Rajamma and others v. K.N. Sankara Pillai and Lovely (RSA Nos.164 and 177 of 2006; CRP Nos.431 and 579 of 2004)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY,THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941** ## **RSA.No. 164 of 2006 (C)** **AGAINST THE JUDGMENT AND DECREE DATED 28-11-2005 IN AS NO. 132/2004 of SPECIAL COURT/ADDITIONAL DISTRICT COURT,THODUPUZHA** **AGAINST THE JUDGMENT AND DECREE DATED 28-08-2000 IN OS NO. 88/1997 of MUNSIFF'S COURT,THODUPUZHA** ## **- APPELLANTS IN R.S.A./APPELLANTS IN A.S. DEFENDANTS 1 TO 3 IN SUIT:** - **1 RAJAMMA, W/O.PEETHAMBARAN, ERAPPANAL, PURAPPUZHA VILLAGE, THODUPUZHA TALUK.** - **2 BIJU, S/O.DO. RESIDING IN DO. DO.** - **3 BINDU, D/O.DO. RESIDING IN DO. DO.** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.K.JAYAKUMAR (SENIOR ADVOCATE) SRI.P.B.KRISHNAN** **- - RESPONDENTS IN R.S.A. RESPONDENTS IN A.S. PLAINTIFF & DEFENDANT NO.4 IN SUIT:** **1 K.N.SANKARA PILLAI, KAVALAYIL HOUSE, PURAPPUZHA VILLAGE, THODUPUZHA TALUK.** R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 **2** **2 LOVELY, MULAYANIKUNNEL HOUSE, PURAPPUZHA VILLAGE, THODUPUZHA TALUK.** **R1 BY ADV.SRI.K.K.CHANDRAN PILLAI (SENIOR ADVOCATE) R2 BY ADV.SRI.HARISH R. MENON** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13.03.2019, ALONG WITH CRP.NO.431/2004,CRP.NO.579/2004 AND RSA.NO.177/2006, THE COURT ON 03.04.2019 DELIVERED THE FOLLOWING:** R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY,THE 03RD DAY OF APRIL 2019 / 20TH PHALGUNA, 1940** **RSA.No. 177 of 2006 (D)** **AGAINST THE JUDGMENT AND DECREE DATED 28-11-2005 IN AS NO. 23/2004 of SPECIAL COURT/ADDITIONAL DISTRICT COURT,THODUPUZHA** **AGAINST THE JUDGMENT AND DECREE DATED 28-08-2000 IN OS NO. 88/1997 of MUNSIFF'S COURT,THODUPUZHA** **- - APPELLANT IN R.S.A. APPELLANT IN A.S. DEFENDANT NO.4 IN SUIT:** **LOVELY SCARIA, MULAYANIKUNNEL HOUSE, PURAPPUZHA VILLAGE, THODUPUZHA TALUK.** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.K.JAYAKUMAR (SENIOR ADVOCATE) SRI.P.B.KRISHNAN** **- - RESPONDENTS IN R.S.A. RESPONDENTS IN A.S. PLAINTIFF & DEFENDANT NO.1 TO 3 SUIT:** **1 K.N.SANKARA PILLAI, KAVALAYIL HOUSE, PURAPPUZHA VILLAGE, THODUPUZHA TALUK.** R.S.A. Nos.164 and 177 of 2006 & 4 C.R.P.Nos.431 and 579 of 2004 **RAJAMMA, 2 W/O.PEETHAMBARAN, ERAPPANAL, PURAPPUZHA VILLAGE, THODUPUZHA TALUK. 3 BIJU, S/O.DO. RESIDING IN DO. DO. 4 BINDU, D/O. DO. RESIDING IN DO. DO.** **R2 TO R4 BY ADV.SRI.HARISH R. MENON R1 BY ADVS.SRI.K.K.CHANDRAN PILLAI(SENIOR ADVOCATE) SRI.R.V.SATHYAPRIYAN NAIR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13.03.2019, ALONG WITH CRP.NO.431/2004,CRP.NO.579/2004 AND RSA.NO.164/2006, THE COURT ON 03.04.2019 DELIVERED THE FOLLOWING:** R.S.A. Nos.164 and 177 of 2006 & 5 C.R.P.Nos.431 and 579 of 2004 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY,THE 03RD DAY OF APRIL 2019 / 20TH PHALGUNA, 1940** **CRP.No. 431 of 2004** **AGAINST THE JUDGMENT DATED 06-11-2003 IN CMA NO. 20/2002 of** ## **SUB COURT,THODUPUZHA** **AGAINST THE ORDER DATED 05-01-2002 IN IA NO.1662/2000 IN OS NO.88/1997 of MUNSIFF'S COURT,THODUPUZHA** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **LOVELY SCARIA, W/O.CHACKO, MULAYANIKUNNEL HOUSE, PURAPPUZHA VILLAGE, THODUPUZHA TALUK.** **BY ADVS. SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.K.JAYAKUMAR (SENIOR ADVOCATE) SRI.P.B.KRISHNAN** ## **RESPONDENTS/RESPONDENTS/COUNTER PETITIONER:** **1 K.N.SANKARA PILLAI, KAVALAYIL HOUSE, PURAPPUZHA P.O., THODUPUZHA TALUK.** R.S.A. Nos.164 and 177 of 2006 & 6 C.R.P.Nos.431 and 579 of 2004 **RAJAMMA, 2 ERAPPANAL HOUSE, PURAPPUZHA P.O., THODUPUZHA TALUK. 3 BIJU, ERAPPANAL HOUSE, PURAPPUZHA P.O., THODUPUZHA TALUK. 4 BINDU, ERAPPANAL HOUSE, PURAPPUZHA P.O., THODUPUZHA TALUK.** **R1 BY ADVS.SRI.K.K.CHANDRAN PILLAI SENIOR ADVOCATE) SRI.REJOY RAJ** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13.03.2019, ALONG WITH CRP.NO.579/2004, RSA.NO.164/2006, AND RSA NO.177/2006 THE COURT ON 03.04.2019 PASSED THE FOLLOWING:** R.S.A. Nos.164 and 177 of 2006 & 7 C.R.P.Nos.431 and 579 of 2004 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY,THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941 CRP.No. 579 of 2004** **AGAINST THE JUDGMENT DATED 06-11-2003 IN CMA NO. 21/2002 of** ## **SUB COURT,THODUPUZHA** **AGAINST THE ORDER DATED 05-01-2002 IN IA NO.1667/2000 IN OS NO.348/1998 of MUNSIFF'S COURT,THODUPUZHA** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **LOVELY SCARIA, W/O.CHACKO, MULAYANIKUNNEL HOUSE, PURAPPUZHA VILLAGE, THODUPUZHA TALUK.** **BY ADVS. SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.K.JAYAKUMAR (SENIOR ADVOCATE) SRI.P.B.KRISHNAN** ## **RESPONDENTS/RESPONDENTS/COUNTER PETITIONERS:** **1 K.N.SANKARA PILLAI, KAVALAYIL HOUSE, PURAPPUZHA P.O., THODUPUZHA TALUK.** **2 K.N.VIJAYAN, KAVALAYIL HOUSE, PURAPPUZHA P.O., THODUPUZHA TALUK.** R.S.A. Nos.164 and 177 of 2006 & 8 C.R.P.Nos.431 and 579 of 2004 |**3**|**RAJAMMA,**<br>**KAVALAYIL HOUSE,**| |---|---| ||**PURAPPUZHA P.O.,**| ||**THODUPUZHA TALUK.**| |**4**|**RAMANI,**| ||**KAVALAYIL HOUSE,**| ||**PURAPPUZHA P.O.,**| ||**THODUPUZHA TALUK.**| |**5**|**SATHI DEVI,**| ||**KAVALAYIL HOUSE,**| ||**PURAPPUZHA P.O.,**| ||**THODUPUZHA TALUK.**| **BY ADVS.SRI.K.K.CHANDRAN PILLAI (SENIOR ADVOCATE) SRI.REJOY RAJ** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13.03.2019, ALONG WITH CRP.NO.431/2004, RSA.NO.164/2006, AND RSA NO.177/2006 THE COURT ON 03.04.2019 PASSED THE FOLLOWING:** R.S.A. Nos.164 and 177 of 2006 & 9 C.R.P.Nos.431 and 579 of 2004 ## **A.HARIPRASAD, J.** **-------------------------------------R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 -------------------------------------Dated this the 3[rd] day of April, 2019** ## **COMMON JUDGMENT** The captioned second appeals arise out of concurrent findings that the plaintiff/respondent is entitled to get a declaration of his title over the plaint schedule property and to recover possession of the same from defendants 1 to 3 with mesne profits. This finding was entered in O.S.No.88 of 1997 before the Munsiff's Court, Thodupuzha, which was confirmed in two separate appeals filed by different set of defendants, viz., A.S.Nos.132 of 2004 and 23 of 2004, heard and disposed together by the Additional District Judge, Thodupuzha. Defendants 1 to 3 are the appellants in R.S.A.No.164 of 2006 wherein the plaintiff and the 4[th] defendant are the respondents. 4[th] defendant is the appellant in R.S.A.No.177 of 2006 in which the plaintiff and defendants 1 to 3 are the respondents. R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 10 2. 4[th] defendant in the above suit was set exparte. She filed a petition under Order IX Rule 13 of the Code of Civil Procedure, 1908 (in short, “the Code”) for setting aside the exparte decree. That application was dismissed by the trial court finding that no sufficient cause was shown to set aside the exparte decree. It is pertinent to note that 4[th] defendant in the above suit had filed O.S.No.348 of 1998 before the trial court. That suit was posted along with O.S.No.88 of 1997. Since the plaintiff in O.S.No.348 of 1998 (4[th] defendant in the other suit) abstained from the court, it dismissed the suit for default. Application filed by the plaintiff (4[th] defendant) for restoration of the suit under Order IX Rule 9 of the Code was also dismissed by the trial court. These two orders were challenged in civil miscellaneous appeals before the Court of Subordinate Judge, Thodupuzha as C.M.A.Nos.20 of 2002 and 21 of 2002. Both these appeals were heard and dismissed by the lower appellate court against which C.R.P.Nos.431 of 2004 and 579 of 2004 have been filed. 3. Heard the learned counsel for the appellants/revision petitioners. Learned senior counsel appearing for the contesting respondent/plaintiff is also heard. 4. Parties are hereinafter referred to in the rank in O.S.No.88 of 1997. R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 11 5. Short facts, in O.S.No.88 of 1997, relevant for disposal of the cases, are as follows:Plaint schedule property having an extent of 27 cents belonged to the mother of the plaintiff, Rajamma, by virtue of Ext.A2. The said property had been gifted in favour of the plaintiff by his mother as per Ext.A1 in the year 1992. Thereafter the plaintiff is in possession of the property and he enjoys the same. He is residing in a building in the said property. 27 cents of property comprised in survey No.599/9/1, 13 cents of land comprised in survey No.599/10A/1 and 26 cents of property comprised in survey No.599/10B/1 of Purappuzha Village, having a total extent of 66 cents, belonged to Madathumpadikkal Padmanabhan Nair. He had gifted the said property to his daughter Sathidevikutty Amma as per gift deed No.1423 of 1976. Mother of the plaintiff, Rajamma, had purchased 27 cents from Sathidevikutty Amma as per Ext.A2. Sathidevikutty Amma had assigned an extent of 12 cents comprised in survey No.599/10A/1 to Vanthuparambil Karthiyani Amma. She had assigned the remaining property having an extent of 27 cents comprised in survey No.599/10B/1 and one cent comprised in survey No.599/10A/1 to Sarojini Amma by virtue of assignment deed No.27 of 1977. Sarojini Amma assigned the said property in favour of the husband of 1[st] defendant and father of defendants 2 and 3, viz., deceased Peethambaran, by virtue of R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 12 an assignment deed No.138 of 1987. Defendants 1 to 3 are in possession and enjoyment of the property after Peethambaran's death. 4[th] defendant had purchased land having an extent of 12 cents comprised in survey No.599/10A/1 from aforementioned Karthiyani Amma. According to the plaint averments, resurvey numbers of the plaint schedule property are 338/5 and 338/10. An extent of 7.20 Ares of land is lying in resurvey No.338/5 and land having an extent of 0.90 Ares in resurvey No.338/10. Plaintiff has been remitting basic tax for the said property. The property having an extent of 0.90 Ares comprised in resurvey No.338/10 is lying separate from the property having an extent of 7.20 Ares comprised in resurvey No.338/5. The said property is abutting the property of the defendants. Defendants had trespassed upon the plaint schedule property and reduced the same into their possession in February, 1993. Although the plaintiff demanded to vacate the property, the defendants were not amenable. Hence the suit is filed. 6. Defendants contended that the plaintiff has not acquired any right over the property lying on the eastern side of 'valari' (small stream). Defendants are in possession of the property since the year 1977. It is true that in the course of time, the stream disappeared. Even if the plaintiff had derived any right over the property lying on the eastern side of the R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 13 stream, it is lost by adverse possession and limitation. 7. 4[th] defendant had filed a suit as O.S.No.348 of 1998 to declare her right over the property scheduled to the plaint and for a consequential injunction. As mentioned earlier, O.S.No.348 of 1998 was dismissed for default and the 4[th] defendant remained absent in O.S.No.88 of 1997. 8. Common substantial questions of law raised in the appeals are as follows: (A) In a case where the suit property is not identified with reference to the boundary descriptions given in the plaint and the documents of title, are the courts below justified in granting relief to the plaintiff? (B) In the light of the eastern boundary in the plaint schedule and Ext.A1 being the Valari (thodu), is the lower appellate court correct in law in granting the plaintiff relief in respect of property to the further east of the small stream? (C) Can an erroneous demarcation in a resurvey proceeding be a foundation for a claim to title over immovable property? (D) When properties are held separately and within welldemarcated boundaries, is it not improbable and illogical to hold that a narrow triangular strip of land lies separate from the property of the plaintiff R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 14 and deep within the property of the defendants? 9. As stated above, correctness of the orders passed by the lower appellate court on applications under Order IX Rule 9 and Order IX Rule 13 of the Code arises for consideration in the revision petitions. 10. Trial court decreed the suit and as per the descriptions in the decree, it declared title of the plaintiff in respect of 0.09 Ares of property and improvements therein comprised in survey No.338/10. In the appeal, the lower appellate court not only confirmed the decree, but clarified things in the following manner: _“In the result, both appeals fail and thereby both appeals are dismissed. But the respective parties are asked to suffer their respective costs in these appeals. It is made clear that the property to be recovered is not 0.09 Ares but 0.90 Ares which is comprised in survey No.338/10 of Purappuzha Village which is shown in the plan Ext.C1(a). The plan Ext.C1(a) will form part of the decree.”_ It is clear that the lower appellate court has heavily relied on Ext.C1(a) plan to modify the decree. 11. Learned counsel for the appellants contended that the courts below committed grave errors in decreeing the suit. Mainly three R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 15 contentions are raised attacking the findings of the lower courts. Firstly, it is contended that the mandate under Order VII Rule 3 of the Code was not followed by the courts below wherein the Code insists the features to be pleaded to identify a property in dispute. Secondly, the courts below should not have granted a decree when the extent and boundaries shown in the plaint do not tally with the actual lie of the property. Thirdly, no relief could have been granted purely based on re-survey measurements. 12. Learned senior counsel for the contesting respondent argued that the courts below has correctly identified the property in dispute with reference to the documents and commissioner's report. No illegality has been committed by the courts below in decreeing the suit, especially when the parties did participate in the trial fully understanding the nature, lie and location of the property involved in the dispute. 13. This being a second appeal, complicated questions of fact cannot be re-agitated. Ext.A2 is the document by which the plaintiff's mother acquired the property. Properties have been sold by Sathidevikutty Amma in favour of one Karthiyani Amma and plaintiff's mother, Rajamma. Item No.2 in Ext.A2 is the property assigned to the plaintiff's mother Rajamma. It is pertinent to note that common boundaries have been shown for both the items. It is true that apparently there are some R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 16 mistakes in the boundary descriptions of item No.2 in Ext.A2. 14. Ext.A1 is the settlement deed executed by Rajamma in favour of the plaintiff. In Ext.A1, eastern boundary shown is “Valarithodu” (small stream). On the south, it is a road and on the west, it is Palakkalkar's land and on the north, it is Palathinalkar's land. It can be seen that all the boundaries in Exts.A1 and A2, except the eastern one, tally with one another. There is no dispute regarding the survey number mentioned in the documents. 15. Ext.C1 is the commissioner's report and Ext.C1(a) the plan, which is appended to the decree of the court below. It is pertinent to note that no attempt was made to challenge the statements in Ext.C1 commission report and the markings in Ext.C1(a) plan. Actually, the parties did not seriously challenge the evidence gathered by the commissioner. According to the commissioner's report (paragraph 5), he has identified the property in Ext.A1 as plots 1 to 3 as shown in Ext.C1(a) plan. Properties marked as plots 2 and 3 in Ext.C1(a) lie in between the properties claimed by the two sets of defendants. In fact, they lie further east of plot No.1 shown in Ext.C1(a) plan. Stated precisely, plot No.1 on one hand and plots 2 and 3 on the other lie on both sides of the defendants' property. R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 17 16. On a perusal of the commissioner's report, it can be seen that the commissioner has clearly stated the demarcating features of the property claimed by the plaintiff. Merely because there is some wrong description of the boundary in Ext.A1, I do not think that the appellants can capitalise it when all other features capable of identifying the property have been established in this case. 17. Factors to be considered for identifying immovable properties are boundaries, measurements, extent, survey number, etc. It has been held in catena of decisions that for identifying immovable property predominance should be given to that feature which is likely to be mistaken the least. In otherwords, factors which are stable and decisive in the matter of identification should be preferred over other factors. I am also aware that normally, boundaries should prevail the other demarcating features. But that is not an inflexible rule. As mentioned above, there is a mistake in respect of eastern boundary as per the description in the plaintiff's title deed. Whether that should be the sole reason to throw out his case has to be considered. 18. The lower appellate court in paragraph 12 made the following observations: _“The learned counsel for the defendant No.4 invited_ R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 18 _my attention to the eastern boundary of the property comprised in the document Ext.A1. It is true that the eastern boundary of the property comprised in the document , Ext.A1 is the said valari thodu, (stream). Hence he would argue that there is no possibility for the plaintiff to have property on the further eastern side of the said valari thodu, stream. I find it difficult to agree with the learned counsel for the 4[th] defendant ie. The appellant in A.S.No.23/2004. The eastern boundary of the property comprised in the document, Ext.A2 is described as “Chempalasseri purayidam”. If so, if cannot be said that the plaintiff have not derived any right or title over the property which is lying on the eastern side of the stream, cannot be taken as the gospel truth of the matter. The defendant Nos.1 to 3 have admitted in their written statement to the effect that the course of the stream was changed due to lapse of time. Such a possibility cannot be ruled out while considering the facts of this case. Admittedly, the property of the plaintiff is lying on the eastern side of the stream. The commissioner's plan, Ext.C1(a) will go to show that the property which is_ R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 19 _comprised in survey No.338/10 having an extent of 0.90 Ares is lying on the eastern side of the said stream. It is apparent from the plan, Ext.C1(a) that the properties of the defendants are comprised in resurvey Nos.338/9 and 403/1. The defendants have not produced any documents to prove that their properties are lying in resurvey No.338/10. The evidence of the witness, PW2 will writ large at this juncture. The witness, PW2 is none other than the assignor of the property which is now owned by defendants 1 to 3. He has specifically stated in his evidence that the mother of the plaintiff was in possession of the property having an extent of 2 ½ cents which was lying on the eastern side of the stream. It is discernible from the evidence of the witness, PW2 that the defendants have not derived any right over the property having an extent of 0.90 Ares which is comprised in resurvey No.338/10 of Purappuzha village. It is evident from the Commissioner's plan, Ext.C1(a) that the defendants 1 to 3 are in possession of the property having an extent of 50 square metres and the defendant No.4 is in possession of 40 square metres which are comprised in resurvey_ R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 20 _No.338/10 of Purappuzha village. The learned counsel for the appellant would argue that the court cannot bank upon the commissioner's plan, Ext.C1(a) to take a view that the plaintiff has derived title over the property having an extent of 0.90 Ares which is comprised in resurvey No.338/10. But the defendants have not taken out any pain to set aside the commission Report and plan. Apart from the waxing eloquence of the learned counsel for the appellants, there is nothing before the court to take a view that the plan, Ext.C1(a) is not at all reliable by a court of law. The oral evidence of the witnesses PW1 and PW2 and the documentary evidence of Exts.A1, A2, C1 and C1(a) will amply prove that the plaintiff has derived title over the property having an extent of 0.90 Ares which is comprised in resurvey No.338/10 of Purappuzha village. The defendants have not adduced or produced any sufficient evidence to take a view that they have derived right over the said property. It is true that the defendants have contended in their respective written statements that the right of the plaintiff over the said property is lost by adverse possession._ R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 21 _But there is dearth of evidence to take a view that the right of the plaintiff is lost by adverse possession. The defendants may be in possession of the property for a long period. Every long possession cannot be construed as adverse possession. The defendants have to prove that their possession is hostile in nature. The law is well settled on that score. If that be the position, I have to hold that the right of the plaintiff over the property in dispute is not lost by adverse possession.”_ The factual findings quoted above cannot be challenged in the second appeals since the evidence available on record would justify the finding of the lower appellate court. 19. I shall now consider the sustainability of the legal questions raised in the second appeals. Learned counsel for the appellants contended that the rule in Order VII Rule 3 of the Code has been completely violated in this case and the courts below, ignoring the violation, has granted a decree. Order VII Rule 3 of the Code says that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. It further says that in case such property can be identified by boundaries or numbers in a R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 22 record or settlement of survey, plaint shall specify such boundaries or numbers. What the law requires is that description of the property in the plaint must be sufficient to identify the property. If independently of the boundaries, the property can be sufficiently identified, then any error or mis-description of the boundaries cannot affect either the suit or the decree passed in the suit (see **S.Nagaraj v. Kalluramma (AIR 1996 Kart.** **125; Ganesh v. Shri Ram Lalaji Maharaj Birajman Mandir (AIR 1973 All. 116 (FB)** ). 20. It is settled law, a suit can be dismissed for vagueness of the description of the property. But, where the property in dispute is clearly described in the plaint and the defendant had clearly understood the identity of the property, he cannot be heard to contend that the plaint does not conform to the standard in Order VII Rule 3 of the Code. In a suit relating to immovable property, when the plaintiff gives the particulars sufficient to identify the property, including the boundaries or the numbers in the record of survey, it shall have to be presumed that sufficient particulars are given. Order VII Rule 3 of the Code cannot be viewed as a stringent provision requiring the court to dismiss the suit for minor discrepancies in the description of the property, provided the parties have understood as to which property is in dispute between them. R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 23 21. In the plaint, following averments are made in paragraphs 7 ## and 8: “7) ഇപപ്രകകാരമമിരമികക പ്രപുറപപ്പുഴ വമിലലല്ലേജമിൽ resurvey നടപ്രടമികൾ നടനമിടപ്പുള്ളതപുത, resurvey plan ഗവകണ്മെനന approve കചെയപ്പുകയപുത, final ആയമിചമിടപ്പുള്ളതപുമകാണ. Resurvey plan - ൽ വകാദമിയപുകട വസതപു സർലവ 338/5 - ൽ 7.20 ആറപുത, 338/10 ൽ 0.90 ആറപുത ആയമി ലരഖകപടപുതമിയമിടപ്പുള്ളതപുത, ടമി വസതപുകൾ വകാദമികക അവകകാശകപടതപുത വകാദമി കരത ഒടപുകമി വരപുനതപുമകാണ. ടമി വസതപുകളമിൽ പപ്രതമികൾകകാർകപുത അവകകാശമമിലല്ലേകാതതപുമകാണ. 8) വകാദമികക അവകകാശകപടതപുത ററീസർലവ 338/10 ൽ കപ്രട 0.90 ആർ സ്ഥലത വകാദമിയപുകട സർലവ 338/5 - ൽ 7.20 ആർ സ്ഥലവപുമകായമി ലവറമിടക സ്ഥമിതമി കചെയപ്പുനതപുമകാണ. ആയത 1 മപുതൽ 3 വകര പപ്രതമികളപ്പുകട മപുൻഗകാമമി പ്രറീതകാതബരനകറയപുത, 4-)ംത പപ്രതമിയപുകട മപുൻഗകാമമിയപുകടയപുത വസതപുകളപ്പുകടയപുത മമൂലഭകാഗങ്ങൾ കകകാണപുത tocuh കചെയതപുത സ്ഥമിതമി കചെയപ്പുനതപുമകാണ. വകാദമികക അവകകാശകപടതപുത ററീ സർലവ 338/10 ൽ കപ്രട മപുൻ വമിവരമിച 0.90 ആർ സ്ഥലത 1 മപുതൽ 3 വകര പപ്രതമികളപ്പുത 4-)ംത പപ്രതമിയപുത ലചെർനക വകാദമിയപുകടയപുത മറപ്പുത അറമിവപുത സമ്മതവപുമമിലല്ലേകാകത 1993 കഫെപബപുവരമി മകാസതമിൽ അനധമികകൃതമകായമി കകവശകപടപുതമിയമിടപ്പുള്ളതപുത, ആയത വമിടപ്പു തരണകമനക ആവശശ്യകപടതമിൽ വസതപുകൾ അളപമികകാകമനപുത, അവരപുകട കകവശത വകാദമിയപുകട വസതപു ഭകാഗത ഉകണങമിൽ വമിടപ്പു തരകാകമനപുത മറപ്പു പപ്രതമികൾ വകാദമിലയകാട പ്രറഞമിരപുനതപുത, എനകാൽ പ്രമിനമിട വസതപുകൾ അളകകാൻ പപ്രതമികൾ വഴമികപടകാതമിരമികപുനതപുത, പ്രടമിക വസതപു പപ്രതമികൾ അനധമികകൃതമകായമി കകവശകപടപുതമിയമിടപ്പുള്ളതപുത അതമിരപുകൾ മകാറത R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 24 വരപുതമിയമിടപ്പുള്ളതപുമകാണ.” 22. The above contentions have been countered by the defendants in their respective written statements. The averments in paragraph 3 of the written statement filed by defendants 1 to 3 oppose the allegations in the plaint quoted above. It is clear that they have understood the property over which the plaintiff has laid a claim. Similarly the written statement filed by the 4[th] defendant, especially referring to paragraphs 7 to 10, denies the claim of the plaintiff over the property. It is brought to my notice that parties went for trial fully understanding the description of the property over which the relief is claimed by the plaintiff. Therefore, I find no reason to hold that the rule in Order VII Rule 3 of the Code has been violated in this case. 23. Learned counsel for the appellants argued that it is highly improbable for the plaintiff to contend that he is entitled to a land lying beyond the defendants' property and that too in a narrow triangular shape. Learned counsel for the appellants relying on a decision of this Court in **Ibrahim v. Saythumuhammed (2013 (4) KLT 435)** contended that survey authorities cannot decide the question of title based on survey records. The property has been demarcated in a survey, which has become final and it is included in the plaintiff's title. Although it can be stated that the survey demarcations will not confer title on an individual, the lower R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 25 appellate court has arrived at a factual conclusion, regarding the lie of the property, based on evidence in this case. Therefore, the contention of the learned counsel for the appellants, that when the properties are held separately within well demarcated boundaries, it is not probable to hold that a narrow triangular strip of land lying far away from the plaintiff's property is also included in his title, cannot be accepted. I find no reason to draw a different conclusion on the facts in this case and the substantial questions of law raised can only be found against the appellants. Hence the appeals are liable to be dismissed. 24. Learned senior counsel appearing for the contesting respondent relying on a decision of this Court in **Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717)** contended that it has been held that even beyond the period of one year after finalisation of resurvey, although a suit under Section 14 of the Survey and Boundaries Act, 1961 is barred, a suit on title disputing the re-survey is maintainable. So far no suit has been filed by the appellants, contended the learned senior counsel. In the same decision, it has been held that difference in extent of property in re-survey by itself would not confer title. 25. Revision petitions, as mentioned above, are directed against the petitions filed by the 4[th] defendant in the suit for restoring her suit by R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 26 invoking Order IX Rule 9 and for setting aside the exparte decree against her in the plaintiff's suit by invoking Order IX Rule 13 of the Code. Since she has filed a regular appeal against the decree and that is found to be not allowable for the reasons stated, I find no merit in C.R.P.No.431 of 2004. 26. Similarly, on perusal of the orders impugned in C.R.P.No.579 of 2004, I find no reason to disagree with the trial court and hold that they wrongly exercised the jurisdiction under Order IX Rule 9 of the Code when they refused to restore the revision petitioner's suit, O.S.No.348 of 1998. Hence these civil revision petitions are also liable to be dismissed. In the result, the appeals and revision petitions are hereby dismissed. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** **cks** R.S.A. Nos.164 and 177 of 2006 & C.R.P.Nos.431 and 579 of 2004 27