Sureesan s/o Kunju Krishnan v. Kunjena Velayudhan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932** ## **SA.No. 516 of 1997(C)** **--------------------------------** **AS.219/1996 of SUB COURT, NEDUMANGAD OS.162/1988 of ADDL.MUNSIFF COURT,NEDUMANGAD** **....................** ## **APPELLANT(S): APPELLANT/ADDITIONAL 4TH PLAINTIFF** **------------------------------------------------------------------------------------** **SUREESAN S/O.KUNJU KRISHNAN, SREE NARAYANA VILASOM HOUSE, ARUVIPPURAM, AYAYIL, PERUMKADA VILA VILLAGE NEYYATTINKARA TALUK. REPRESENTED BY POWER OF ATTORNEY HOLDER SOMASEKHARAN.** **BY ADVS. SRI.K.V.SOHAN SRI.CIBI THOMAS** ## **RESPONDENT(S): RESPONDENTS/ DEFENDANTS 1 TO 4 AND 6 TO 13)** **----------------------------------------------------------------------------------------------------(THE 12TH RESPONDENT WHO IS THE ADDITIONAL 13TH DEFENDANT IS A MINOR REPRESENTED BY GUARDIAN THE 11TH RESPONDENT).** - ***1. KUNJENA VELAYUDHAN, KANNERUVILAKATHU VEEDU, ETTIRUTHI MURI, KULATHUMMAL VILLAGE.* (DIED).** - ****2. LEKSHMI KAMALAMMA, OF DO.DO.** **3. VELAYUDHAN SURENDRAN OF DO. DO.** **4. VELAYUDHAN CHANDRAN OF DO. DO.** **5. VELAYUDHAN JAYAN OF DO. DO.** **6. VELAYUDHAN JAYENDRAN OF DO. DO.** **7. KAMALAMMA PREMALATHA OF DO. DO.** **8. KAMALAMMA USHAKUMARI OF DO. DO.** **tss** ## **S.A. NO.516/1997** ## **9. KRISHNA PILLAI, RAMACHANDRAN NAIR, RAMA NILAYAM OF DO. DO.** ## **10. AMMUKUTTY AMMA PADMAKUMARI OF DO. DO.** **11. ANITHA KANNERUVILAKATHU VEEDU, OF DO. DO.** **12. ANJU OF DO. DO. (MINOR BY GUARDIAN 11TH RESPONDENT).** ***RESPONDENTS 3 TO 9 , 11 AND 12 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED IST RESPONDENT, KUNJENA VELAYUDHAN AS PER ORDER DTD. 27.10.1998 IN CMP. 2319/1998.** ****R3 TO R8 ARE RECORDED AS THE LRS OF THE DECEASED R2 VIDE ORDER DTD. 2.1.02 ON CMP. 2264/2001.** **R2 TO R4 BY ADVS. SRI.G.S.REGHUNATH,** **SRI.MOHAN JACOB GEORGE.** **R5,9 TO11 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE R5,9 TO 11 BY ADV. SRI.P.B.KRISHNAN R6 TO R8 BY ADVS. SRI.G.UNNIKRISHNON, SRI.G.P.SHINOD.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2011, ALONG WITH SA NO. 518 OF 1997 THE COURT ON 18/03/2011 DELIVERED THE FOLLOWING:** **tss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos. 516 & 518 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of March, 2011. ## **JUDGMENT** Two suits, namely O.S.162 of 1988 and O.S.400 of 1985 were tried separately and disposed of by separate judgments. Appeals against the decrees of the said suits were jointly heard and disposed of by a common judgment. It is not in dispute that the issue involved in both the suits are almost the same and the decision in one suit will have bearing on the other. Counsel on both sides agreed that it is only necessary to refer the parties and facts in O.S. 162 of 1988 from which S.A.516 of 1997 arises. It is agreed by both sides that the fate of S.A.516 of 1997 will determine the fate of S.A.518 of 1997 arising from O.S.400 of 1985. In both the appeals, plaintiffs are the appellants. 2. The issues in both the suits fall within a narrow compass. It is regarding the identity of the property obtained by Padmanabha Pillai, which is A schedule to S.A.516 & 518/1997. 2 Ext.A2 partition deed dated 2.12.1957, a partition effected by the members of Bhagavathipurathu tarwad, to which the properties were originally belonged. On the same day, the first defendant in O.S. 162 of 1988 purchased the property obtained by Padmanabha Pillai as per Ext.A2. The properties were outstanding on a mortgage. 3. In O.S. 162 of 1988 the extent of the property involved is 35 cents in Re.Sy. No. 843/1, which is item No.1 in E schedule to Ext.A2 partition. In O.S. 400 of 1985 the extent involved is 15 cents in Sy. No.843/1, which is item No.3 to B schedule in Ext.A2. The properties in the said two suits were purchased by the respective plaintiffs from the other sharers under Ext.A2. The allegation is that after obtaining jenm right over A schedule in Ext.A2, by means of Ext.A6, the first and second defendants redeemed the property mortgaged as per the decree in O.S.212 of 1962. In Ext.A2 partition, E schedule and B schedule were set apart to other sharers and not to defendants 1 and 2. The other defendants were claiming under defendants 1 and 2. The S.A.516 & 518/1997. 3 plaintiff in the respective suits claimed that they are entitled to recover the property and redeem the mortgage. 4. Defendants 1 and 2 resisted the suit by pointing out that the plaintiffs had no manner of right over the suit property. The total extent of the property comprised in Sy. No.843/1 was 95 cents of land, which is situated on the northern side of Kanneerupurayidom. 71cents was purchased from Padmanabha Pillai by the first defendant, who was allotted A schedule as per Ext.A2. He filed O.S.212 of 1962 for redemption of mortgage. He was able to redeem 43 cents of land. Thereafter the defendants in the said suit inducted one Chandrakumar into possession. He filed O.S. 143 of 1981 obstructing the delivery of the property to the first defendant. Thereafter the appellant's husband Somasekharan had filed O.S. 223 of 1985. Both the suits were dismissed. Thereafter O.S. 256 of 1985 was filed for the very same purpose and that was also dismissed. Issues in all these suits were identical as in O.S. 212 of 1962, where the very same dispute was raised regarding the S.A.516 & 518/1997. 4 identity of the property covered by Ext.A2 document. The court went into the questions elaborately and settled the issues. May be that as the plaintiff's were not parties to those suits, it may not strictly bind them. But those decisions cannot be ignored. After having lost the various suits, those persons have assigned the properties to the plaintiffs, who have laid the present suits. The present suits are test cases. The plaintiffs have no manner of right over the suit property and the suits are only to be dismissed. 5. Some of the defendants supported the first and second defendants. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A8 from the side of the plaintiffs in O.S.162 of 1988. The defendants had D.Ws.1 to 4 examined and Exts.B1 to B15 marked. Exts.C1 and C1(a) are the commission report and plan. After an elaborate consideration of the issues involved in the suit, the trial court came to the conclusion that the plaintiffs have failed to S.A.516 & 518/1997. 5 establish their title to the suit property and dismissed the suits. The other suit, namely, O.S.400 of 1985 also met with the same fate. A.S. 219 of 1996 was filed against the judgment and decree in O.S.162 of 1988 and A.S. 178 of 1996 was filed against the judgment and decree in O.S. 400 of 1985. As already stated, the lower appellate court heard both the appeals together and dismissed both the appeals. 6. In these Second Appeals notice is seen issued on the following questions of law: _“i) When the courts have found that the boundary descriptions in a document are not correct can description of boundaries be given predominance to identify property?_ _ii) When Survey Number and name of the property is given importance in executing deed will not those descriptions prevail over the boundary description?_ _iii) When two appeals were heard together and there is a commission report and plan unchallenged, identified the properties confirm the subject matter of the 2 appeals cannot that be_ 6 S.A.516 & 518/1997. _relied on to find the identity of the property and to hold that suit properties are identified._ _iv) When the suits have been tried differently and separately can appeals there from be heard and disposed of by a common judgment?_ _v) If appeals arising from 2 suits tried separately are head together and the properties involved in both the suits have been identified in plan and report which is unchallenged was not the court bound to accept that plan and report in deciding the suit.”_ 7. All the parties trace their title to Ext.A2 document, which is a partition deed among the members of Bhagavatheepurathu tarward, to which the property was originally belonged. Padmanabha Pillai, a member of the tarwad was allotted A schedule item No.2, 59 cents in Sy. No.908/1 out of 1.09 acres and 1.27 acres in Sy. No.861/2. Going by Ext.A2 document, he was not allotted any property in Sy. No.843/1. B, E, F, H schedule share holders in Ext.A2 were allotted various extents in Sy. Nos. 843/1. The first S.A.516 & 518/1997. 7 defendant, according to the plaintiffs, was closely associated with the family, and on the same day of Ext.A2, as per Ext.A6 the first defendant purchased A schedule property allotted to Padmanabha Pillai as A schedule. While drawing up Ext.A6 document, according to the plaintiffs, the first and second defendants clandestinely interchanged items 1 and 2 in A schedule in Ext.A2. Going by Ext.A6 item No.1 is 59 cents, which was comprised in Sy. No.843/1, which is not taken in by Ext.A2. It is therefore contended that by virtue of Ext.A6 document, defendants 1 and 2 and others claiming under them cannot have right over any extent of property in Sy. No.843/1. At best what the first and second defendants could contend was that they had redeemed the mortgage. The case of the plaintiffs is that they are willing to redeem the mortgage and they want recovery of possession of the property. 8. The case of the plaintiffs is met by the defendants by pointing out that there is no basis for the claim that the identity of the property is not established. S.A.516 & 518/1997. 8 The very same issue was the subject matter of O.S.216 of 1962. That went against the plaintiffs in that suit and in favour of the defendants herein. There were appeal in that suit as A.S. 255 of 1965 and 298 of 1965. The appeals were disposed of by a common judgment, which is marked as Ext.B9. The issue as to whether defendants 1 and 2 in the present suit by virtue of Exts.A2 and A6 had derived any portion of the property in Sy. No.843/1 was considered in exteso in the said suit and appeals and finally it was found that item No.1 in Ext.A2 is actually in Sy. No. 843/1 and not in Sy. No.908/2. The present suits seek to agitate the same issue. The only difference is that parties are different. But there is a conclusive finding in the earlier proceedings that item No.1 in A schedule to Ext.A2 is comprised in Sy. No.843/1 and that cannot be re-agitated. Ext.B9 has become final. 9. The issue therefore is whether defendants 1 and 2 derived any property comprised in Sy. No.843/1 as per Ext.A6 assignment deed, which the first defendant obtained S.A.516 & 518/1997. 9 from Padmanabha Pillai on the very same day on which Ext.A2 was executed. The plaintiffs have necessarily to establish their title to the respective properties and that they are entitled to recover the same. The plaintiff in O.S.400 of 1985 traces title to Ext.A1 dated 26.7.1985 in that suit, which was executed by one Parameswaran Nair, who inherited from his father Ramakrishna Pillai, who is an allottee under Ext.A2. The property so obtained by him is item No.2 to Ext.A2 having an extent of 15 cents in Sy. No.843/1. 10. The trial court in O.S.400 of 1985 found that the title traced by the plaintiff is defective. The trial court found that both the assignees in O.S.400 of 1985 and O.S.162 of 1988 trace their title to Ext.A2. 11. It will be first useful to ascertain the property transferred to defendants 1 and 2 by Ext.A6 by Padmanabha Pillai, who got it under Ext.A2. One fact may be noticed at the outset itself. Sy. No.843/1 has only a total extent of 95 cents. The commission report Ext.C1 says that as per the S.A.516 & 518/1997. 10 revenue records also Sy.No.843/1 has 95 cents. According to the report, Sy. No.843/2 has 5 cents and 843/3 has 11 cents. On measurement the extent of property in Sy. No.843/1 was found to be 95 cents. The extent available in Sy. No.843/2 was found to be 4 cents and in 843/3 the extent was 14 cents, thereby Sy. No.843 has a total extent of 1.13 acres. The property comprised in Sy.No.843 is shown as ABCFGHIJPON and 95 cents in Sy.No.843/1 is shown as BCFGHIJKM. 15 cents on the south-eastern portion is located as BDLM and the 35 cents is located as DEJKL. The commission report would say that item No.2 in Ext.A2 is in Sy. No. 861 on the southern side of the road. That survey number had a total extent of 1.54 acres and that is located as QRSTUVXYZ. The extent covered by Ext.A2 is located as STUVXYZ. 12. The dispute is regarding the location of the property of the respondent covered by Ext.A2. The case of the contesting defendant is that item No.1 in A schedule to Ext.A2 is actually in Sy. No.843/1 and that can be seen from S.A.516 & 518/1997. 11 the description of the boundaries of the property. They have been holding the property from 1957 onwards and no one had ever challenged their right over the suit property. In case of any doubt regarding the survey number or the extent, it is well settled that the boundaries will prevail. 13. Learned counsel appearing for the appellant pointed out that if the case put forward by the first and second defendants is true, they ought to have sought for execution of a rectification deed to have the records set right. Deliberately defendants 1 and 2 have exchanged items 1 and 2 in A schedule to Ext.A2 document while getting Ext.A6 executed. Learned counsel would emphasize that this is a typical case where the principle boundary should prevail cannot be applied. Learned counsel in support of his contention relied on the decision reported in **Savithri Ammal v. Padmavathi Amma** (1990(1) K.L.T. 187). According to the learned counsel, it is the survey number, which is to be given predominance in the present case. S.A.516 & 518/1997. 12 14. On a reading of the decisions reported in **Krishnan v. Mathai** (1957 K.L.T. 42) and **Savithri Ammal v. Padmavathi Amma** (1990(1) K.L.T. 187) it is seen that the general principle regarding the aspects to be determined in ascertaining the identity of the property has been laid down in these decisions. Generally, the decisions say that, the properties are determined with reference to the boundaries. But that is not an inflexible rule. One has to ascertain the intention of the parties. That is, to ascertain what exactly was intended to be conveyed. It may be that in some cases, the boundaries may have to be considered and in some cases the extent or other factors as the case may be. 15. Both the courts below have found that in both the suits, the respective plaint schedule property differ from what is described in Ext.A2. No satisfactory explanation has been offered by the plaintiffs for the difference in extent. It is sad that Exts.C1 and C1(a) are not of much help in this regard. The report simply mentioned about certain S.A.516 & 518/1997. 13 properties. The commissioner has not actually identified the properties. 16. Both the courts below attempted to identify the respective properties and found that the document of title relied on by the respective plaintiffs contained entirely different boundaries than what is stated in Ext.A2. It is true that there is a shifting of item No.2 as item No.1 and item No.1 as item No.2 in Ext.A6 when compared with Ext.A2. Both the courts below have noticed this fact but then refers to the boundaries in the documents have come to the conclusion that actually the property that was sought to be conveyed as per A schedule itemNo.1 in Ext.A2 is comprised in Sy. No. 843/1 and that the survey number 908/1 is a mistake. The reasons given by both the courts below to arrive at the said conclusion are cogent, convincing and stand to reason. The courts below have also found that as far as the document of title relied on by the plaintiffs are concerned, only the survey number tally and all other factors differ. S.A.516 & 518/1997. 14 17. One of the contentions taken is that going by A schedule in Ext.A2 only 59 cents is given as per item No.1 of Ext.A2. Therefore even assuming that the property is comprised in Sy. No.843/1 the defendant is entitled to only 59 cents. 18. Here one has to remember that it is the plaintiffs who have come forward with a suit based on title. Merely because there is some weakness in the defence case, that will not improve the case of the plaintiffs. The burden is entirely on him to establish title to the suit property and got it properly identified and that has not been done. 19. It is unnecessary for this court to undertake the exercise of identification of the suit properties covered by Exts.A2 and A6 because that had already been done by the trial court and the lower appellate court independently. Both had come to an identical conclusion. Apart from the above fact, there is yet another aspect. The very issue was agitated in O.S.212 of 1962, which was disposed of by Ext.B9 dated 4.7.1970. It was found in that suit that the 15 S.A.516 & 518/1997. property obtained by Padmanabha Pillai as item No.1 to A schedule to Ext.A2 is only in Sy. No.843/1. In fact the decision was arrived at in appeal from the suit, which was disposed of by judgment dated 4.7.1970. It will be useful to refer to the relevant aspects in the said judgment. A reading of the judgment in A.S. Nos. 255 of 1965 and 298 of 1965, which arose from O.S.212 of 1962 show that identical issue was considered in that suit also. It was found that Ext.A2 partition deed has been accepted by all the sharers and had been acted upon. Paragraph 13 of Ext.B9 refers to the property allotted to Padmanabha Pillai. It is observed that on the face of it it is clear that B schedule item No.2 in the said suit is not included in the A schedule if one goes by the survey number. It was pointed out in the said suit that statements in Ext.A2 regarding various aspects are not fully incorrect. The specific contention was that inspite of Sy. No.843/1 in item No.1 of A schedule to Ext.A2 the survey number was shown as 908. The appellate court as per Ext.B9 found that the property in Sy. No.843/1 has a total S.A.516 & 518/1997. 16 extent of 1.09 acres. The appellate court in Ext.B9 observed that if one goes by the survey number alone, the question is who takes D, E, F and G schedule. But the lower appellate court was of the view that, that cannot determine the issue in the case. The court found that the name of the properties comprised in Sy. No.843/1 and 908 is the same. Ultimately it was found that Sy. No. 908/2 shown in item No.1 in A schedule to Ext.A2 was a mistake and the property was really comprised in Sy. No.843/1. 20. It could thus be seen that in the three independent proceedings, it has been found that the survey number shown as 908/2 in A schedule item No.1 of Ext.A2, which was alloted to Padmanabha Pillai was a mistake and the property was actually comprised in Sy. No.843/1. It is unnecessary for this court to undertake the same exercise, for, it has been concluded by the finding of three courts, which concurrently found that there was a mistake in the mentioning of the survey number as regards item No.1 in A schedule to Ext.A2. Apart from the above fact, the finding is S.A.516 & 518/1997. 17 essentially one of fact based on appreciation of evidence in the case and there is nothing to show that there has been a misreading or mis-appreciation of the evidence resulting in perverse finding. No substantial question of law arises for consideration in these appeals and they are accordingly dismissed. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.