S.A. No. 33 of 2000

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE P. BHAVADASAN** **THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932** ## **SA.No. 33 of 2000(D)** **-------------------AS.123/1990 of DISTRICT COURT, PALAKKAD OS.115/1988 of MUNSIFF COURT, ALATHUR** **..................** ## **APPELLANT / APPELLANT / PLAINTIFF :** **----------------------------------------------------------** **V.J. EASOW, S/O. M.I. JOHN, RESIDING AT VELASSERIL, POOTHANKAYAM, KIZHAKKENCHERRY AMSOM, ALTHUR TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.V.CHITAMBARESH SRI.S.KRISHNA PRASAD** ## **RESPONDENTS / RESPONDENTS / DEFENDANTS :** **----------------------------------------------------------------------** **1. KURIAN, S/O. ACHAYATH CHUMMAR, RESIDING AT KOTTEKULAM, KIZHAKKENCHERRY AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.** **2. CHUMMAR, S/O. ACHAYATH KURIAN, RESIDING AT KOTTEKULAM, KIZHAKKENCHERRY AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT.** - **BY ADVS. SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE SRI.S. ANANTHAKRISHNAN** - **SRI.N.K.SUBRAMANIAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 33 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of January, 2011. ## **JUDGMENT** The plaintiff, who was non-suited by the court below in a suit for injunction, is the appellant. 2. The plaintiff traced his title to Ext.A1 dated 7.1.1987 which was a document said to have been executed by one David, who was a party to Ext.A2 partition deed dated 19.3.1968. As per Ext.A2 document, the vendor of the plaintiff obtained an item of property measuring 16 x 9 ½ koles in resurvey No.105. It will be useful to refer to the commission report to understand the dispute between the parties. The commissioner located a rectangular portion and a triangular portion. The dispute in this case is in respect of the triangular portion. The plaintiff says that the triangular portion is also included in his title deed, namely Ext.A1. The defendants would say that it is not so and it belongs to them as per Ext.B2, an agreement S.A.33/2000. 2 said to have been executed by the vendor of the plaintiff and others who have interest in the property. 3. The trial court as well as the appellate court after an elaborate consideration came to the conclusion that the plaintiff has not been able to establish his title over the triangular portion of the property and accordingly dismissed the suit. 4. Notice has been issued on the following questions of law: _“(i) Whether the courts below were correct in law in not identifying the plaint schedule property with reference to the documents of title instead of measuring the property first and then attempting to tally with the measurements in the documents?_ _(ii) Have not the courts below erred in not bearing in mind the wholesome principle of law that the boundaries are to be preferred to the area shown in the documents in the matter of identification of property?_ _(iii) Whether the courts below were justified in law in placing reliance on Exts.C3 report and C4_ 3 _plan after finding that it militates against Exts.C1 report and C2 plan and that even the direction of the lie of the property vastly differs therein?_ _(iv) Have not the courts below erred in not decreeing the suit for injunction atleast in respect of the rectangular portion after having found that the plaint schedule property takes in only the rectangular portion and not the triangular portion?”_ 5. Learned counsel appearing for the appellant pointed out that the courts below have not kept in mind the well settled principle that when there is a difference in the extent, survey number and boundaries, the boundaries should prevail. If that be so, according to the learned counsel the finding of the courts below are erroneous in law and on facts. 6. In support of his contention, he relied on the decisions reported in **Savarimuthu Nadar Chellayan Nadar v. Kanakku Kali Pillai Padmanabha Pillai** (1957 4 S.A.33/2000. K.L.T. 825) and **Krishnamurthi Iyer v. Janaki Amma** (1957 K.L.T. 886). 7. One have no quarrel with the propositions of law laid down in the decisions referred to above. The question is whether the said principle is applicable to the in the case on hand. One may have look at the document of title of the plaintiff, which is Ext.A1. The eastern boundary is shown as 'Kurian വക പറമ��”, that is the defendants' property. The defendants relied on Ext.B2 in support of their possession over the triangular portion of the property. Ext.B2 is an agreement for sale entered into by the defendants and the vendor of the plaintiff and others, whereby they have conveyed the triangular portion having an extent of 3 and ¼ cents to the defendants. 8. The main attack of the learned counsel for the appellant is that the said document is not binding on the plaintiff and he has obtained that extent of property also along with the rectangular portion. S.A.33/2000. 5 9. Ext.C3 commission report clearly shows that after considering the property that would have been taken for the road, the extent of property in the possession of the defendants comes to 11.208 cents. One must remember here that the total extent of property conveyed under Ext.A2 is 12 cents. The plaintiff has also no case that the triangular portion said to have been conveyed to the defendants is by any other document other than Ext.B2. There is also no case for the plaintiff that the defendants had any other property in the vicinity. 10. The triangular and the rectangular portion are lying in two different levels. As rightly pointed out by the lower appellate court if as a matter of fact the vendor of the plaintiff intended to convey both the properties, normally the property would have been described in two taks. One may here recollect that the extent of the property obtained by David as per Ext.A2 is 15 cents as could be seen from the document. It was thereafter by Ext. B2 he along with others had put the defendants in possession of three and odd S.A.33/2000. 6 cents. Naturally what is left with David was only 12 cents, that alone could have been conveyed by him. Apart from the difference in level between the rectangular and triangular portions, the evidence clearly shows that there was a kayyala separating the two properties. If as a matter of fact the triangular portion also belonged to the plaintiff, there could not have been a kayyala separating the two properties. Both the courts below have considered the evidence in considerable detail. When examined as P.W.1, the plaintiff admits that the plot owned by the defendants lies contiguous to his plot. It is also conceded by him that they are residing in a house put up in that property. He also admits that he had obtained only 12 cents of property and the property was measured at the time of conveyance. 11. The lower appellate court has also observed that even though the plaintiff has taken objection to the measurement, he has not been able to show that the measurement made by the commissioner is erroneous. Both the courts below have chosen to accept the commission S.A.33/2000. 7 report and plan and on that basis has come to the conclusion that the plaintiff has miserably failed to establish his title over the triangular portion of the property shown in the sketch. 12. The findings were arrived at on an evaluation of the evidence adduced in the case. No question of law, much less any substantial question of law, arises for consideration in this Second Appeal. This Second Appeal is without any merits and it is accordingly dismissed confirming the judgment and decree of the courts below. However, there will be no order as to costs. It is made clear that the issue regarding the title of the plaintiff is not considered in this second appeal at all. **P. BHAVADASAN, JUDGE** sb.