Kunnumbron Yeshoda v. P.K. Shanavas and P.K. Shameer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY, THE 14TH DAY OF MARCH 2014/23RD PHALGUNA, 1935 RSA.No. 1345 of 2010 ------------------------AS 126/2007 of ADDL.DISTRICT COURT, THALASSERY OS 113/2006 of PRL.MUNSIFF COURT,KANNUR ## APPELLANT/APPELLANT/PLAINTIFF: --------------------------------------------- KUNNUMBRON YESHODA, W/O.LAKSHMANAN, AGED 58 YEARS, VEENA NIVAS, YOGASALA ROAD, TALAP, KANNUR-2. BY ADVS.SRI.T.G.RAJENDRAN SRI.CIBI THOMAS ## RESPONDENT/RESPONDENTS/DEFENDANTS: --------------------------------------- 1. P.K.SHANAVAS, S/O.IBRAHIM, AGED 25 YEARS, CC NO.28/861, M/S.SHALIMAR PAPER MART MA ROAD, KANNUR-1. 2. P.K.SHAMEER, S/O.IBRAHIM, AGED 23 YEARS, RESIDING -DO-. BY ADV. SRI.T.KRISHNAN UNNI (SENIOR ADVOCATE) BY ADV. SRI.SAJU.S.A SRI. JAMSHEED HABIZ THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 1403-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mrcs ## **K.HARILAL, J.** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** ## **R.S.A. No.1345 of 2010** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 14[th] day of March, 2014 ## **JUDGMENT** The appellant herein is the plaintiff in O.S.No.113/2006 on the files of the Principal Munsiff's Court, Kannur, as well as the appellant in A.S.No.126/2007 on the files of the Additional District Judge, Thalassery and the respondents are the defendants in the original suit as well as the respondents in the appeal. The suit is one for permanent prohibitory injunction, restraining the defendants and their men and agents from trespassing into the plaint B schedule property, which is a part of plaint A schedule property. According to the plaintiff, B schedule property, which is in the nature of a shed, lies on the eastern side of the plaint A schedule property and on the northern side of the defendants' property. According to the defendants, B schedule property belongs to them by virtue R.S.A.No.1345 of 2010 2 of Ext.B3 sale deed and they are in possession and enjoyment of the property. Hence they filed a counter claim seeking a direction to the plaintiff to close the door installed by her on the eastern wall of A schedule building and for an injunction restraining the plaintiff from trespassing into the property in dispute. After trial, the trial court dismissed the suit and allowed the counter claim preferred by the defendants. Feeling aggrieved, though the plaintiff had preferred the above appeal, the appellate court also confirmed the decree and judgment passed by the trial court. This Regular Second Appeal is filed challenging the concurrent findings dismissing the suit filed by the plaintiff and allowing the counter claim filed by the defendants. 2. The learned counsel for the appellant submits that the concurrent findings of the courts below are illegal and opposed to the facts and evidence available on record. In fact, the evidence in the case establishes the fact that the plaintiff is in possession of B schedule property and the commissioner, in his report, categorically stated that it is R.S.A.No.1345 of 2010 3 not possible to enter B schedule property from the defendants' property. The courts below failed to consider the commission report in its correct perspective and found that the defendants are in possession of B schedule property. The defendants have not chosen to mount the box and give evidence regarding their possession. D.W.1, who is allegedly the manager of the first defendant has no authority or competency to depose regarding the state of affairs. The courts below ought to have believed the evidence tendered by D.W.1 regarding the dispute of the property. The courts below went wrong by finding that the nature of construction in B schedule property is in such a way as to appear that the said construction was made by the defendants. The courts below have erred in considering the boundaries of B schedule property in Ext.B3 and went wrong by finding that the boundaries in Ext.B3 document tally with the actual boundaries stated in the commission report. 3. Per contra, the learned counsel for the respondents R.S.A.No.1345 of 2010 4 advanced arguments to justify the concurrent findings in the impugned judgments under challenge. According to the learned counsel, the plaintiff has no case that she has right and possession over the property comprised in Sy.No.377. But, the evidence on record sufficiently proves that B schedule shed is situating in Sy.No.377. On the other hand, Ext.B3 sale deed clearly proves that the property comprised in Sy.No.377 belongs to the defendants. The courts below rightly compared the existing boundaries of B schedule property with Ext.A1 document and Ext.B3 sale deed, and found that the description including the boundaries tallies with the boundaries and the description shown in Ext.B3 sale deed, whereas the existing boundaries do not tally with the boundaries shown in Ext.A1 document. It is also reported in Ext.C3 commission report that the second thak which is claimed by the plaintiff lies on the northern side of A schedule property. As rightly found by the courts below, the construction of B schedule shed is in such a manner protruding and projecting towards the defendants' property R.S.A.No.1345 of 2010 5 on the south and the defendants Tharavadu property on the eastern side. The learned counsel drew my attention to Ext.C1 commission report which categorically stated that there is an entrance through the defendants' property to B schedule property and that door remains locked and it is possible to enter into B schedule property from the defendants' property. 4. Heard both sides. I have given my anxious consideration to the rival submissions at the Bar. The short question that arises for consideration is, whether there is any illegality or impropriety or perversity in any of the findings in the impugned judgments under challenge? 5. The case of the plaintiff is that she is the absolute owner in possession of A and B schedule properties by virtue of Ext.A1 title deed. On the other hand, the case of the defendants in the counter claim is that B schedule property, which is scheduled as Item No.2 in the counter claim, absolutely belongs to the defendants by virtue of Ext.B3 sale deed. Thus, it could be seen that both parties R.S.A.No.1345 of 2010 6 are claiming right and possession over B schedule property, which is in the nature of a shed. It is significant to note the lie of B schedule property. B schedule property lies on the eastern side of A schedule property as well as on the northern side of the defendants' property. Going by Ext.C1 commission report, it could be seen that B schedule property is having entrance from A schedule property as well as the defendants' property, which is scheduled as Item No.1 in the counter claim. Admittedly, the property, which lies on the eastern side of B schedule property, belongs to the Tharavadu of the defendants and B schedule property is having access from eastern side also. Thus, on the date of suit, B schedule property was having access from both the plaintiff's property and the defendants' property. As far as the reliefs sought for by the plaintiff as well as the defendants in the counter claim are concerned, the right and possession over the property on the date of suit is a crucial question to be considered. There is no dispute as to the identity of the disputed property which is scheduled as R.S.A.No.1345 of 2010 7 B schedule in the plaint and Item No.2 in the counter claim. The commissioner visited the property and filed Ext.C1 report, which shows the lie of the property as on the date of the suit. Thereafter, the very same Commissioner with the aid of Surveyor measured the property in accordance with Ext.A1 sale deed and Ext.B3 sale deed, the documents, on which, both parties relied on their claim respectively and filed a report and plan which is marked as Exts.C3 and C4. The disputed property has been identified by the Commissioner in Ext.C4 plan as 'ABGIG'. According to the plaintiff, Tak No.2 covered by Ext.A1 is B schedule property. In Ext.C4 commission report, the Commissioner has specifically stated that he has measured and located three Taks mentioned in Ext.A1. Tak No.1 is located as the area covered by 'HIAGFJK'. Tak No.2 is measured as 'LMAI'. Tak No.3 is noted as 'NOPQ' as rightly held by the courts below. It is clear from Ext.A1 that the second Tak in Ext.A1 is on the northern side of Tak No.1. But, the disputed B schedule property is identified by the R.S.A.No.1345 of 2010 8 commissioner as 'ABGIG' which is seen situated on the east of Tak No.1. Secondly, the plaintiff has no case that she is having a property in R.Sy.No.377. But, on measurement, it was found by the Commissioner that B schedule property comprises in R.Sy.No.377. Moreover, it was also found that as per Ext. A1, the property of the plaintiff comprises in RS.No.378/1. Therefore, in view of Exts.C3 commission report and C4 plan, it cannot be held that the plaintiff had acquired right over B schedule property by virtue of Ext.A1 sale deed. 6. Thirdly, the courts below compared the description of B schedule property including the boundaries with actual boundaries reported in Exts.C1 to C4. In view of Exts.A3 to A5 and B3, A3 to A5 are the prior documents from which the defendants claimed title and possession. The court below, after comparison of the description of B schedule property, found that the boundaries shown in Exts.A3 to A5 are corresponding to boundaries shown in Ext.B3. The survey numbers are also getting tallied with R.S.A.No.1345 of 2010 9 those mentioned in Ext.B3 and the basic deeds Exts.A3 to A5 as rightly held by the court below. On a comparative analysis of Exts.A3 to A5, the basic deeds and Ext.B3, on which, the defendants are relying on their title and possession over the B schedule property, it is seen that boundaries, description and survey number are getting tallied. 7. The learned counsel for the appellant submit that as per Exts.A3 to A5, the extent of B schedule property in Ext.B3 is one cent; but the actual extent is only ¾ cents only. So, according to the learned counsel, the discrepancy in the extent would show that the predecessors of defendants had not been in possession of so much extent of land while transferring the property in favour of the defendants by way of Ext.B3. But, I find that the extent of property is not a matter in issue but on the mere fact that the extent does not tallies with the actual extent on measurement, it cannot be held that the defendants have no title or possession over the property. Particularly, when R.S.A.No.1345 of 2010 10 both parties have no dispute as regards the extent of property. The matter in issue is the right and possession over the property; not the extent of property. Therefore, I concur with the findings of the court below that survey number, boundaries and description of the properties are in consonance with the survey numbers and boundaries shown in defendants' prior documents Exts.A3 to A5. 8. The court below rightly relied down **Krishnamoorthy Iyer v. Janaki Amma** [1957 KLT 886], the decision, which held that when there is a conflict between the area and boundaries, the description of the boundaries should be accepted in preference to area mentioned in the document for determining the extent of land conveyed thereunder. In short, the boundaries predominate and the rest is regarded as erroneous or inaccurate description. 9. Forthly, let us examine the nature of construction in B schedule property. The beam of the shed is fixed on the wall of the property of the defendants and the rafters of B R.S.A.No.1345 of 2010 11 schedule shed is protruded to a length of about 2 feet to the land situated on the east of B schedule property, which according to the defendants belonged to their taravad. Thus, it could be seen that the shed was constructed in a way projecting towards defendant’s taravad property and south towards defendants property. The nature of construction shows that the construction in B schedule forms a part of construction in defendants' property and the above view is further supported by entrance from defendants' property to B schedule property reported in Ext.C1 report. It is also pertinent to note that when the plaintiff made an attempt to trespass into B schedule shed the defendants had preferred Ext.B9 complaint on 06/02/2006 alleging trespass on their property by the plaintiffs. 10. On an over all evaluation of the evidence on record, both oral and documentary, it could be seen that there is no illegality or impropriety in the findings that as on the date the defendants wherein possession of the property. R.S.A.No.1345 of 2010 12 I do not find any kind of perversity in the appreciation of evidence from which the above findings have arrived at. In view of the right and possession found in favour of the defendants by the courts below, the reliefs granted in the counter claim are justifiable. Hence, this second appeal is dismissed. **K.HARILAL, JUDGE.** Okb/stu //True copy// P.A to Judge