N.S.S.KARAYOGAM v. JOSEPH LUCKA and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941** **RSA.No.1304 OF 2010** **AGAINST THE JUDGMENT AND DECREE DATED 09-09-2010 IN AS 168/2009 OF DISTRICT COURT, KOTTAYAM** **AGAINST THE JUDGMENT AND DECREE DATED 31-08-1995 IN OS 612/1990 OF ADDITIONAL MUNSIFF COURT, KOTTAYAM** ## **APPELLANT/APPELLANT/1ST DEFENDANT:** **N.S.S.KARAYOGAM NO.315, KANJIRAMATTOM, ANICKADU, REPRESENTED BY PRESIDENT,, N.S.S.KARAYOGAM, ANICKADU.** **BY ADVS. SRI.M.NARENDRA KUMAR SMT.LAYA SIMON SMT.LEENA KRISHNAN** ## **RESPONDENTS/RESPODENTS/PLAINTIFFS:** **1 JOSEPH LUCKA, AGED 49 YEARS, S/O.VARKEY LUKA, RESIDING AT MANIYAMGATTU PARAYIL, ANICKADU VADAKKUM BHAGOM KARA, CHENGALAM EAST VILLAGE. PIN 688 437** - ***2 MAMMY LUCKA, D/O.VARKEY LUKA, RESIDING AT MANIYAMGATTU PARAYIL, ANICKADU VADAKKUM BHAGOM KARA, CHENGALAM EAST VILLAGE. PIN 688 437 (DELETED)** ***THE SECOND RESPONDENT IS REMOVED FROM THE PARTY ARRAY OF THE APPEAL AT THE RISK OF APPELLANT AS PER ORDER DATED 24/06/2019 IN I.A.NO.1/2019** - **#3 MARIYAM LUCKA, RESIDING AT MANIYAMGATTU PARAYIL, ANICKADU VADAKKUM BHAGOM KARA, CHENGALAM EAST VILLAGE. PIN-688 437 (DIED)** - **4 MONIKA LUCKA, RESIDING AT MANIYAMGATTU PARAYIL, ANICKADU VADAKKUM BHAGOM, KARA, CHENGALAM EAST VILLAGE. PIN- 688 437** ## **RSA.No.1304 OF 2010 2** **5 ALEY LUCKA, RESIDING AT MANIYAMGATTU PARAYIL, ANICKADU VADAKKUM BHAGOM, KARA, CHENGALAM EAST VILLAGE. -DO-** **#6 PENNAMMA LUCKA, RESIDING AT MANIYAMGATTU PARAYIL, ANICKADU VADAKKUM BHAGOM, KARA, CHENGALAM EAST VILLAGE. (DO) (DIED)** **#IT IS RECORED THAT THE LEGAL HEIRS OF DECEASED R3 AND R6 ARE NOT NECESSARY OR PROPER PARTIES IN THE APPEAL AS PER ORDER DATED 24/06/2019 IN I.A.NO.01/2019 IN R.S.A.NO.1304/2010.** **7 THEYYAMMA LUCKA, RESIDING AT MANIYAMGATTU PARAYIL, ANICKADU VADAKKUM BHAGOM KARA, CHENGALAM EAST VILLAGE. -DO-** **R4 & R1 BY ADVS. SRI.R.PARTHASARATHY SMT.SEEMA** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No.1304 OF 2010 3** ## **JUDGMENT** A suit for declaration of title, recovery of possession and mandatory injunction decreed by both the courts below, against which the first defendant came up with this appeal. 2. The following questions were framed by this court for adjudication: “i)Whether the courts have correctly applied the principle of law governing 'falsa demonstratio' in identifying plaint schedule properties covered by Ext.A2 and Ext.B1 ? ii) Whether the courts below are justified in rejecting the report of the Commissioner regarding identification of the properties ? iii) Whether the courts below are justified in granting the declaration of title after rejecting the plan and report submitted by the Advocate Commissioner ?” 3. The dispute centered around item No.2 property. A large extent of 3 acres 32 cents of **RSA.No.1304 OF 2010 4** property originally obtained by the plaintiff under Ext.A2 deed of the year 1950 out of a large extent of 6 acres 64 cents and the same is scheduled in the plaint as item No.1. The allegation is that the defendant encroached upon plaint schedule item No.2 property having an extent of 20 cents and reduced into their possession and installed a deity therein and hence a suit for declaration of title and recovery of possession being part of the property covered by Ext.A2 document. 4. The defendants in turn contested the suit, _inter alia_ contending that they had obtained 50 cents of property under Ext.B1 deed of the year 1950. There is a pond therein along with a well. It is lying adjoining to the remaining property of the defendant a temple property; a private Devaswam and hence disputed the title and right claimed by the plaintiff over the said property. It is contended that the said 20 cents will form part of the large extent of the 50 cents covered by Ext.B1 document. 5. A survey commission was issued who in turn ## **RSA.No.1304 OF 2010 5** prepared Ext.C2 report, C2(a) plan and C2(b) plan, which was accepted by both the court below for decreeing the suit declaring right, title and interest of plaintiff over the same, recovery of possession and consequential relief by way of mandatory injunction directing the defendants to remove the idol installed over the property, which is under challenge in this appeal. 6. The plaint as item NO.2 property is located by the commissioner in Ext.C2(a) and C2(b) plan, out of the property comprised in old survey No.242/4. Ext.A2 is the title deed of the plaintiff dated 20.03.1950. The plaintiff is having no property in Sy.No.242/4 as per their document of title. Their property is situated in Sy.No.253/1 being the southern half of 6 acres 64 cents. There is no pleading in the plaint regarding any mistake crept in the description of property in the document of title, Ext.A2 regarding the survey number of the property or its identification. No evidence was adduced in that behalf. The Commissioner who appointed had carved out item No.2 ## **RSA.No.1304 OF 2010 6** plaint schedule property from Sy.No.242/4 instead of from Sy.No.253/1. Both the courts below accepted the same without having sufficient reason. On the other hand, the learned counsel by taking advantage of the legal position settled in _**Haji**_ ## _**Adam Sait Dharmasthapanam v. Hameed (1985 KLT 169)**_ submitted that both the parties proceeded with the suit fully knowing the suit and identity and hence they are bound by the decision. As discussed earlier,no case of any mistake in the survey number or in its identity brought out by the plaintiff. In the document of title and what is pleaded in the plaint would show that their property is situated in Sy.No.253/1 and not in Sy.No.242/4. It is the mischief committed by the Commissioner along with the surveyor that without having such a case from the plaintiff. The legal proposition laid down in ## _**Kumaran Krishnan v. Ulahannan Mathai ( 1957 KLT 42)**_ will not assist the case of the plaintiff as what is involved therein is not the identity of the property which is the subject matter of a mortgage, but the difference in the survey number when it was ## **RSA.No.1304 OF 2010 7** sought to be redeemed. A single compact plot sought to be redeemed in that suit which is the subject of a mortgage and it has got its own identity being a landed property which is a subject of a mortgage. Here the issue is different. Instead of property covered by Ext.A2, the plaintiff is claiming some other property lying in the adjoining survey number. A subsequent grant of a purchase certificate obtained based on Ext.A2 itself is not sufficient to claim any other property rather than the one covered by Ext.A2. The Commissioner was examined as PW5 and the surveyor was examined as PW7. Strange enough when the question was put up with respect to the reason why the item No.2 schedule property was located out of the property comprised in survey No.242/4 instead of 253/1, an answer was given that it was located based on the possession and boundary marks as well as survey records and Litho plan. The document produced in that behalf are Exts.A4 and A5 Litho plans and Ext.A9 resurvey plan. Going by Ext.A4 and A5 Litho plan, it is clear that there is property available ## **RSA.No.1304 OF 2010 8** in Sy.No.253/1. Ext.A9 Re.Survey plan shows that the corresponding old survey number of resurvey number 199/1 is 242/4. It is out of that property, item No.2 schedule was located by the commissioner. The mischief done by the commissioner along with the surveyor by preparing Exts.C2(a) and C2(b) is well evident. It is settled law that when there is mistake in the survey number, the boundary will prevail over, but the properties were located based on possession by the commissioner. The non employment of old survey plan and co-relation statement in reference to the re-survey plan would virtually make Ext.C2(a) and C2(b) plan unacceptable. The suit fought up to this court and as such, I am of the view that it is fit and proper to afford an opportunity to the plaintiff to issue a fresh survey commission, so as to locate the plaint schedule property based on the old survey plan, re-survey plan and co-relation statement. For that purpose, the decree and judgment of both the courts below are hereby set aside and the matter is remanded back to the trial court for **RSA.No.1304 OF 2010 9** fresh disposal untrammeled by any of the observations made by this court. The parties are at liberty to amend their pleading, if they desire so. The parties shall appear before the trial court on 04/11/2019. The appeal is allowed in part accordingly. No costs. ## **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** msp //TRUE COPY// P.A. TO JUDGE