M. Sasidharan Pillai and C.K. Ponnamma v P. Raghavan Pillai and E. Omanakutty Ammal

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932** **SA.No. 489 of 2001()** **-----------------------------** **AS.337/1993 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.1021/1989 of PRL.MUNSIFF COURT,TRIVANDRUM** **....................** ## **APPELLANT(S) IN SA. APPELLANTS- DEFENDANT** - **-------------------------** **1. M.SASIDHARAN PILLAI, SON OF MADHAVAN PILLAI, P&T EMPLOYEE, RESIDING AT KIZHAKKATHIL VEEDU, AYANICAUD, ETTAMKALLU, KARAKULAM VILLAGE, KARAKULAM P.O. FROM VETTAMPARAMBIL VEEDU, KIZHAKKANELA, KALLUVATHUKKAL, QUILON.** **2. C.K.PONNAMMA, WIFE OF SASIDHARAN PILLAI, KELTRON EMPLOYEE, RESIDING AT DO. DO.** - **BY ADV. SRI.VPK.PANICKER SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.M.R.RAJESH** ## **RESPONDENT(S): IN SA. / RESPONDENTS / PLAINTIFF** - **----------------------------** **1. P.RAGHAVAN PILLAI, SON OF PARAMESWARAN PILLAI, CITY CORPORATION EMPLOYEE, RESIDING AT RAJANI NIVAS, VAZHAYILA, IRUTHUMMOOLA MURI, RANDAMADA VILLAGE, THIRUVANANTHAPURAM TALUK.** **2. E.OMANAKUTTY AMMAL, WIFE OF RAGHAVAN PILLAI, KELTRON EMPLOYEE RESIDING AT DO. DO.** **R1 & R2 BY ADVS. SRI.V.SURESH, SRI.G.SUDHEER.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON 15/06/2010 DELIVERED THE FOLLOWING:** ## **ORDER ON CMP. NOS. 1075/2001 & 2347/2001 IN SA. 489/2001** ## **DISMISSED** **15/06/2010** **SD/- P.BHAVADASAN, JUDGE** **TRUE COPY** **P.S. TO JUDGE** **tss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - ## S.A. No. 489 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of June, 2010. ## **JUDGMENT** The defendants, who suffered a decree at the hands of the Principal Munsiff's Court, Thiruvananthapuram in O.S. 1021 of 1989 are the appellants herein. The parties and facts are referred to as they are available before the trial court. 2. The plaintiffs claimed to have obtained 5.057 cents in Sy. Nos.164 and 165 of Chettivilakam Village as per sale deed No.4692 dated 26.12.1989. That is shown as plaint A schedule property. Plaint B schedule property, which is a portion of plaint A schedule property has an extent of 300 square links. The defendants are owners of C schedule property having an extent of 4.4 cents in Sy. No.165, which they obtained under sale deed No.4295 dated 26.12.1988. Plaint A and C schedule properties originally belonged to a common owner, from whom the plaintiffs and defendants S.A.489/2001. 2 purchased the properties by laying the boundaries. No boundary wall as such was put up to separate the properties. The allegation is that on 5.3.1989 the defendants removed the boundary stones, trespassed into the western portion of plaint A schedule property and constructed a basement by annexing plaint B schedule property. A new building has been put up in C schedule. A portion of the building extends to plaint B schedule property. The construction is against the Building Rules. On the basis of these allegations the suit was laid for fixation of boundary, declaration of title, recovery of possession etc. 3. The defendants resisted the suit. It was contended that the plaint schedule descriptions are incorrect. Even though the plaintiffs had purchased 5.057 cents, they are now in possession of excess land. The properties of the plaintiff and the defendant is separated by a rubble wall. The property lying on the western side of the rubble wall is in the possession and enjoyment of the defendants. Plaint B schedule does not form part of plaint A S.A.489/2001. 3 schedule property. The construction that is being carried on in C schedule is strictly in accordance with the relevant rules. None of the allegations have any substance and they prayed for a dismissal of the suit. Later on the written statement was amended challenging the correctness of the plans that is appended to the sale deeds of the respective parties. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A5 from the side of the plaintiffs. The defendants had D.Ws. 1 to 3 examined and Exts.B1 to B4 marked. Exts. C1, C2 and C2(a) are the commission reports and plan. Relying mainly on the commission reports and plan, the trial court came to the conclusion that plaint B schedule forms part of plaint A schedule and also that a portion of the property to which the defendants are entitled to is in the possession of a third party. The contention that the plans appended to the sale deeds are incorrect did not find favour by the trial court and S.A.489/2001. 4 the court also directed the defendants to remove the portion of the structure protruding into B schedule. 5. The defendants carried the matter in appeal as A.S.337 of 1993 before the District Court, Thiruvananthapuram. The appellate court concurred with the trial court, but slightly modified the decree of the trial court. It is against this concurrent finding that the present appeal has been filed. 6. The substantial questions of law formulated in the Second Appeal reads as follows: _“i) Did not the courts below act contrary to law in the matter of identifying in accordance with law, as to the identity of the respective properties obtained by the plaintiffs and the defendants, due regard being had to be nature of the transactions and conduct of parties? Have not the courts below erred in law in deciding the cause?_ _ii) When plot of land forming part of a larger extent of property is alienated by fixing land value on the basis of the extent sold, will not the extent of property covered by the deed supercede_ S.A.489/2001. 5 _the boundary measurements given in the description of the deed?_ _iii) Have not the courts below gone wrong in holding that the property within the side measurements mentioned in the plan is to govern the animus of ownership in preference to the extent of property purchased as per document of conveyance?_ _iv) Did not the courts below go wrong in adjudicating and holding that a person not a party to the suit had committed trespass of the defendants' property, without ordering the wrong doer to be brought on record under the powers of the court as per Order 1 Rule 10 of the Code of Civil Procedure?_ _v) Did not the courts below go wrong in not dismissing the suit for non-joinder of necessary parties in spite of finding that the entire property in dispute belong to one and the same predecessor in interest and the property due to the defendant is in the hands of the neighbour who purchased the same only 2 months prior to the sale in favaour of the plaintiffs and defendant by a common predecessor in interest?_ S.A.489/2001. 6 _vi) Did not the courts below act contrary to law while they failed to address themselves to the question as to whether the issues involved in the suit could be decided without the junction of the owner of the property on the western side of plaint C schedule? Did not the courts below act contrary to law in deciding the issues involved in the suit without the junction of the owner of the property on the western side of plaint C schedule?”_ 7. Learned counsel appearing for the appellants pointed out that the courts below have grievously erred in finding that plaint B schedule property is a part of plaint A schedule property. Both the courts below have found that a portion of the property to which the defendants are entitled to is in the possession of a third party. Such a finding was rendered without the third party on the party array and that makes the judgments and decrees of the courts below bad in law. Learned counsel also pointed out that the direction by the courts below to demolish the portion of the building protruding into plaint B schedule is without any basis. The S.A.489/2001. 7 plaintiffs have stood by when the construction was going on and after the construction is completed they cannot contend that the portion of the structure is protruding into plaint B schedule especially when there is nothing to show that plaint B schedule forms part of plaint A schedule property. In support of his contention that when there is a difference in the extent and boundary, while construing the document, normally the boundaries should prevail. 8. Learned counsel appearing for the respondents on the other hand pointed out that there are absolutely no grounds made out to interfere with the judgments and decrees of the courts below. The commissioner has clearly identified plaint B schedule property shown as HKVW in Ext.C2(a) plan and also that it forms part of plaint A schedule property. If that be so, the courts below were justified in granting reliefs to the plaintiffs. The courts below have also found that a portion of the construction is protruding into plaint B schedule property and it was rightly directed to be pulled down. Learned counsel for the S.A.489/2001. 8 respondents pointed out that the sale deeds in favour of each of the parties were accompanied by a plan and in such circumstances the respective vendees cannot be heard to say that the plan is incorrect. In support learned counsel relied on the decision reported in **Sumathy Amma v. Sankara Pillai** (AIR 1987 Kerala 84). 9. The main contention raised before this court is that the courts below ought not to have entered a finding that a portion of the property to which the defendant is entitled to is in the possession of a third party without that person on the party array. Learned counsel pointed out that apart from the fact that the defendants, going by the commission report, are in possession of a lesser extent of area, they cannot proceed against a third person also. Even going by the commission report, the property owned by a third person is well bounded on all four sides by compound walls. Learned counsel stressed that plaint A, B and C schedule properties and also the property belonging to the third person originally belonged to the same owner. It is S.A.489/2001. 9 also contended that the entire property ought to have been measured before coming to the conclusion as to the extent of property to which each party is entitled to. 10. The decision referred by the learned counsel for the appellants cannot be of any help in this case to the appellants with regard to the claim that the extent should prevail over the boundaries etc. In the decision reported in **Savithri Ammal v. Padmavathi Amma** (1990(1) KLT 187) it was held that the usual rule is that when there is conflict regarding area and the boundaries, the description of the boundary normally be accepted. But that is not an inflexible rule. There may be instances where the extent may prevail. 11. One must notice that the sale deeds in favour of the plaintiffs and the defendants, which were on the same day were accompanied by plans. It could not therefore be said that there is no identity and certainty with regard to the properties that was conveyed to each of the parties. If that be so, going by the decision reported in Sumathy Amma's case, when the parties have taken pains S.A.489/2001. 10 to have the plan appended to the document, the importance of the plan cannot be lightly ignored. It was also held that the plan forms part of the document. There is no merit in the contention that the entire property, which was initially owned by the common owner ought to have been measured. Merely because it has been found by the commissioner that a portion of the property to which the defendants are entitled to is in the possession of a third party, that does not mean that the plaintiffs are not entitled to any relief. Whether the defendants have any remedy against the third party is not a matter that needs to be considered in the present suit. 12. Both the courts below have considered the contention of the defendants that the measurements shown in the documents are wrong. They have also considered the commission reports and plan produced by the commissioner. It is interesting to note that the trial court has found that Ext.B1 is accompanied by a plan showing the measurements of the entire property, which belonged to the assignor, that S.A.489/2001. 11 is both plaint A and B schedule properties, and the separately demarcated property shown sold to Balakrishna Pillai, who is characterized as the third party by the appellants herein. Going by the plan appended to the respective documents, the commissioner has identified the property, which belonged to the plaintiff as ABCDEFGHKV. The property to which the defendants are entitled to is identified as KLMTUV. The plot shown as HKVW, which forms part of plaintiffs' property is the disputed portion. The encroached portion measures 275 square links. It is true that the plot identified by the Commissioner as belonging to the plaintiffs has an extent of 6.050 cents. But the Commissioner has identified the property with respect to the survey measurements and the plan appended to the respective documents. Under these circumstances, it could not be said that the courts below have erred either on facts or in law in finding in favour of the plaintiffs. S.A.489/2001. 12 The result is that, this appeal is without any merit and it is liable to be dismissed. I do so confirming the judgments and decrees of the courts below. **P. BHAVADASAN, JUDGE** sb.