Mathew v. Karthiyani and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 19382016 RSA.No. 828 of 2008 (F) ------------------------ AGAINST THE JUDGMENT AND DECREE IN AS NO. 137/2007 of SUB COURT, PERUMBAVOOR DATED 13-12-2007 AGAINST THE JUDGMENT AND DECREE IN OS NO. 51/2004 of MUNSIFF COURT, KOLENCHERRRY DATED 16.03.2007 APPELLANT/APPELLANT IN A.S.NO.137/2007/PLAINTIFF IN O.S.NO.51/2004: ------------------------------------------ MATHEW, AGED 76 YEARS, S/O.JOSEPH, THENUGAL HOUSE, PERINGOLE KARA, AIKKARANAD NORTH, VILLAGE. BY ADVS. SRI.ADEEP ANWAR SRI.C.S.DIAS RESPONDENTS/RESPONDENTS IN A.S.NO.137/2007/DEFENDANTS IN O.S.NO.51/2004: -------------- 1. KARTHIAYANI, AGED ABOUT 64 YEARS, W/O.KUPPA PENGAN, THONNIKKA KARA, AIKKARANAD NORTH VILLAGE. 2. BENNY SEBASTIAN, AGED ABOUT 39 YEARS, S/O.SEBASTIAN, OLICKAL HOUSE, KINGINIMATTAM KARA, AIKKARANAD NORTH VILLAGE. 3. THULUVA, AGED ABOUT 74 YEARS, D/O.KUPPA, PATHIRAKOTTIL HOUSE, THONNIKKA KARA, AIKKARANAD NORTH VILLAGE. R2 BY ADVS. SRI.DINESH R.SHENOY SRI.LIJIN THAMBAN SRI.R.V.RAHUL THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **--------------------------------------** ## **R.S.A. No.828 of 2008** **-------------------------------------Dated this the 19[th] day of September, 2016** ## **JUDGMENT** Appellant is the plaintiff in O.S.No.51 of 2004 on the file of the Court of Munsiff, Kolencherry. The suit originally laid was one for fixation of boundary and prohibitory injunction. Later it was amended by incorporating a declaratory relief and also a relief for recovery of possession of plaint C schedule property on the strength of the plaintiff's title. 2. For the sake of convenience, the parties are hereinafter referred to as the plaintiff and defendants. 3. Short facts necessary for disposal of the case are as follows:Plaint A schedule property was purchased by the plaintiff as per Ext.A1 sale deed. A portion of the property is situate in re-survey No.121/19. It was purchased from Kunjipennu, whose father Kuppa was the original owner of the property. After Kuppa's death, Kunjipennu instituted O.S.No.82 of 1986 before the Munsiff's Court, Kolencherry seeking partition of his properties. The suit was decreed and ultimately a final decree was passed. As per the execution proceedings, the property was delivered to Kunjipennu. While enjoying the plaint A schedule property, she sold it to the plaintiff as per Ext.A1. The defendants attempted to 2 RSA No.828/2008 trespass upon the property and tamper with the boundary. Hence the suit was filed. Later it was amended as stated above. 4. 1[st] defendant opposed the suit contending that the plaintiff has no ownership or possession over the plaint A schedule. He disputed the title of plaint A schedule property. According to the 1[st] defendant, plaint A schedule property never belonged to the plaintiff or his predecessor and it was part of a property purchased by her as per Ext.B2 purchase certificate. It is also contended that at no point of time the 1[st] defendant destroyed the western boundary of plaint A schedule property. 5. 2[nd] defendant also opposed the plaint contending that the plaintiff has no right over the properties shown in the plaint schedule. Identity of the properties are also disputed by the defendants. 3[rd] defendant also resisted the suit by contending that the plaintiff is not entitled to get any of the reliefs. 6. The trial court framed issues. But, disturbingly no issue regarding identity of the property was raised by the trial court. 7. The trial court found that the property delivered to the plaintiff in O.S.No.82 of 1986 in the final decree proceedings was a different one than the property shown in the decree schedule. For this reasoning, it was found that the plaintiff failed to establish his title over the property and therefore the suit was dismissed. 3 RSA No.828/2008 8. The lower appellate court concurred with the findings of the trial court and the appeal was also dismissed. 9. Heard the learned counsel for the appellant/plaintiff and the contesting respondents/defendants. 10. Learned counsel for the appellant contended that the reasonings of the trial court and that of the lower appellate court are totally erroneous. He took me through various portions of the judgment to contend that the court below without any justifiable reason found that the property comprised in old survey No.448/1-2 is the property to which the plaintiff is entitled. According to him, the mistake in the survey number shall not be a reason to deny the valuable legal rights of the plaintiff's over the plaint schedule property. It is also contended that the boundaries in Ext.A1 tally with the boundary description in Exts.A2 and A4. Well settled legal proposition that in case of a conflict between survey numbers and boundaries, the latter will prevail over the former was not taken note of by the courts below. It is well settled that for identifying a property, the features more stable and decisive than a feature which is likely to be mistaken by the parties will have to be preferred. This is declared by a catena of decisions. Unless otherwise established, the boundaries should prevail over other features like survey numbers, extent, etc. But, in this case courts below did not give much importance to the description of boundaries to identify the property. 4 RSA No.828/2008 11. Another contention raised by the learned counsel for the appellant is that the trial court without framing an issue regarding identity of the property decided the point, that too without considering the relevant factors. It is the responsibility of the court to frame issues arising out of the pleadings. In this case, the defendants have specifically denied the identity of the properties shown in the plaint schedule. In spite of raising specific contentions, the trial court failed to frame an issue regarding the identity and ultimately the suit was dismissed finding that the plaintiff failed to identify the property. This has worked out injustice to the plaintiff. 12. Schedule to Ext.A1 title deed would show that the property purchased by the plaintiff falls within old survey No.452/1-2. Admittedly 121/19 and 121/17 are the corresponding new survey numbers. However, there is no evidence to establish what was the extent of property comprised in old survey No.448/1-2. This assumes importance for the reason that in A schedule to the final decree what is mentioned is the old survey No.448/1- 2. The property sought to be partitioned in O.S.No.82 of 1986 was 30 cents out of 63 cents included in the above survey number. For holding that the mistake of survey number shown in the decree might have been corrected at the time of delivery proceedings, there is no material available on record. Since this is a suit for declaration of title and recovery of possession on the strength of title, it goes without saying that it is incumbent upon to the plaintiff to show that he has title over the property 5 RSA No.828/2008 claimed in the plaint. In the absence of any evidence regarding the extent of property comprised in old survey No.448/1-2, the learned counsel for the defendants contended that the plaintiff is not entitled to get any relief. It is true that the plaintiff should have either examined the commissioner, who submitted the final decree plan and report, or should have adduced evidence to convince the court that he derived title in respect of the properties comprised in survey No.452/1-2. 13. Learned counsel for the appellant contended that the 1[st] defendant is estopped from raising contentions against the suit for the following reasons. Firstly, her husband was a party to O.S.No.82 of 1986 and on his death, whatever right that he acquired devolved on the 1[st] defendant. Secondly, he was physically present when Exts.A2 and A3 delivery accounts were prepared and the property was delivered. This is seen from the Amin's report. It is therefore contended that the rule of estoppal by conduct works against the 1[st] defendant and therefore, she is precluded from challenging the genuineness of the delivery accounts. This contention also deserves to be examined in the light of other circumstances. 14. It is also contended by the learned counsel that Ext.B2 purchase certificate is not binding on the plaintiff. That apart, it was purchased in the year 2002, much after the death of 1[st] defendant's husband. Had he got any kudikidappa right over the property, he would 6 RSA No.828/2008 have certainly set up that contention in the partition suit or at least he would have resisted the delivery on the basis of kudikidappa right, if any. 1[st] defendant's husband having not done so, she cannot claim a better right than that of her husband. It is also the contention of the plaintiff that Ext.B2 purchase certificate was fraudulently obtained to defeat his interest. Reliance is also placed on the decision rendered by this Court in **Muhammad Haji v. Kunhunni Nair (1993 (1) KLT 227)** to contend that a purchase certificate which is obtained by perpetrating fraud is a nullity. 15. Learned counsel for the contesting defendants contended that this being a suit for declaration of title and recovery of possession, the plaintiff can only stand on his own title and he cannot take advantage of the weakness of the defendants' case. Crucial points to be established are that the description of plaint schedule in O.S.No.82 of 1986 was incorrect and the property partitioned was included in survey No.452/1-2 and also that even if the property was wrongly described, as in survey No.448/1-2, it had taken in more than 30 cents shown in O.S.No.82 of 1986. That apart, identity of the property delivered can be established by documentary as well as oral evidence. In the absence of establishing the entire facts, it may no be proper for this Court in a second appeal to reverse the concurrent findings of the courts below entered on facts. 16. I am fully aware of the principle that remand of a case will pose difficulties in many ways to the parties. However, a suit on title based on 7 RSA No.828/2008 an earlier court proceedings shall not be thrown out at the threshold without affording an opportunity to establish the identity of the properties. For that purpose, I deem it necessary to remand the case to the lower appellate court for proper disposal. In the result, the appeal is allowed. The impugned judgments and decrees passed by the courts below are set aside. The matter is remitted back to the lower appellate court for affording the plaintiff an opportunity to take steps to identify the property and to establish that the property situate in old survey No.452/1-2 corresponds to 121/19-17. The parties are permitted to adduce evidence both oral and documentary invoking Order XLI Rule 27 of the Code of Civil Procedure, 1908 before the lower appellate court. The lower appellate court shall, after affording the parties a reasonable opportunity, dispose of the case within a period of six months from the date of receipt of a copy of this judgment. Parties shall appear before the lower appellate court on 17.10.2016. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks**