R4 & R6 BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** **-------------------------------------R.S.A. No.1120 of 2004 -------------------------------------Dated this the 24[th] day of March, 2017** ## **JUDGMENT** The plaintiff in a suit for declaration and permanent prohibitory injunction has approached this Court aggrieved by the concurrent dismissal of his suit by the lower courts. 2. Heard the learned counsel for the appellant and the learned Senior Counsel appearing for the contesting respondents. 3. Facts, in brief, for disposal of the case are as follows:Plaint A and B schedule properties belonged to Chathara Nair, who is the uncle of the plaintiff. After his death, a partition took place between the plaintiff and her sister Rathnavalli on 06.05.1974. That document is marked as Ext.A1 before the trial court. As per Ext.A1, A schedule property was set apart to the share of plaintiff and B schedule property was set apart to her sister Rathnavalli. According to the plaint averments, item No.17 in Ext.A1 partition deed is described in plaint A schedule and item No.19 in Ext.A1 partition deed is described in plaint B schedule. It is an admitted case that the defendants are assignees from the plaintiff's sister Rathnavalli. Ext.B5 is the assignment deed executed by Rathnavalli in favour of the defendants. According to the plaint averments, the defendants tried to 2 RSA No.1120 of 2004 trespass upon plaint A schedule property on the reason that there are some mistakes in the description of boundary. 4. The defendants filed a written statement contending that the property purchased by them from Rathnavalli as per Ext.B5 is not item No.19 in Ext.A1 partition deed, but it is actually item No.17 in Ext.A1. It is the contention of the defendants that by virtue of mistakes in the recitals in Ext.A1, the plaintiff is trying to grab the properties purchased by the defendants as per Ext.B5. According to the defendants, Ext.B5 property is abutting a public road and the property set apart to the plaintiff as per Ext.A1 is on the southern side of their property. 5. The trial court, after examining one witness on the plaintiff's side and two witnesses on the defendants' side and also on considering Exts.A1 to A8, B1 to to B16 and C1 to C7 series, dismissed the suit. Learned trial Judge in paragraph 14 o the judgment observed as follows: _“The boundaries of item No.17 in Ext.A1 are, east :_ ക�ട�യ�ര�പ�പറന�'. _However the boundary will tally, if plot 'A' is item No.17 or plot B+C+a portion of plot D, is item No.17. The northern boundary of item No.17 in Ext.A1 is “_ രത�വല കകവശ� പപ�യ�ല”. _The boundaries will not suit plot 'A' in Ext.C4. This boundaries will agree only if plot B+C+a portion of plot D Constitute item No.17. The_ 3 RSA No.1120 of 2004 _western boundary of Item No.17 of Ext.A1 is “_ ഓഹര� ��ല� _”. The southern boundary of item No.17 of Ext.A1 is “_ അയപന കകവശ� പപ�യ�ല _”. Thus the southern boundary can never suit plot A in Ext.C4 because “_ അയപന കകവശ� പപ�യ�ല” _is plot 'D' in Ext.C4. Similarly, the boundaries of item No.19 of Ext.A1 is east : “_ ക�ട�യ�ര�പ” _western boundary is “_ ഓഹര� ��ല� _and southern boundary is “_ വ�ജയലക"#� കകവശ� പപ�യ�ല” _. The southern boundary of item No.19 of Ext.A1 will clinch the matter because only if plot A is item No.19, the southern boundary for item No.19 will suit the identification as revealed from the boundaries. Therefore, it is found that item No.19 of Ext.A1 document is plot 'A' of Ext.C4 plan. It is clear that plot 'A' is not item No.17 of Ext.A1 document. Therefore the suit is only to be dismissed. There is no doubt that plot 'A' in Ext.C4 is item No.19 in Ext.A1 document. There is no point in saying that the mistakes are committed in the boundaries, that the previous practice of noting the boundaries in clock-wise direction is carried over in regard to item Nos.17, and 19 of Ext.A1 document. If that is so, that mistake ought to have occurred in regard to all the 21 items covered by Ext.A1 document. I find no basis to find that the boundaries_ 4 RSA No.1120 of 2004 _for item Nos.17 and 19 of Ext.A1 document are incorrect. However there is a mistake in the descriptive portion in item Nos.17 and 19 of Ext.A1 document. Instead of “_ ക�ഞ�ര� പപ�യ�ല പ%പ&%ല _” in item No.17, it is wrongly described as '_ വടപ&%ല _Similarly for item No.19 it should have been described as “_ ക�ഞ�ര� പപ�യ�ല വടപ&%ല _”. But it is wrongly described as “_ പ%പ&%ല”. _However when there is a conflict between the description and boundaries, boundaries will have to prevail. For the above reasons it is found that the plaintiff has got no right, possession or title over the plaint schedule property. I have already mentioned as to what are the correct boundaries of plaint A schedule property. Issues 1, 2 and 7 are answered accordingly against the plaintiff.”_ 6. The matter was taken up in first appeal before the District Court. Learned District Judge after re-appreciating the evidence, agreed with the trial court's view and found none of the suit claims allowable. 7. Learned Single Judge at the time of admission framed two substantial questions of law. It can be seen that the 2[nd] substantial question suggested by the learned Single Judge is purely a question of fact, which cannot be considered in a second appeal by virtue of the 5 RSA No.1120 of 2004 provisions in Section 100 of the Code of Civil Procedure,1908 (in short, “CPC”). Learned Senior Counsel appearing for the contesting respondents relied on **Syeda Rahimunnisa v. Malan Bi (dead) by L.Rs. and another (AIR 2016 SC 4653)** , which reiterated the existing principle of law settled by the Supreme Court on this point. A proposition that factual questions cannot be considered in a second appeal is indubitable. Therefore, the only substantial question of law surviving for determination is as follows: _“When there is a conflict between the description of a property and the boundaries stated in a document, is it not the law that the more clearer and more specific should be preferred after looking into the attendant circumstances rather than following the rule that the boundaries will prevail which applies only to cases where the conflict is between extent and boundaries.”_ 8. The courts below concurrently found that property set apart in Ext.A1 to the plaintiff is item No.19. Boundary descriptions clearly show that the property set apart to plaintiff in Ext.A1 is on the southern side and the property set apart to her sister (Rathnavalli), assignor of the defendants, is on the northern side. The dispute arose on account of the fact that a road was later formed on the northern side of item No.17 and value of the property has increased many fold on formation of the road. 6 RSA No.1120 of 2004 Relying on the oral and documentary evidence and especially the commissioner's report, the courts below concurrently found that description in Ext.A1 would show that the property set apart to the plaintiff is item No.19. The settled principle regarding interpretation of deeds has been reiterated in **Savithri Ammal v. Padmavathi Amma (1990 (1) KLT 187)** by a Division Bench of this Court in the following words: _“In cases where there is a difference in the extent and the boundary covered by a document, one or the other which is clearer and more specific has to be preferred. In some cases it may be the boundary. In some other cases it may be the extent and in yet other cases it may be the side measurements. There is no invariable rule in this regard. The usual rule is that when there is a conflict between the area and the boundaries, the description of the boundaries should be accepted in preference to the area mentioned in the document for determining the extent of the land conveyed thereunder. This is not an inflexible rule. When from the proved circumstances it is clear that the intention of the parties was only to convey the extent mentioned in the document, even though the boundaries would take in a larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail.”_ 7 RSA No.1120 of 2004 It is clear from Ext.A1 that the boundary descriptions of the property allotted to the plaintiff would show that it is item No.19 and in the facts and circumstances of this case, boundaries will prevail over other descriptions. Therefore, I find no reason to hold that the view taken by the courts below is incorrect in any manner. The substantial question of law can only be answered against the appellant/plaintiff finding that her property is item No.19 in Ext.A1 document. 9. Learned counsel for the appellant/plaintiff raised a contention that for formation of the road, a portion of land from the northern property (item No.17 in Ext.A1) was taken. There is diminution in extent in the appellant's property is the contention. Learned Senior Counsel appearing for the respondents opposed this submission contending that such a question cannot be decided in this appeal. The prayer in the plaint for fixation of boundary is based on the assumption that the appellant/plaintiff got allotment of item No.17 in Ext.A1. But, factually it is seen that it was item No.19 in Ext.A1. Therefore, on the basis of the reliefs sought for in the plaint, prayer for fixation of boundaries cannot be allowed. 10. Learned counsel for the appellant challenged the following observations in the trial court's judgment: _“ .............. The defendants' further contention is that from item No.17 some portions have been_ 8 RSA No.1120 of 2004 _given to the Mosque by Damodaran Nair, the uncle of the plaintiff. So also some portion of plot 'D' which was part of item No.17 was also given to the Madrassa people. According to the defendants item No.17 in Ext.A1 is plot B+C+some portion of plot 'D' in Ext.C4 plan.”_ It is contended that this observation made by the trial court was without any pleading or evidence. It is the trite law that any finding entered without a pleading or evidence will not bind the parties. 11. Learned Senior Counsel for the respondents submitted that the above observation was made on the basis of Ext.C3 plan. However, that cannot be decided in this appeal and it is left open to be decided in appropriate proceedings, if it is brought up at the instance of appellant/plaintiff. The appeal is devoid of any merit and hence it is dismissed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**