P.N. Sreedharan and K.M. Santhamma v. Purushothaman and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 6TH DAY OF DECEMBER 2013/15TH AGRAHAYANA, 1935** ## **RSA.No. 442 of 2013 ()** **----------------------------------AGAINST THE JUDGMENT IN AS 53/2006 of ADDL.DISTRICT COURT,PATHANAMTHITTA DATED 28-09-2012** ## **AGAINST THE JUDGMENT IN OS 247/1999 of MUNSIFF COURT, RANNI DATED 23.12.2005** ## **APPELLANT(S)/APPELLANTS/PLAINTIFFS:** **--------------------------------------------------------------------** **1. P.N. SREEDHARAN, AGED 65 YEARS S/O.NARAYANAN, PULICKAL HOUSE, KOCHUKOICKAL KUMARAMPEROOR, VADAKKEKARA MURI, CHITTAR-SEETHATHODU RANNY.** **2. K.M.SANTHAMMA, AGED 59 YEARS W/O.P.N.SREEDHARAN, PULICKAL HOUSE, KOCHUKOICKAL KUMARAMPEROOR, VADAKKEKARA MURI, CHITTAR-SEETHATHODU RANNY.** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENT(S)/RESPONDENTS/RESPONDENTS/DEFENDANTS(DIED):** - **--------------------------------------------------------------------------------------------------------------** **1. PURUSHOTHAMAN (DIED) S/O.MADHAVAN, OLICKAL VEEDU, KOCHUKOICKAL KUMARAMPEROOR, VADAKKEKARA MURI, CHITTAR-SEETHATHODU RANNY** **2. THANKAMMA PURUSHOTHAMAN, AGED 75 YEARS OLICKAL VEEDU, KOCHUKOICKAL, KUMARAMPEROOR VADAKKEKARA MURI, CHITTAR-SEETHATHODU, RANNY.-689667** **3. CHANDRA MOHANAN, AGED 55 YEARS OLICKAL VEEDU, KOCHUKOICKAL, KUMARAMPEROOR VADAKKEKARA MURI, CHITTAR-SEETHATHODU, RANNY.-689667** **4. SAJEEVAN PURUSHOTHAMAN, AGED 49 YEARS OLICKAL VEEDU, KOCHUKOICKAL, KUMARAMPEROOR VADAKKEKARA MURI, CHITTAR-SEETHATHODU, RANNY-689667.** **5. SHAJI PURUSHOTHAMAN, AGED 43 YEARS OLICKAL VEEDU, KOCHUKOICKAL, KUMARAMPEROOR VADAKKEKARA MURI, CHITTAR-SEETHATHODU, RANNY-689667** ## **6. SOBHA PURUSHOTHAMAN, AGED 52 YEARS** - **OLICKAL VEEDU, KOCHUKOICKAL, KUMARAMPEROORVADAKKEKARA MURI, CHITTAR-SEETHATHODU, RANNY.-689667** **7. SUDHA PURUSHOTHAMAN, AGED 46 YEARS OLICKAL VEEDU, KOCHUKOICKAL, KUMARAMPEROOR VADAKKEKARA MURI, CHITTAR-SEETHATHODU, RANNY.-689667** **8. MINI PURUSHOTHAMAN, AGED 40 YEARS OLICKAL VEEDU, KOCHUKOICKAL, KUMARAMPEROOR VADAKKEKARA MURI, CHITTAR-SEETHATHODU, RANNY.-689667** **R2-R8 BY ADV. SRI.AJEESH K.SASI** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J.** ========================== **R.S.A. No. 442 of 2013** =================================== **Dated this the 6[th] day of December, 2013** ## **JUDGMENT** Plaintiffs are the appellants. The suit was for fixation of boundary and for permanent prohibitory injunction. Plaintiffs contend that they are in possession of 1 acre 28 cents of land comprised in Sy.No.929/1/1. Its eastern boundary is shown as the property of Ashariparambu Narayanan, southern boundary is a Thodu, western boundary is the property of the defendant and the northern boundary is shown as road. It is contended that this property along with other extent originally belonged to deceased defendant Purushothaman. He executed an assignment deed in favour of plaintiffs in respect of 67 cents in 1980 and another 61 cents in 1983. Thus making a total of 1 acre 28 cents of land shown in the plaint schedule as per Exts.A1 and A2 respectively. Plaintiffs claim title on the -: 2 :- ## R.S.A.No.442/2013 strength of Exts.A1 and A2 assignment deeds executed by the deceased defendant Purushothaman on 23/10/1980 and 08/09/1983. The recitals in Exts.A1 and A2 would show that the defendant had obtained right over the said property along with other extent as per the Pattayam No.3389/1966. In paragraph 3 of the plaint, it was stated that the property obtained assignment by the plaintiffs as per Exts.A1 and A2 had well-defined boundaries except on the western side and that the parties were in absolute possession of the property covered by Exts.A1 and A2. 2. It was stated by the deceased defendant in the written statement that the total extent of the property obtained assignment as per the proceedings mentioned above was 1 acre 80.310 cents. Thus according to the defendants, excluding the property covered by Exts.A1 and A2 the defendant is in possession of the remaining extent. Defendant died subsequently. His legal representatives were impleaded as the supplemental defendants. The -: 3 :- ## R.S.A.No.442/2013 trespass alleged was denied. It was further contended that at the time of widening of the road, 9 cents of land from out of the property obtained assignment under Exts.A1 and A2 was given or surrendered. As such the contention that plaintiffs were in possession of the entire 1 and 28 cents as stated in the plaint was denied. 3. PW1 to PW4 were examined and Exts.A1 to A3 were marked on the side of the plaintiffs. DW1 and DW2 were examined and Exts.C1 to C3 were marked. The trial court found that the boundary line shown in Ext.C3 rough sketch cannot be accepted as correct. It was also found that the plaint schedule property was not properly identified and so the plaintiff is not entitled to get a decree for injunction or for fixation of boundary. The lower appellate court concurred with the view taken by the trial court and dismissed the appeal. 4. The learned counsel for the appellants has vehemently argued that the courts below should have found -: 4 :- ## R.S.A.No.442/2013 that as per Exts.A1 and A2, plaintiffs had obtained title to the property and since Exts.A1 and A2 were executed by the deceased defendant, the plaintiffs' title cannot be denied and if so, the plaintiffs should have been granted a decree for fixation of boundary and for injunction. It was also contended that the defendants did not produce Pattayam obtained by the deceased defendant and there was no request on the part of the defendants to measure the property covered by that Pattayam. 5. It is vehemently argued by the learned counsel for the appellant that there was a road in existence on the northern boundary property as evident from the boundaries shown in Exts.A1 and A2 and so the view taken by the courts below that land must have been given for widening the road is not correct. It is also argued that the road is situated on a higher level and so it must have been the state of affairs as it existed on the dates of Exts.A1 and A2 and if so, the findings entered by the courts below that land was -: 5 :- R.S.A.No.442/2013 taken for the purpose of widening road cannot be accepted at all. 6. PW3 is the advocate commissioner, who prepared Exts.C1 and C2. PW4 is the Taluk Surveyor who was stated to have assisted PW3 to measure the property and to prepare Ext.C3 plan. According to PW3, as per Pattayam No.3389/1966 given to the deceased defendant, the extent assigned was 1 acre 80.310 cents. It is vehemently argued by the learned counsel for the appellants that even according to the defendants, only 9 cents of land from out of the plaintiffs' property was taken for the formation of the road whereas PW3, commissioner says that 17 cents of land had been taken for the road and so that itself will show that the property was not properly identified. 7. It is pertinent to note that it is for the plaintiffs to prove which are the actual boundaries shown in Exts.A1 and A2 and what was the extent of land from out of Exts.A1 and A2 taken for widening of the road. As per Ext.C3 plan, -: 6 :- R.S.A.No.442/2013 Item No.1 was seen abutting the northern boundary road which had a length of 35 meters; the length of the road abutting Item No.2 was 49.7 meters. The average width of the road was 8 meters. So much so, the contention raised by the appellants that land was not taken for the purpose of widening the road cannot be sustained at all. 8. Simply because the defendant in the written statement stated that only 9 cents of land was taken for widening the road that cannot absolve the duty of the plaintiffs to prove what actually was the land taken from the plaintiffs' property for the purpose of widening of the road. The evidence on record is clear, cogent and convincing that the road was widened. If so, plaintiffs cannot get a decree for injunction in respect of the entire 1 acre 28 cents shown in the schedule to the plaint. 9. The learned counsel for the appellants would submit that if the identification of the property done by the advocate commissioner is found unacceptable, then it is -: 7 :- ## R.S.A.No.442/2013 only just and proper that the suit is remanded to the trial court for proper measurement and identification of the property for which he has relied upon the decision of this court in **Venugopalan Nair v. Saraswathy Amma (2013 (4) KLJ 511)** . The learned counsel has also relied upon the decision of Division Bench of this court in **State v. Kodakkat Pocker and Others (1987 (1) KLT 714)** in support of the submission that if the court finds reason to hold that the report and plan submitted by the commissioner are not helpful for proper adjudication of the issue it is always open to the court to analyse the commissioner's report and call for fresh report and that can be done even if the contesting party did not choose to have the report set aside. Therefore, according to the learned counsel, if the courts below were of the view that reports and plan were unacceptable, a fresh report and plan should have been called for but that was not done and so the appellant should not be denied an opportunity to get a fresh -: 8 :- ## R.S.A.No.442/2013 plan and report and for that purpose this court will be justified in ordering a remand of the suit to the trial court. This submission is stoutly resisted by the learned counsel for respondents pointing out that the case put forward by the plaintiffs is totally unacceptable. The appellants did not even admit that a portion of the property was taken for widening the road. 10. The learned counsel for the appellants has also relied upon the decision of this court in **Joy Cherian v. George Cherian (2009 (2) KHC 969 = ILR 2009(3) Ker.413)** that it is open to the appellate court to appoint a commissioner by itself after setting aside the earlier report or to remand the case to the trial court for fair and proper disposal of the suit. The learned counsel for the respondents has relied upon the decision in **Anjil Vellachi** **and others v. Mamuni Bhaskaran alias Vattayil Bhaskaran (2009(3) KHC 728)** , where it was held that the suit for fixation of boundary cannot be a shortcut or -: 9 :- R.S.A.No.442/2013 substitute for recovery of possession. In this case, plaintiffs have actually filed an amendment petition seeking recovery of possession of the property alleged to be in possession of the defendants. That was disallowed by the trial court. The lower appellate court has also considered the amendment petition and held in the light of the decision in **Raj Kumar Gurawara(dead through L.Rs v. S.K.Sarwagi & Company Pvt.Ltd (2008 (14) SCC 364),** that as the amendment petition was filed long after the commencement of the trial and as there was no sufficient reason for not filing the amendment petition prior to the commencement of the trial, the petition is to be dismissed. Hence, it was dismissed. 11. It is vehemently argued by the learned counsel for the appellants that since an amendment petition was filed, it is just and proper that the suit is remanded to the trial court to afford an opportunity to appellants to get a proper commissioner's report and plan. It is pointed out by the -: 10 :- ## R.S.A.No.442/2013 learned counsel for the respondents that it is a case where from the commissioner's report itself it was clear that the commissioner did not identify 1 acre 80.310 cents, but instead, measured only 1 acre 70 cents and thereafter commissioner proceeded on the premise that the extent of the plot EBFGCLKJPE is only 1 acre 70 cents as shown in Ext.C2 sketch. The extent of the plot CLKSIHGC (road portion) was shown as 17 cents. If the extent of the remaining property was 1 acre 63 cents, then including 17 cents which was taken for road the total extent would be 1 acre 80 cents. If so, the observation made by the advocate commissioner in Ext.C2 that the extent of the property is 1 acre 70 cents may not be correct. Plaintiffs were well aware of the incongruity in the report submitted by the commissioner. It was long thereafter the amendment petition was filed. 12. The only other point that survives for consideration is whether the matter should be remanded to ## -: 11 :- ## R.S.A.No.442/2013 the trial court so as to enable the plaintiffs to take out a fresh commission and also whether the amendment petition should be allowed. The suit was filed in the year 1999. Having suffered a verdict concurrently at the hands of the courts below, it will not be proper to order remand of the case. If the plaintiffs are so advised they can file a suit for recovery of possession on the strength of the title, if any, of the portion of the property which was alleged to have been trespassed upon by the defendants. For that purpose, plaintiffs can also seek for fixation of boundary based on Exts.A1 and A2. In the result, this RSA is dismissed, but with the liberty to the appellants to file a suit for recovery of possession on the strength of title, if they are otherwise legally entitled to. Sd/- ## **N.K.BALAKRISHNAN, JUDGE** // True copy // PA to Judge das