## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN**
**THURSDAY, THE 19TH DAY OF DECEMBER 2013/28TH AGRAHAYANA, 1935**
## **RSA.No. 637 of 2013 (A)**
## **-----------------------**
**AGAINST THE JUDGMENT IN AS 366/2009 of I ADDL.DISTRICT COURT, ERNAKULAM DATED 16-10-2012**
**AGAINST THE JUDGMENT IN OS 397/2008 of PRL.MUNSIFF COURT,ERNAKULAM DATED 07-04-2009**
## **APPELLANT/APPELLANT/1ST DEFENDANT:**
**---------------------------------------------------------------**
**PURUSHAN AGED 46 YEARS S/O.VASU, THITTEETHARA HOUSE, KUNDANNOOR DESOM MARADU.**
**BY ADV. SRI.B.KRISHNA MANI**
## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND 2ND DEFENDANT.:**
**-------------------------------------------------------------------------------------------------**
## **1. SAJU MOHAMMED AGED 41 YEARS**
**S/O.MOHAMMED KUNJU, SHANTHI VIEW, DOOR NO.26/2524 THEVARA KOCHI-13. REPRESENTED BY THE POWER OF ATTORNEY HOLDER A.MOHAMMED KUNJU S/O.ABOOBACKER KUNJU, SHANTHI VIEW, ELAMKULAM THEVARA, KANAYANNUR TALUK-682013.**
**2. T.K.RAVI, AGED 44 YEARS THETTEEETHARA HOUSE, KUNDANNOOR DESOM, MARADU ERNAKULAM DISTRICT-682304.**
**R1 BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA**
**R2 BY ADVS. SRI.ABRAHAM P.GEORGE SRI.K.VINODKUMAR (707/89) SMT.M.SANTHY**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**JJJ**
## **N.K. BALAKRISHNAN, J.**
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R.S.A. No. 637 of 2013
-----------------------------------------Dated this the 19[th] day of December, 2013
## **J U D G M E N T**
The 1[st] defendant is the appellant. The suit was filed for fixation of the southern boundary of plaint 'A' Schedule property, for recovery of possession of the 'B' schedule property, for mandatory injunction to demolish the 'C' schedule structure and also for a prohibitory injunction.
2. The trial court accepted the Commissioner's plan and held that the plaint 'A' schedule property is as shown in Ext.C1(a) plan. The decree for recovery of possession of plaint 'B' schedule was granted. Further, a mandatory injunction was granted directing the defendant to remove the 'C' schedule structure made in the 'B' schedule. Prohibitory injunction was granted restraining the defendants from trespassing into the plaint schedule property. The appeal filed against him was dismissed by the
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lower appellate court.
3. The following are the substantial questions of law framed in this case:
i. After having found that the properties of the plaintiff and first defendant are located in the same survey number and that the boundary between the properties can be determined only after measuring both the properties, was the lower appellate court justified in dismissing the appeal?
ii. After having found that in the plan submitted by the commissioner the property of the first defendant is not shown, whether the courts below are justified in decreeing the suit?
iii. Is it not clear that the property of the first defendant has not been measured and the boundaries can be fixed only after measuring the properties of the plaintiff and first defendant in terms of the old survey plan?
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- iv. Whether the courts below were justified in accepting the report and plan of the commissioner when serious objection has been raised by the first defendant to the same?
4. Ext.C1(a) is the plan prepared by the Advocate Commissioner with the help of the retired Surveyor. The plaint schedule property has been described in the plaint based on the title deed obtained by the plaintiff. The side measurements are shown in the document. The northern boundary line is the one starting from the north western corner towards east having a measurement of 34 metres. From that point there is a line towards south having a measurement of 13.2 metres. From there, there is another line having a measurement of 1.5 metres towards west, from where there is another line towards west having a measurement of 11.7 metres. From that point there is a line towards south having a measurement of 1.5 metres.
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From that point there is a line towards west slightly slanting towards south having a measurement of 24 metres. From that point there is a line towards north measuring 8.7 metres and from that to the original starting point the length of which is shown as 10.2 metres. The total extent, as aforesaid, when measured is stated to be 13.400 cents. Since all the side measurements are shown in the document so correctly and precisely, the identification of the plot with reference to that boundary should be preferred to since that is more definite and certain and is least likely to be confused. (vide **P. Velu and others v. P.Padmavathy Amma - ILR 1984 (1) Kerala page 30** )
5. In Ext.C1(a) plan the 'A' schedule property is shown as the one comprised in re-survey no.167/23 having a measurement of 3.81 Ares. The property measuring 1.62 Ares comprised in re-survey no. 167/24 is the 'B' schedule property held by the defendant. An extent of 525 square
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links, equivalent to 0.21 Ares, is shown as the 'C' schedule property. According to the plaintiff, the property alleged to be have been trespassed upon by the defendants is the one shown in the 'C' schedule. The trespassed area is shown to be 525 square links, which forms part of the 'B' schedule mentioned above.
6. The learned counsel for the appellant would submit that the identification done by the Surveyor is absolutely wrong and that it was done with a mischievous design, so as to take a portion of the defendants' property also as part of the plaint schedule property. The defendants property was not measured. It is stated that the plaintiff had purchased the property comprised in re-survey no. 167/24 from the defendants. But that does not mean that the plaintiff can claim something more or can have a different measurement.
7. It appears that it escaped the notice of the courts
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below that the northern boundary line measures 34 metres, starting from the north western corner, whereas the property that was measured and demarcated by the Commissioner in Ext.C1(a) plan shows the measurement as 32 metres; ie, the actual north-eastern point should have been 2 metres to the east of the point now shown by the Commissioner. If, from that point (ie if the 34 metres is taken from the north eastern corner point) 13.2 is drawn exactly towards south and another line from that point measuring 1.5 metres is drawn towards south, the south western point would be far away from the point now demarcated by the Advocate Commissioner. If from that point 11.7 metres is drawn towards west, the point now fixed by the Advocate Commissioner with the help of the Surveyor, cannot be the same. There would be vast difference. Even if it is assumed that from the north eastern corner if a line measuring 34 metres, being the northern
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boundary line, is drawn slightly towards west, the distance cannot be the same because the 1[st] line is a perpendicular one and other one can only be a hypotenuse. If, from that point a line is drawn towards south measuring 1.5 metres, that point also will not tally with the point now fixed by the Advocate Commissioner in Ext.C1(a) plan.
8. Going by the side measurements shown in the plan, if, from that point 24 metres is drawn towards west, slightly slanting towards south, it cannot be a line as now drawn by the Commissioner in Ext.C1(a) plan. If so, it is difficult to hold that the defendant has trespassed upon a portion of the 'A' schedule property shown in the plaint. These vital aspects were omitted to be considered by the courts below. The respondents could not convince me as to how the measurement of the plot shown in Ext.C1(a) would tally with the plaint measurements, incorporated in the plaint based on the title deed obtained by the plaintiff.
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9. As per the Commissioner's plan, the red line marked by the Surveyor should be the boundary line by which, a portion of the building belonging to the appellant may have to be demolished. This, according to the appellant, happened because of the wrong measurement taken by the Surveyor and the Advocate Commissioner without looking into the fact that the northern boundary line should be having a length of 34 metres and not 32 metres as shown in the plan.
10. It is vehemently argued by the learned counsel for the respondents that the property was measured by the Surveyor in the presence of the Advocate Commissioner based on the survey records and plan and so the measurements shown in the plan are absolutely correct. It is not the survey authorities who is to decide the right to property. The side measurements shown in the document and the measurements shown in the plan are found
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irreconcilable.
11. It is a case where the property has to be properly identified. The identification done by the Commissioner is seen to be not correct. Since certain vital aspects were ignored by the courts below, that itself will amount to substantial question of law and as such this court will be justified in interfering with the concurrent finding of fact.
12. It is stated on behalf of the respondents that the case is being conducted by the father of the plaintiffs and since the father is aged about 76 years, the case may be directed to be disposed of at the earliest. It is for the plaintiffs to take steps to have a proper measurement of the property showing therein the property having the side measurements as shown in the title deeds. The Commissioner will make the required notations/alphabets for all the points so as to have an easy reference to the different plots and survey points while writing the
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judgments. Learned Munsiff will ensure the same.
13. The trial court will also explore the possibility of having an amicable settlement.
In the result this appeal is allowed. The decree and judgment of the courts below are set aside. The suit is remanded to the trial court for fresh disposal in the light of what has been stated above. Both parties are given opportunity to adduce further evidence. The parties will mark their appearance before the trial court on **10.01.2014** . The trial court will make every endeavour to dispose of the suit at the earliest.
Sd/-
N.K. BALAKRISHNAN, JUDGE
//True Copy//
P.A. to Judge
jjj
