Sasidharan v. Soman Panicker and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 3[RD] DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 RSA NO. 12 OF 2007** **AGAINST THE JUDGMENT IN AS 26/2000 OF SUB COURT, NEYYATTINKARA OS 129/1995 OF II ADDITIONAL MUNSIFF COURT, NEYYATTINKARA** **-----** ## **- APPELLANT/RESPONDENT (IN AS NO.26/2000) APPELLANT (IN AS NO.30/2000/4TH DEFENDANT:** SASIDHARAN, S/O RAGHAVA PANICKER, PUNNAVILA ROADARIKATHU VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM. BY ADV SRI.BIJU BALAKRISHNAN ## **- RESPONDENTS/APPELLANTS (IN AS 26/2000) RESPONDENTS (IN AS NO.30/2000)/PLAINTIFFS & DEFENDANTS 1 TO 3:** |1|SOMAN PANICKER, S/O RAGHAVA PANICKER,| |---|---| ||PUNNAVILA PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL P.O., VIA| ||BALARAMAPURAM, THIRUVANANTHAPURAM.| |2|PRASANNAKUMARI, D/O.KANCHI AMMA,| ||PUNNAVILA PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL P.O., VIA.| ||BALARAMAPURAM, THIRUVANANTHAPURAM.| |3|CHANDRAMOHAN, S/O. RAGHAVA PANICKER,| ||PUNNAVILA PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL P.O., VIA.| ||BALARAMAPURAM, THIRUVANANTHAPURAM.| |4|KERALA STATE ELECTRICITY BOARD,| ||REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM.| |5|THE ASSISTANT ENGINEER,| ||K.S.E.B. BALARAMAPURAM.| **RSA NO. 12 OF 2007 -2-** 6 THE EXECUTIVE ENGINEER, K.S.E.B. NEYYATTINKARA. BY ADVS. SRI.A.R.DILEEP SRI.GEORGE VARGHESE PERUMPALLIKUTTIYIL SMT.KAVITHA GANGADHARAN SRI.RAJU JOSEPH SR. SMT.SURYA SASI SRI. ASOK M.CHERIYAN, SC, KSEB SRI.PULIKOOL ABUBACKER, SC, KSEB SRI.K.T.PAULOSE, SC, KSEB THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = =** **R. S. A. No.12 of 2007** **= = = = = = = = = = = = = = = = = = Dated this the 3[rd] day of November, 2022** ## **J U D G M E N T** This Regular Second Appeal is filed by the 4[th] defendant in a suit for declaration of title and possession, and fixation of boundary. The plaint schedule consists of several items of properties. Subject matter of this appeal is confined to item No.2 in the plaint 'C' schedule (for the sake of convenience hereinafter referred to as “the property”) and hence the discussions are confined to that. The suit, in so far as it related to the property, was dismissed by the trial court. The decree was reversed in appeal. 2. The plaintiff claims title over the property under Ext.A1 Settlement Deed dated 02.08.1989 executed in favour of his father. Subsequently, in the year 1995, as per Ext.B7, the father purported to cancel Ext.A1. This led to the suit. Pending the suit, as per Ext.B6 **R. S. A. No.12 of 2007** **==> picture [34 x 9] intentionally omitted <==** dated 07.07.1997, the property was purported to be conveyed in favour of the wife of the 4[th] defendant. 3. The trial court found that Ext.A1 Settlement Deed has taken effect and that Ext.B7 cancellation deed and Ext.B6 conveyance does not affect the title of the plaintiff. However, it was found that the property has not been properly identified. Accordingly, the suit, in so far as it relates to the property, was dismissed. The first appellate court concurred with the finding on the validity of Ext.A1 settlement deed. However, it found that the property has been properly identified by the Commissioner in Ext.C1(a) plan. Accordingly, decree was granted in respect of the property. It is aggrieved thereby that the 4[th] defendant has filed this appeal. 4. Heard learned counsel Sri.Biju Balakrishnan on behalf of the appellant and Sri.George Varghese Perumpallikuttiyil on behalf of the contesting respondents on the following substantial questions of law:- **R. S. A. No.12 of 2007** -: 3 :- “ _(i) Do Ext.B7 Cancellation Deed and Ext.B6 Sale Deed affect the title of the plaintiff under Ext.A1 Settlement Deed ?_ _(ii) Was the first appellate court right in interfering with the finding of the trial court on the question of identification of the property ?”_ 5. Ext.A1 Settlement Deed was executed on 02.08.1989. A reading of the recitals in Ext.A1 admits of no doubt that a right _in praesenti_ is created thereunder in favour of the plaintiff. Though the executant has reserved a right to take usufructs from the property during his life time, that will not in any manner affect the passing of title thereunder. Even under the said document, possession of a portion of the property has been handed over. The fact that the remaining portion of the property covered under Ext.A1 was not delivered to the donee consequent on the reservation regarding enjoyment of the property, will not defeat the vesting of title on the plaintiff _[_ _**see Renikuntala Rajamma v. K.**_ **R. S. A. No.12 of 2007** -: 4 :- _**Sarwanamma, 2014 (3) KLT 469 (SC)]**_ . Though the learned counsel for the appellant would try to canvass that the document in question is only a Will, as noticed supra, under the document right _in praesenti_ has been created. The donee was directed to effect mutation of the property and pay tax from the date of the document, and was directed to hold the property as his own. Therefore, the courts were right in having held that Ext.B7 cancellation and the subsequent sale Ext.B6, are of no avail, and does not affect the title created by Ext.A1. The courts were right in having held so. Substantial question of law No. _(i)_ is answered accordingly. 6. Coming to the issue of identity of the property, Ext.C1(a) is the Commissioner’s plan whereunder the properties have been identified. The main reason on which the trial court held that the identification under Ext.C1(a) plan is not proper is that, there is difference in the northern side measurement of the property of the 4[th] defendant-appellant as shown in the **R. S. A. No.12 of 2007** **==> picture [34 x 9] intentionally omitted <==** plan and the title deeds. Ext.B3 settlement deed is one of his title deeds. As per Ext.B3, the northern side measurement is “50 links”. So also, a small extent of property having 440 sq. links was given to the 4[th] defendant by the second defendant under Ext.B5 document. It was a conveyance executed pursuant to settlement of certain disputes between them. The northern side measurement of the said property is “8 links” as mentioned in Ext.B5. The said property adjoins the property obtained by the 4[th] defendant under Ext.B3. Therefore, the total length of the northern boundary should be “58 links”. However, in Ext.C1(a) plan the northern boundary measurement is shown as only “40 links”. It is for the said reason that the trial court held against the identification of the property done under Ext.C1(a) plan. But it was omitted to be brought to the notice of the Court that, the 4[th] defendantappellant as DW1 has, in his cross-examination, admitted that while the documents were executed the properties **R. S. A. No.12 of 2007** -: 6 :- were not measured. It was further suggested to him that the side measurements in the prior deeds were copied, to which he pleaded ignorance. Anyhow, it was admitted that the properties were not measured when the documents were executed. Therefore, the side measurements cannot be decisive. 7. The property is portion of a larger extent of 14 cents. Out of the same, the western most plot belongs to the second plaintiff under Ext.A10. To its east is the property of the 4[th] defendant-appellant which lies in an 'L' shape. At the north-eastern extremity of the 14 cents and within the arms of the 'L' shape is, the property, having an extent of 2 cents. The 4[th] defendant has obtained title to the property lying in the 'L' shape under three documents viz. Ext.B3 for an extent of 5 cents, Ext.A3 for an extent of 2 cents, and under Ext.B5 for an extent of 440 sq. links (approximately 5 cents.) There were some disputes between the second plaintiff and the appellant-the 4[th] defendant. The **R. S. A. No.12 of 2007** -: 7 :- disputes were settled and Ext.B5 was executed by the second plaintiff in favour of the 4[th] defendantappellant whereunder 440 sq. links (approximately 5 cents) were conveyed by him to the 4[th] defendant. However, it is seen that even after the said conveyance the second plaintiff is still in possession of 5 ½ cents. The extent possessed by the 4[th] defendant has a deficit of ½ cents. Whether the deficit in half cents has occurred from the western side is not known. The conveyance under Ext.A1 in favour of the plaintiff is in the year 1989. The conveyance under Ext.A3 in favour of the 4[th] defendant is in the year 1984. Therefore, if at all there is any deficit in extent, the donee under the earlier deed (Ext.A1) gets the benefit and the donee under the later deed Ext.A3 has to bear the deficit. Thus, viewed in any manner, the identification done under Ext.C1(a) relating to the property is correct. The first appellate court was right in having held that the property has been identified correctly in Ext.C1(a). **R. S. A. No.12 of 2007** -: 8 :- Substantial question of law No. _(ii)_ is answered accordingly. Thus, it is found that the findings of the appellate Court on the issues of title and identification are correct in law. Resultantly the Regular Second Appeal fails and is dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge