## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN**
**TUESDAY, THE 12TH DAY OF NOVEMBER 2013/21ST KARTHIKA, 1935**
**RSA.No. 774 of 2013 () ----------------------AS 56/2003 of SUB COURT, SULTHAN BATHERY OS 129/1995 of MUNSIFF MAGISTRATE COURT, MANANTHAVADY**
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**APPELLANT(S)/APPELLANT IN APPEAL/PLAINTIFF IN THE SUIT :-**
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**P.T.KRISHNAN CHETTY, S/O.THMMAPPAN CHETTY, AGED 85 YEARS, MUKUNDA MANDIRAM, THIRUNELLY AMSOM, DESOM MANANTHAVADY TALUK, WAYANAD DISTRICT.**
**BY ADVS.SRI.K.M.FIROZ**
**SMT.M.SHAJNA**
**RESPONDENT(S)/RESPONDENTS IN APPEAL/DEFENDANTS IN THE SUIT :-**
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**1. A.V.KRISHNAN CHETTY, AGED ABOUT 67 YEARS RESIDING AT THAZHE VAKERY, THIRUNELLY AMSOM, DESOM MANANTHAVADY TALUK-670645.**
**2. ASHOKAN, S/O.A.V.KRISHNAN CHETTY, AGED ABOUT 37 YEARS, RESIDING AT THAZHE VAKERY THIRUNELLY AMSOM, DESOM, MANANTHAVADY TALUK-670645.**
**BY ADV. SRI.M.P.ASHOK KUMAR**
**SRI.P.C.GOPINATH**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**jvt**
## **N.K.BALAKRISHNAN, J.**
**............................................ R.S.A. No. 774 of 2013 ............................................ Dated: 12[th] Day of November, 2013**
## **JUDGMENT**
The plaintiff is the appellant. His suit was for recovery of possession of the plaint B schedule property measuring 3 ½ cents. The suit was dismissed by the trial Court and it was confirmed by the appellate Court.
2. According to the plaintiff he has got title in respect of 1.65 acres of property comprised in R.S.No. 127/2. According to him, he had obtained 2.15 acres of land from out of which 50 cents was sold by him to the defendant and so he has got 1.65 acres. Though it was contended that he had obtained purchase certificate in respect of the said property, that was not produced. However, it was not seriously disputed that the plaintiff had obtained purchase certificate but the dispute is with regard to the identity and extent of the land.
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3. The Commissioner measured the property. Ext. C3 sketch shows that the property held by the plaintiff measures only 1.55 acres. Though as per an arithmetical calculation, it may appear that the plaintiff is entitled to have 1.65 acres, there is no convincing evidence to show that he had actually obtained 1.65 acres. According to the plaintiff, one Vellukutty was having 3 acres of land from whom he had obtained lease of 2.15 acres. There is no document to show that Vellukutty was having 3 acres or that the plaintiff had obtained 2.15 acres. Of course, in the written statement it was admitted that it was from out of 2.15 Acres 50 cents was sold to the defendant. Even if it is assumed that in the document the extent was shown as 2.15 acres, that does not mean that on actual measurement, the property available is or should be 2.15 acres.
4. There is no dispute regarding the fact that the small plot shown as Plot C in Exts. C3 plan is in the
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possession of the defendant. It was reported by the Commissioner that plot B which is the property sought to be recovered by the plaintiff and plot C are lying contiguously without any separating boundary. The lie and position of the property did indicate that plots B and C were held by one and the same person. Since Plot C was admittedly in the possession of the defendants it will certainly prove that plot B was also part of the property held by the defendants.
5. According to the plaintiff, the defendant trespassed into the property in 1995. It was also contended that a shed was constructed by the defendant. Amendment petition was filed only in 2002 and so the prayer for mandatory injunction for removal of that shed cannot be allowed, it was contended by the defendant. It was found that the boundaries of the plaint A schedule property do not reconcile with the boundaries which were actually noted by the Advocate Commissioner. Even if it is assumed
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that non-amendment of the boundaries of the plaint schedule property may not disentitle the plaintiff to get the relief, if he/she is otherwise entitled to, the fact that the plaintiff was not at all aware of the actual boundaries of the property held by him will go a long way to hold that the plaintiff was not sure as to the actual extent of the property held by him. If the arithmetical calculation is to be accepted the plaintiff must get 10 cents of land and not 3 ½ cents which is the extent of plot B.
6. The Commissioner could find that there is a hut in plot B . There was a foundation in that property which at the time of the first inspection was seen to be about 1 ½ years old. It was contended by the plaintiff that the number plate or board which was there, fixed on the shed which was originally situated in the C schedule property, was taken and fixed on the shed now seen in the B schedule property. Learned counsel for the appellant has vehemently argued that the courts below were not justified
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in holding that the plaintiff has not proved title since the admission contained in the written statement is sufficient to hold that the plaintiff has obtained title to an extent of 1.65 Acres. It is further submitted that 10 cents of land was already given to the Panchayath for digging a well. There is a specific recital in the description column in Ext.A1 that 1.65 Acres assigned to the plaintiff was excluding the well mentioned above. It is not stated that what was excluded is the well and the adjacent land measuring 10 cents. Therefore, it cannot be said that it was excluding 10 cents of land the plaintiff obtained 1.65 Acres. It was contended by the plaintiff that he was actually having 1.75 Acres and for that extent of land he was paying land revenue. That case was not accepted by the courts below.
7. It is also vehemently argued by the learned counsel for the appellant that the trial court was not justified in dismissing the application for amendment on the day the suit was dismissed. The amendment petition was
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filed in tune with the plan submitted by the Advocate Commissioner. It is true that the trial court could have allowed the amendment petition. But that will not in any way come to the rescue of the plaintiff/appellant, since the suit was dismissed not on the ground that the plaint was not amended. For the purpose of deciding the matter, the amendment petition filed by the plaintiff can be treated as allowed but still that will not help the plaintiff/appellant.
8. Learned counsel for the appellant has relied upon the decision of the Hon'ble Supreme Court in **State Bank of Hyderabad** v. **Town Municipal Council** [2007 (1) SCC 765] where it was held that there cannot be any doubt that the suit having been filed in the year 1998, proviso to Order VI Rule 17 of CPC shall not apply since the CPC (Amendment Act, 2002) came into force with effect from 1.7.2002. In this case also, the suit was filed in the year 1995 and so, proviso to Order VI Rule 17 has no application. But the fact remains that even if that amendment had been
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allowed that will not alter the position.
9. The boundaries shown in the plaint and in Ext.A1 do not tally with the boundaries of the suit property claimed by the plaintiff. According to the plaintiff, 'B' schedule forms part of 'A' schedule property. But it is pointed out by the learned counsel for the respondents that Ext.A1 and the plaint description would clearly show that the suit property is a 'Nilam' (paddy field). But the commissioner's report would make it clear that the disputed 3½ cents of land shown in the 'B' schedule is a dry land and not a wet land. There is also other observation made by the commissioner that 'B' schedule and 'C' schedule which is admittedly in the possession of the defendant are lying contiguously. Therefore, the fact that 'B' schedule property is not a paddy field and since there was no case that the property obtained by the plaintiff under Ext.A1 takes in not only the paddy filed but also a portion of the dry land, the contention that the plaintiff had obtained title over a small bit of land
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measuring 3½ cents which is a dry land cannot be sustained. The courts below have found that 'B' schedule property does not form part of 'A' schedule property and the plaintiff did not obtain title to the 'B' schedule property. It is vehemently argued by the learned counsel for the plaintiff that the defendants did not produce any document to show how they obtained right over the 'B' schedule property since the suit is for recovery of possession on the strength of title. The plaintiff cannot bank upon the non-production of the document by the defendants for getting recovery of possession. The incongruity in the case advanced by the plaintiff as has been delineated earlier did persuade the courts below to hold that the plaintiff could not prove his title as to the 'B' schedule property. Even in the plaint the northern boundary is shown as 'karasthalam' (dry land) which would also sufficiently indicate that the plaintiff had no title to that 'karasthalam' (dry land). 10. In Ext.C1 report it was observed by the
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commissioner that the property in the possession of the plaintiff is a paddy field and that a well is seen in the plaint schedule property. But the extent of the property which was left vacant for the well and the surroundings, though identifiable has to be measured to come to a proper finding regarding the extent. In the 2[nd] report Ext.C2, the northern boundary of the plaintiff's property was shown as the property in R.S.No.129 and the 'B' schedule property (shown as dry land). Admittedly, 'A' schedule property is a paddy filed.
11. It is not necessary to delve deep into those aspects. The courts below have analysed the evidence adduced on the side of the plaintiff and found that the plea raised by the plaintiff that he has got title to the plaint B schedule property is unacceptable. It is purely a question of fact. There was no misreading of evidence nor is it a case where any vital documentary or oral evidence was omitted to be considered by the courts below.
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12. There is no satisfactory evidence to show that the total extent of the property held by the plaintiff was 2.15 acres. Since admittedly the plaintiff had assigned 50 cents of land to the first defendant, he could be in possession of only the remaining extent. There is no legal infirmity in the appreciation of evidence or in the findings entered by the courts below. The evidence on record is not sufficient to hold that the plaintiff has got title to the B schedule property so as to get a decree for recovery of possession of the same.
No substantial question of law is involved, and hence, this Second Appeal is dismissed.
**Sd/N.K. Balakrishnan Judge.**
//True Copy//
P.A. To Judge
Ani/Jvt
