Regular Second Appeal No. 710 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **THURSDAY, THE 11[TH] DAY OF APRIL 2024 / 22ND CHAITHRA, 1946** ## **RSA NO. 710 OF 2014** **AS NO.127 OF 2008 OF DISTRICT COURT, ALAPPUZHA** **OS NO.3 OF 2001 OF PRINCIPAL MUNSIFF COURT, ALAPPUZHA** ## **APPELLANTS/RESPONDENTS 2 TO 5/LEGAL REPRESENTATIVESS OF THE PLAINTIFF** - **1 KAMALAMMA, AGED 60 YEARS W/O K.T. BUOY, KANJOOCHIRA HOUSE, PARAVOOR VILLAGE, ALAPPUZHA** - **2 BIJI, AGED 42 YEARS S/O K.T. BUOY, KANJOOCHIRA HOUSE, PARAVOOR VILLAGE, ALAPPUZHA** - **3 BINEESH, AGED 40 YEARS S/O K.T. BUOY, KANJOOCHIRA HOUSE, PARAVOOR VILLAGE, ALAPPUZHA** - **4 BIJOY, AGED 32 YEARS, S/O K.T. BUOY, KANJOOCHIRA HOUSE, PARAVOOR VILLAGE, ALAPPUZHA BY ADVS. SRINATH GIRISH P.JERIL BABU HALVI K.S.** ## **RESPONDENTS/APPELLANTS/DEFENDANTS** - **1 SHIBU, AGED 41 YEARS S/O PRABHAKARAN, RETHI NIVAS, PARAVOOR MURI, PARAVOOR VILLAGE, ALAPPUZHA - 688001** - **2 PRABHAKARAN, AGED 68 YEARS RETHI NIVAS, PARAVOOR MURI, PARAVOOR VILLAGE, ALAPPUZHA** **BY ADVS. SRI.R REKHA V.V.ASOKAN (SR.) SRI.R.AZAD BABU** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 3.4.2024,** **THE COURT ON 11.04.2024 DELIVERED THE FOLLOWING:** _RSA 710 of 2014_ 2 ## **C.R.** ## **C.PRATHEEP KUMAR, J.** -------------------------------------R.S.A.710 of 2014 ----------------------------Dated : 11[th] April, 2024 ## **JUDGMENT** 1. This Second Appeal is filed under Section 100 r/w Order XLII of CPC by the additional respondents 2 to 5 in A.S.127/2008 on the file of the District Court, Alappuzha, who are the legal representatives of the plaintiff in O.S.3/2001 on the file of the Principal Munsiff's Court, Alappuzha, against the judgment dated 30.11.2013, allowing the above appeal and dismissing the above Suit. For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial Court. 2. The brief facts necessary for the disposal of this appeal are extracted below : The plaintiff obtained 37.25 cents of landed property comprised in Survey No.335/4/11 of Paravur (old Punnapra) village as item No.1 in Ext.A1 gift deed No.424/75 of SRO, Alappuzha. As per Ext.A2 sale deed, he had sold 13 cents to the 1[st] defendant and as per Ext.A3, 14 cents was sold to the 2[nd] defendant from out of the above 37.250 cents. The remaining 10.250 cents is the plaint schedule property. Alleging that, _RSA 710 of 2014_ 3 because of some mistake in the re-survey records, the defendants are not permitting him to enjoy the plaint schedule property, he filed the suit for declaration of title and recovery of possession of the plaint schedule property. The case of the defendants was that though the plaintiff obtained 37.250 cents as per Ext.A1 in the year 1975, portions of the same were utilized for widening the pathway on the southern side and National Highway on the western side, that the remaining property available with the plaintiff was only 27 cents and the above entire 27 cents was sold to defendants 1 and 2 as per Ext.A2 and A3 sale deeds. 3. The learned Munsiff, relying upon Ext.C1 and C1(b) Commission report and sketch declared the plaintiff's title over the plaint schedule property. The prayer for recovery of possession and injunction was also granted. However, the 1[st] Appellate Court reversed the finding of the trial court and dismissed the Suit. Aggrieved by the above judgment and decree of the first Appellate Court, the legal representatives of the plaintiff preferred this Second Appeal. 4. At the time of admission, after hearing both sides, this Court formulated the following substantial question of law. - _“Did not the lower appellate court mis-apply the principle that in case of conflict between description of area and boundaries, the later will prevail to the facts situation of the_ _RSA 710 of 2014_ 4 _case ?_ 5. Both sides were heard in detail, on the above question of law. 6. Admittedly, as per Ext.A1 gift deed, the plaintiff obtained 37.250 cents of property. While according to the plaintiff, from the above 37.250 cents, he had sold 13 cents to the 1[st] defendant (D1) as per Ext.A2 and 14 cents to the 2[nd] defendant (D2) as per Ext.A3 and as such he is entitled to get back the remaining 10.250 cents, the specific case of the defendants is that at the time when Exts.A2 and A3 sale deeds were executed by the plaintiff in their favour on 13.1.1989, the plaintiff was in possession of only 27 cents and the remaining property was gone for widening the pathway on the southern side as well as the National Highway on the western side. 7. In order to substantiate the above contention, the defendants relied upon the description of property in Exts.A2 and A3 documents. In Exts.A2 and A3, it is categorically stated that out of the 37.250 cents obtained as per Ext.A1, certain portion was utilized for the pathway on the southern side and National Highway on the western side and the remaining available property was only 27 cents, which is described within the four boundaries mentioned in Exts.A2 and A3. Out of the above 27 cents admittedly available with the plaintiff, 13 cents on the eastern side was sold to the 1[st] defendant as per Ext.A2 and the western _RSA 710 of 2014_ 5 14 cents was sold to the 2[nd] defendant as per Ext.A3 sale deed. Therefore, going by the above description of the property in Exts.A2 and A3 documents executed by the plaintiff, at the time of executing those documents, he had only 27 cents of property in his possession. As per the recitals in Exts.A2 and A3 sale deeds, the above entire 27 cents was sold by him to the defendants 1 and 2. Thereafter, no property was available with the plaintiff, as claimed in the plaint. 8. Since similar boundary descriptions are given in Exts.A2 and A3, the learned counsel for the plaintiff would argue that, the above boundaries are not correct. Therefore, it was argued that the general rule that in case of conflict between description of area and boundaries, the boundaries will prevail, does not apply to the facts of this case and also that the above principle as applied by the first Appellate Court is incorrect. To substantiate the above contention the learned counsel for the plaintiffs relied upon the decision of a Division Bench of this Court in **Savithri Ammal v. Padmavathi Amma, 1990 KHC 295** and the decision of a Single Bench in **Chandrakumar v. Narayanan Bahuleyan and Another, 2011 (2) KHC 884** . In the decision in **Savithri Ammal** (supra), the Division bench held that :- _“Where there is a difference in the extent and the boundaries covered by documents, one or other. which is clearer and more_ _RSA 710 of 2014_ 6 _specific has to be preferred. In some cases it may be the boundary. In some other cases it may be the extent and in yet other cases it may be the side measurements. There is no invariable rule in this regard. None of the decisions on which the appellants rely has held positively that in all cases of such conflict the boundary alone shall prevail.”_ 9. In **Chandrakumar** (supra), the learned Single Judge, after referring various decisions, held that usually in such circumstances, boundaries predominate. However, the learned Judge also made it clear that the above principle is not an inflexible rule. 10. It is true that the boundary descriptions in Exts.A2 and A3 are entirely different from that in Ext.A1. In Ext.A1, the boundaries of 37.250 cents are mentioned by using survey numbers of the adjacent properties. Both in Exts.A2 and A3, identical boundaries are given. The boundary descriptions in Exts.A2 and A3 are as follows : _East : Property of Kulaparambil Shibuvan_ _South : Vazhi_ - _West : National Highway_ _North : Property of Narayanan_ 11. However, it is to be noted that in Exts.A2 and A3, it is made clear that the above boundaries are the common boundaries of the entire 27 cents _RSA 710 of 2014_ 7 covered by both Exts.A2 and A3 and not the separate boundaries of 13 cents covered by Exts.A2 and 14 cents covered by Ext.A3. If the above boundaries are taken as that of the entire 27 cents, there is no ambiguity or confusion. Therefore, there is no merits in the contention that the above boundaries given in Exts.A2 and A3 are incorrect. 12. The plaintiff has no consistent case with regard to the exact area, lie and location of the property belonging to him, after the execution of Exts.A2 and A3. As I have already noted above, in Exts.A2 and A3, the plaintiff categorically admitted that after the formation of the southern pathway and western National Pathway, the extent of property remained with him was only 27 cents. All the above 27 cents were sold to defendants 1 and 2 as per Exts.A2 and A3. Therefore, he has not retained any balance property with him, either in Ext.A2 or in Ext.A3. 13. With regard to the extent of the plaint schedule property also, the plaintiff' has no consistent case. In the original plaint he claimed that the extent of the plaint schedule property is 9.25 cents. However, it was subsequently amended in the year 2008. After the amendment, now the extent of the plaint schedule property is to 10.25 cents 14. The plaintiff also has no idea about the lie and location of the property claimed. In the original plaint, his case was to the effect that the plaint schedule property situates on the extreme southern side of the entire _RSA 710 of 2014_ 8 37.25 cents. Subsequently, it was also amended in the year 2008. As per the amended plaint, the plaint schedule property situates in between the properties covered by Exts.A2 and A3. It was in the above context that the Advocate Commissioner prepared two sketches - Exts.C1(a) and C1(b). In Ext.C1(a) the plaint schedule property is shown in the east-west direction along the southern side of the entire 37.250 cents, in tune with the description in the un-amended plaint. In Ext.C1(b) the plaint schedule property is shown in between the properties covered by Exts.A2 and A3, in tune with the description in the amended plaint. The trial Court decreed the suit relying on Ext.C1(b) plan. In this context it is also to be noted that as per Exts.P2 and P3, no property is kept in between the properties covered by those documents. 15. Even as per Exts.A2 and A3, certain portion of the 37.250 cents were utilized for the southern pathway as well as for the western National Highway. Therefore, even according to the plaintiff, there was shortage in the extent of the property obtained by him as per Ext.A1. However, in Exts.C1(a) and C1(b) the Commissioner has shown the entire 37.250 cents, without any shortage. It was in the light of those circumstances the 1[st] Appellate Court found that Ext.C1(b) plan does not correctly show the properties covered by Exts.A1, A2 and A3. 16. From the available evidence it can be seen that the plaintiff' has no _RSA 710 of 2014_ 9 idea about the boundaries of the plaint schedule property also. As per the plaint schedule description, the property of one Shanmugham situates in the east, the property of Prabhakaran situates on its north and the National Highway situates on its west. The above boundary descriptions does not tally with the plaint schedule property shown in Ext.C1(b). On that ground also, the 1[st] Appellate Court was justified in rejecting Ext.C1(b) plan. 17. On the other hand, the boundaries in Exts.A2 and A3 substantiates the case of the defendants that at the time of execution of those documents the plaintiffs had only 27 cents of property and that the entire 27 cents was sold to defendants 1 and 2 and thereafter there was no property left with the plaintiff. 18. The fact that the plaintiff filed the Suit only on 1.1.2001, after 11 years and 352 days after the execution of Exts.A2 and A3 sale deeds, is another circumstance probabilising the case of the defendants. 19. The plaintiff also could not produce any documents including land tax receipts to show that he was paying any land tax for the plaint schedule property after the execution of Ext.A2 and A3 sale deeds. Admittedly the plaintiff is not in possession of the plaint schedule property. The date on which and the manner in which the plaintiff lost possession over the schedule property is also not disclosed. _RSA 710 of 2014_ 10 20. In this context it is also to be noted that the original plaintiff did not mount the box to swear his case on oath and to offer himself to be crossexamined by the defendants. Instead, on his side, his son alone was examined to prove the plaintiff's case. In the above circumstances, an adverse inference is liable to be drawn against the plaintiff under illustration (g) to Section 114 of the Indian Evidence Act **[Ramesh Kumar & Anr.v Furu Ram & Anr. 2011 KHC 4718** ; **Iqbal Basith and Others v. N. Subbalakshni and Others, 2020 KHC 6709].** In the facts and circumstance of the case, non-examination of the plaintiff is also crucial and fatal to the plaintiff's case. 21. It is true that generally when there is a conflict between area and boundary, the boundary will prevail. However, as held in the decision in **Savithri Ammal** (supra) and **Chandrakumar** (supra), the above rule is not an inflexible one. In the present case, the properties of the defendants could be clearly identified using the boundaries given in Exts.A2 and A3, while it could not be identified using the area given in the document. In the above circumstances, it is to be held that in the present case, the principle that “when there is conflict between area and boundary, boundary will prevail” squarely applies. 22. Relying upon the decision in **Savarimuthu Nadar Chellayan Nadar** - **v. Kanakku Kali Pillai Padmanabha Pillai, 1957 KHC 184,** the _RSA 710 of 2014_ 11 learned counsel for the plaintiffs would argue that the maxim “ _falsa demonstratio non nocet_ ” is to be applied in this case, in support of his argument that if there be an adequate and sufficient description with convenient certainty of what was meant to pass, an erroneous addition to the description will not vitiate it. It is true that an error will not necessarily invalidate a document if it can be determined from the other facts in it. However, in this case the above maxim does not in any way help the plaintiff as the defects in his case are so fatal that it could not be set right by any other means. 23. In this case there is absolutely no evidence to prove that the plaintiffs had title or possession over the plaint schedule property as claimed and as such, the first Appellate Court was justified in setting aside the judgment and decree of the trial court and in dismissing the suit. I do not find any illegality or irregularity in the finding of the first appellate court so as to call for any interference. In the result, the Second Appeal is dismissed. However, considering the facts, I order no costs. Sd/- ## **C.Pratheep Kumar, Judge** Mrcs/3.4.2024