R.S.A. No. 730 of 2008; R.S.A. No. 848 of 2009; W.P(C) No. 19907 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931** **RSA.NO. 730 OF 2008()** **----------------------------------** **AS.131/2001 OF III ADDITIONAL DISTRICT COURT, KOLLAM OS.705/1994 OF PRINCIPAL MUNSIFF'S COURT, KOLLAM** **....................** **APPELLANT – 1[ST] RESPONDENT - 1[ST] DEFENDANT:** **---------------------------------------------------------------------** **PRASANNA KUMAR, PANACHALKIZHAKKATHIL, KUREEPUZHA CHERRY, THRIKKADAVOOR VILLAGE, KOLLAM.** **BY ADV. SRI.K.SUBASH CHANDRA BOSE SRI.K.J.JOMSON** **RESPONDENT(S) – APPELLANT – PLAINTIFF – RESPONDENTS 2 TO 4 – DEFENDANTS 2 TO 4 :** **-------------------------------------------------------------** ## **1. SATHEESH CHANDRAN,** **S/O. SANKARAPILLAI, PANACKAL HOUSE, KUREEPUZHA CHERRY, THRIKADAVOOR VILLAGE, KOLLAM.** ## **2. MURALEEDHARAN PILLAI,** **S/O. SANKARA PILLAI, R/AT M.C. NO. 458, SOUTH OF DURGA HOTEL, KAIKULANGARA WARD, KOLLAM.** **3. PUSHPA KUMARY, GOWRIPRASADAM, NJARAKKAL, PERINADU, KOLLAM.** **4. S. REMADEVI, ANJALI,** **M.C 418/27, KAIKULANGARA NORTH, CUTCHERY JUNCTI0N, KOLLAM.** ## **ADV. SRI.K.S.MANU (PUNUKKONNOOR) FOR R1** **SRI.P.SREEKUMAR FOR R1 SRI.K.K.CHANDRAN PILLAI FOR R4 SRI SAJUSH PAUL FOR R4 SRI.C.UNNIKRISHNAN (KOLLAM) FOR R3 SRI.V.PREMCHAND FOR R2** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2009 ALONG WITH RSA NO. 848 OF 2009 AND WPC NO. 19907 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **R.S.A. NO.730 OF 2008,** ## **R.S.A. NO.848 OF 2009 AND** ## **W.P(C) NO.19907 OF 2008** = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24[th] day of November, 2009 ## **J U D G M E N T** --------------------- Respondents in these proceedings appear through counsel. 2. As per Ext.A1, gift deed dated 29.1.1983 executed by the parents 23 cents of land was gifted to their children. Accordingly plaintiff got 5.5 cents which is described as A schedule in the plaint. Defendant No.1 got six cents which is plaint B schedule situated on the immediate east of plaint A schedule. Defendant No.2 got 5.5 cents on the north of plaint A schedule, described in plaint as C schedule. In between A & C schedules there is a pathway described in the plaint as 'D' schedule and it is not disputed, it forms part of plaint B schedule. Additional defendant No.3 got six cents as per Ext.A1, gift deed which is situated on the east of plaint B schedule. Much prior to Ext.A1, the mother who had 10 cents of land gifted eight cents to additional defendant No.4 as per Ext.B2, gift deed dated 17.11.1969. That eight cents is situated on the north of the property gifted to additional defendant No.3 and east of a portion of plaint B schedule. Plaintiff was not able to agree with his adjacent land ## **R.S.A. NO.730 OF 2008, R.S.A. NO.848 OF 2009 & W.P(C) NO.19907 OF 2008** ## -: 2 :- owners, defendant Nos.1 and 2 owning plaint B and C schedules as regards the eastern and northern boundary of plaint A schedule and accordingly filed O.S. No.705 of 1994 for fixation of the eastern and northern boundaries and for prohibitory and mandatory injunction (prayer for mandatory injunction was given up during the trial of the case). Defendant No.1 contended that since there is a permanent boundary on the east and north of plaint A schedule even as on the date of suit, fixation of boundary is not required. He has also a contention that though total extent of the property dealt with in Ext.A1 is 23 cents, there is shortage in the total extent which all the donees under Ext.A1 have to suffer proportionately. In the light of that contention he claimed that though in Ext.A1 extent of property gifted to the plaintiff is shown as 5.5. cents (plaint A schedule), plaintiff has no possession of that much extent of land. Defendant Nos.2 to 4 also raised similar contentions. Additional defendant No.3 made a counter claim against defendant No.1 and additional defendant No.4 seeking fixation of boundary of the six cents which she got as per Ext.B2 and which is situated on the east of plaint B schedule. Learned Munsiff found on a consideration of the evidence that since there is a permanent boundary on the east and north of the plaint A schedule intervention of the court is not required and ## **R.S.A. NO.730 OF 2008, R.S.A. NO.848 OF 2009 & W.P(C) NO.19907 OF 2008** -: 3 :- dismissed the suit. Counter claim preferred by additional defendant No.3 also did not find favour with the learned Munsiff and met with the same result. Plaintiff preferred A.S. No.131 of 2001 challenging the dismissal of the suit. Additional defendant No.3 was not satisfied with the reasoning of learned Munsiff in dismissing the counter claim but did not pursue the matter further. First appellate court found that so far as the northern boundary of plaint A schedule is concerned there is dispute regarding **¼** cent which plaintiff claimed to be part of plaint A schedule but which the defendants disputed. First appellate court found that there is a compound wall on the northern side of plaint A schedule extending east-west which is the physical boundary of plaint A schedule and in view of the above, without settling dispute regarding the **¼** cent over which parties quarrel, northern boundary of plaint A schedule cannot be fixed. First appellate court was of the view that though there was a compound wall on the eastern side of plaint A schedule which is the physical boundary, that was almost in a collapsed state as reported by the Advocate Commissioner in Ext.C3 and hence ordered that along the same line of that wall pointed out by the Advocate Commissioner (on the east of plaint A schedule), boundary could be fixed to prevent further dispute between the parties. Appeal was disposed of accordingly. Plaintiff not being ## **R.S.A. NO.730 OF 2008, R.S.A. NO.848 OF 2009 & W.P(C) NO.19907 OF 2008** ## -: 4 :- satisfied with the judgment and decree of first appellate court in that the northern boundary of plaint A schedule is not fixed, filed R.S.A. No.848 of 2009 while fixation of eastern boundary of plaint A schedule is challenged by defendant No.1 (who owns plaint B schedule admittedly situated on the immediate east of plaint A schedule) in R.S.A. No.730 of 2008. In the meantime additional defendant No.3 who lost the counter claim and did not pursue the matter further, tried to invoke the provisions of the Survey and Boundaries Act by preferring a petition to the Survey authorities for fixation of boundary of the six cents given to her as per Ext.A1 which I stated is situated on the east of plaint B schedule and south of the eight cents gifted to additional defendant No.4 as per Ext.B2, gift deed dated 17.11.1969. Since the request of additional defendant No.3 was not pursued by the Survey authorities in right earnest she approached this Court with a Writ Petition. This Court directed the Survey authorities to dispose of the application preferred by additional defendant No.3. Thereafter as per direction of the additional Tahsildar, Taluk Surveyor inspected the properties of additional defendant Nos.3 and 4 and attempted to mark the survey boundary line but noticed that when the eight cents gifted to additional defendant No.4 as per Ext.B2 is taken into account the survey boundary line will cut across a portion of the building in the ## **R.S.A. NO.730 OF 2008, R.S.A. NO.848 OF 2009 & W.P(C) NO.19907 OF 2008** -: 5 :- property in the possession of additional defendant No.4 and hence he kept his hands off in the matter. He made a report to the Additional Tahsildar who in turn as per Ext.P8 (in W.P(C) No.19907 of 2008) dated 13.12.2007 conveyed the decision to additional defendant No.3 which is under challenge in W.P(C) No.19907 of 2008. 3. Now the grievance of the parties is as under: (i) Plaintiff would say that first appellate court ought to have fixed the northern boundary of plaint A schedule also. (ii) Defendant No.1 would say that the first appellate court went wrong in fixing the eastern boundary of plaint A schedule when there is a permanent physical boundary as reported by the Advocate Commissioner in Ext.C2. (iii) Additional defendant No.3 would complain that for the mere reason that a portion of the building in the eight cents gifted to additional defendant No.4 as per Ext.B2 areally trespassed into the property belonging to additional defendant No.3 (six cents), Taluk Surveyor was not justified in not measuring the property and fixing the survey boundary. 4. So far as the northern boundary of plaint A schedule is concerned, the Advocate Commissioner has reported in Ext.C3 about a compound wall extending east-west from which the first appellate ## **R.S.A. NO.730 OF 2008, R.S.A. NO.848 OF 2009 & W.P(C) NO.19907 OF 2008** ## -: 6 :- court found that there is a physical boundary on the northern side of plaint A schedule and therefore it is not necessary to fix the northern boundary. A further fact noticed by the first appellate court is that there is dispute between the parties as to title and possession over a small strip of land, **¼** cent which according to the plaintiff is beyond the northern compound wall and which according to the plaintiff formed part of plaint A schedule. This is disputed and denied by the defendants. When there is a dispute regarding title and possession boundary cannot be fixed without first settling the dispute regarding title and possession. Fixation of boundary can be ordered only after settling all other disputes as to title and possession if any. It has been so held by this Court in **Bapputty @Sydali and Others v. Cheriakutty @ Veerankhani Rawther** (1990(1) KLJ 218) and **Anjil Vellachi v. Mamuni Bhaskaran** (2009(3) KHC 728). In the circumstances first appellate court was justified in refusing to fix the northern boundary of plaint A schedule. 5. Turning to the grievance of defendant No.1 regarding fixation of eastern boundary of plaint A schedule, it is seen that boundary was ordered to be fixed by the first appellate court along the same line the Advocate Commissioner reported in Ext.C3 about the existence of the collapsed compound wall (on the east of plaint A ## **R.S.A. NO.730 OF 2008, R.S.A. NO.848 OF 2009 & W.P(C) NO.19907 OF 2008** -: 7 :- schedule). To that extent defendant No.1 can have no valid grievance. 6. It is pointed out by learned counsel for defendant No.1 that under the guise of decree passed by the court for fixation of the eastern boundary, plaintiff has extended the eastern wall (northsouth) in such a way that it has taken in a portion of plaint D schedule also (at the portion where it abuts plaint B schedule) so that, defendant No.1 is not able to gain access to plaint B schedule through plaint D schedule which according to the learned counsel is the only means of access to plaint B schedule. Learned counsel for plaintiff would say that the allegation is not correct and that the eastern boundary of plaint A schedule was fixed and compound wall was constructed strictly in accordance with the decree of the first appellate court in that regard. 7. So far as the above grievance of defendant No.1 is concerned, the width of plaint D schedule is reported by the Advocate Commissioner as 1.77 metres. If the above contention of defendant No.1 were accepted, it would mean that extension of the eastern boundary of plaint A schedule towards further north takes in the disputed **¼** cent also which according to defendant No.1 is part of plaint D schedule. In the way in which I propose to dispose of R.S.A. No.730 of 2008 the proper course is to permit defendant No.1 to move ## **R.S.A. NO.730 OF 2008, R.S.A. NO.848 OF 2009 & W.P(C) NO.19907 OF 2008** -: 8 :- the executing court to ensure that plaint D schedule pathway has width of 1.77 metres at its eastern extremity also and if any portion of the compound wall constructed on the eastern boundary of pliant A schedule interferes with plaint D schedule having width of 1.77 metres it is open to defendant No.1 to request the executing court to remove that much portion of the compound wall on the eastern side of plaint A schedule interfering with plaint D schedule having width of 1.77 metres. This will be subject to the right of plaintiff to enforce the right he claimed over the disputed **¼** cent and seek appropriate reliefs based on the title he claims over the said **¼** cent. 8. So far as the Writ Petitioner is concerned it is not disputed that counter claim preferred against defendant Nos.1 and 4 did not find favour with the trial court and learned Munsiff dismissed the same. Decree on the counter claim has become final. So far as measurement of the properties of additional defendant Nos.3 and 4 is concerned, it would appear that there is dispute regarding possession in that Ext.P8 in the Writ Petition states that a portion of the building of additional defendant No.4 areally trespassed into the property claimed by additional defendant No.3 and hence a fixation of survey boundary is not possible. When there is dispute regarding title and/or possession such disputes are to be settled through the civil court and ## **R.S.A. NO.730 OF 2008, R.S.A. NO.848 OF 2009 & W.P(C) NO.19907 OF 2008** ## -: 9 :- not by recourse to the provisions of the Survey and Boundaries Act. For, power of the authorities under the Survey and Boundaries Act is only to fix the boundary as per the relevant records. They cannot enter into a finding regarding title and possession which is within the realm of the civil court. Additional defendant Nos.3 and 4 are not able to agree as to the alleged areal trespass. In such a situation when it may be possible for additional defendant No.3 to raise appropriate contentions as to her entitlement to retain the disputed portion of the building as it is, it is not proper to try to resolve the dispute by fixation of survey boundary by the Survey authorities which in my view will not settle the dispute for ever, since still issue regarding title or possession of the disputed portion has to be determined through the civil court. Hence I am not inclined to grant any relief in the Writ Petition. I make it clear that it will be open to additional defendant No.3 to seek appropriate reliefs in the civil court if she were otherwise entitled to that course on the strength of the title she claims over the disputed portion. In the light of the above discussion, the Second Appeals and Writ Petition are disposed of in the following lines: (i) Without prejudice to the right of **R.S.A. NO.730 OF 2008, R.S.A. NO.848 OF 2009 & W.P(C) NO.19907 OF 2008** -: 10 :- plaintiff based on the title he claims in respect of the **¼** cent towards the northern portion of plaint A schedule extending east-west and seeking appropriate reliefs in appropriate proceeding if plaintiff is otherwise entitled to that course, R.S.A. No.848 of 2009 is dismissed. (ii) So far as the grievance of defendant No.1 that the compound wall constructed on the eastern side of plaint A schedule property pursuant to the decree of the first appellate court trespassed into a portion of plaint D schedule pathway having a width of 1.77 metres is concerned, it is made clear that it will be open to defendant No.1 to move the executing court (and if already moved to pursue that remedy) for removal of that portion of the compound wall on the eastern portion of the plaint A schedule which allegedly trespassed into the D schedule pathway having a width of 1.77 metres and ensure that width of plaint D schedule is maintained as 1.77 metres. It is made clear that this will be subject to the right, if any of the plaintiff to enforce his remedy on the strength of title which I have referred to in clause (i) above. It is further made clear that even if plaintiff has filed such a suit it will be open to defendant ## **R.S.A. NO.730 OF 2008, R.S.A. NO.848 OF 2009 & W.P(C) NO.19907 OF 2008** ## -: 11 :- No.1 to request the executing court to direct removal of that portion of the eastern compound wall which allegedly trespassed into plaint D schedule pathway having a width of 1.77 metres subject of course to the result of the suit instituted or that may be instituted by the plaintiff in that regard. (iii) Defendant No.1 may request the executing court to expedite the application if any pending in that court at his instance and if any such request is made the executing court shall expedite disposal of that application. (iv) Without prejudice to the right if any of additional defendant No.3 to seek appropriate reliefs in the civil court based on the title and/or possession she claims against additional defendant No.4 or such other persons as the case may be, Writ Petition will stand dismissed. ## **THOMAS P.JOSEPH, JUDGE.** vsv **R.S.A. NO.730 OF 2008, R.S.A. NO.848 OF 2009 & W.P(C) NO.19907 OF 2008** -: 12 :- **THOMAS P.JOSEPH, J. =================== R.S.A. NO. ===================** **J U D G M E N T** **NOVEMBER, 2009**