IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR
THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929
RSA.No. 93 of 2008()
-------------------AS.35/2003 of I ADDL.SUB COURT,TRIVANDRUM OS.1574/1999 of III ADDL.M.C.,TRIVANDRUM ....................
APPELLANT/1ST APPELLANT/1ST PLAINTIFF
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T.P.MOHAMMED ALIAS BABU S/O.PAREED HAJI, RESIDING AT T.C.11/507, KUNNUKUZHI, VARCHIYOOR VILLAGE THIRUVANANTHAPURAM.
BY ADV. SRI.S.VINOD BHAT
RESPONDENTS:
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MOHAN JOHN MATHEW,S/O.,Y.W.MATHEW MEDICAL PRACTITIONER, RESIDING AT NO.51 VRINDAVAN HOUSING COLONY,PATTOM, THIRUVANANTHAPURAM.
BY
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **M.SASIDHARAN NAMBIAR,J.**
=========================== R.S.A. NO. 93 OF 2008 ===========================
Dated this the 13[th] day of March, 2008
## JUDGMENT
First plaintiff in O.S.1574/1999 on the file of
Munsiff Court, Thiruvananthapuram is the appellant. Respondent is the defendant. Second plaintiff died subsequent to the disposal of the first appeal. Appellant along with deceased second plaintiff instituted the suit for declaration of title and putting up boundary. The plaint schedule property admittedly originally belonged to Elezebath Thomas. She has two daughters Victoria Mathew and Emily Daniel. Under Ext.B1, property was given to Emily Daniel. Earlier under Ext.B2 property was given to Victoria Mathew. The property obtained by Emily Daniel under Ext.B1 was purchased by the second plaintiff. What is contended by the appellant was that out of 19 cents available with Elezabath Thomas, 4 cents was acquired for drainage and road and the balance 15 cents was obtained by Emily
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Daniel under Ext.B1 and it was purchased by second plaintiff under Ext.A1 and subsequently under Ext.A2 partition deed, that property was divided and the eastern 5.132 cents was allotted to the sister of appellant and the western 9.868 cents is allotted to the appellant and appellant is in possession of the said property. Plaint schedule property is claimed to be that 9.868 cents. Contending that respondent has no right over the same, appellant sought a decree for declaration of title and fixation of boundary of the said property. Respondent resisted the suit contending that after Ext.B2 transfer, Elizabath Thomas was not having 19 cents in her possession and the property given to Emily Daniel is only the property covered under the side measurements and it is not an extent of 15 cents and appellant has no title to the plaint schedule property and the property which could be divided under Ext.A2 is only a lesser extent.
2. The trial court on the evidence of Pws.1 to
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3, DW1, Exts.A1 to A4, B1 to B3, Exts.C1 to C2(a) found that before Ext.B1, Elizabath Thomas transferred 19 cents of the property covered under Ext.B2 sale deed in 1097 M.E to Victoria Mathew and only the balance extent available with Elizabath Thomas was assigned under Ext.B1. When Ext.B2 shows the extent of the property transferred, Ext.B1 only shows the side measurements of the property. If the extent of the property is fixed with reference to the side measurement, it could only be 12.990 cents and not 15 cents. So under Ext.A2 15 cents cannot be divided between the appellant and second plaintiff. If that be so, appellant cannot claim title to 9.868 cents which is the plaint schedule property and so the boundary cannot be the one as shown by the Commissioner in Ext.C2(a) plan. On these findings trial court dismissed the suit. Appellant along with second plaintiff challenged the judgment before Sub Court, Thiruvananthapuram in A.S.35/2003. Learned Sub Judge on reappreciation
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of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal.
3. Learned counsel appearing for appellant was
heard.
4. The argument of the learned counsel is that when there is difference in the extent and side measurements, courts below should not have fixed the property with reference to the side measurements and instead should have been fixed with reference to the extent shown in Exts.A1 and A2 and if so plaint schedule property as fixed by the Commissioner in Ext.C2(a) plan should have been upheld. Learned counsel relied on the decision of a Division Bench of this Court in **Savithri Ammal v.**
**Padmavathi Amma (1990(1) KLT 187)** and argued that it is not the principle that property could be fixed only with reference to the side measurements and there is no invariable rule in this regard and the criterion which is least likely to have been
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mistaken in the document is to be preferred. It was argued that when Ext.A1 shows that the property transferred is 15 cents, courts below should have upheld the title of appellant to the plaint schedule property and a decree should have been granted. Learned counsel also argued that though
respondent claimed right over the western portion of the plaint schedule property, his title deed was not produced and though Ext.B2 was produced, no supporting document to trace out the title of the respondent was produced and without producing the
title deed, respondent is not entitled to dispute the identity of the plaint schedule property as
demarcated by the Commissioner and therefore a decree should have been granted.
5. On hearing the learned counsel, I do not
find that any substantial question of law is involved in the appeal.
6. True, there is no invariable rule that a
particular mode has to be adopted to fix the property when there is dispute with regard to the
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extent, boundary or side measurements in a document. The principle is that when one of the description is vague and uncertain and another description is definite and certain, the latter is to be preferred. Similarly if none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertantly must be preferred, if it is sufficiently identifies the subject matter of the transaction. The other descriptions must be rejected as erroneous or inaccurate.
7. If the property covered under Ext.A1 could
be fixed with reference to the boundaries and such identification is more certain and stable and least likely to have been mistaken then the property could be fixed with reference to the boundaries or extent as canvassed by learned counsel appearing for appellant. Admittedly the property covered under Ext.A1 sale deed is the property obtained under Ext.B1. The property covered under Ext.B1 is
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the property which lies to the east of the property covered under Ext.B2. When the western boundary of the property covered under Ext.A1 is the property in the possession of the respondent and not any physical boundary, property cannot be fixed with reference to the boundary. Even if the western boundary is further east or west of the western boundary fixed by Commissioner, it will be the
property of respondent.
8. It is admitted case that before Ext.B1,
Elizebath Thomas transferred 19 cents covered under Ext.B2 in 1097 M.E to Victoria Mathew. Subsequently the remaining property was transferred under Ext.B1 gift deed. When Ext.B2 shows that the property is described with reference to side measurements and extent, Ext.B1 shows that property is described only in side measurements and not by extent. What could be claimed under Ext.B1 is only the property, excluding the property covered under Ext.B2. When the second plaintiff purchased the property under Ext.A1, apart from side
## R.S.A.93/08
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measurements extent was shown as 15 cents stating that out of 19 cents obtained under Ext.B1 4 cents was lost for drainage and road and it is the balance. When Ext.B1 does not provide the extent obtained by the donee, appellant who claims under that donee cannot claim that the mistake is with regard to the side measurements and the extent is correct. It cannot be disputed that if the property is identified with reference to the side measurements given in Ext.B1 and A1 the extent cannot be 15 cents as claimed by appellant but only 12.990 cents. The evidence of PW2 the Commissioner establishes that fact.
9. Though learned counsel argued that the identification made by the Commissioner in Ext.C2 plan is to be accepted, Ext.C1 report does not show that on what basis the Commissioner fixed the property. When the property obtained under Ext.A1 is the same which was originally obtained under Ext.B1 and Ext.B1 does not show the extent of the property, the property covered under Ext.B1 as
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well as Ext.A1 cannot be fixed with reference to the extent as sought for by the learned counsel. The property can only be fixed with reference to the side measurements. It is more so when the property covered under Ext.B2 was transferred first and what was transferred under Ext.B1 is the property which was left behind with the donor and Ext.B1 does not describe the property transferred in extent. Therefore I cannot accept the argument of the learned counsel that the property covered under Ext.A1 is to be fixed with reference to the extent and not the side measurements. Moreover, when the appellant sought to fix the property based on the title deed and did not set up a case in the plaint that the side measurements shown in Ext.A1 is not correct and the property is correctly shown by extent, appellant cannot be heard to contend that property is to be fixed not with reference to the side measurements but with reference to the extent. It is more so, when the right obtained under Ext.A1 is the right which was obtained by the
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donee under Ext.B1 and the property is described in Ext.B1 only by the side measurements. The appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR JUDGE
tpl/-
## M.SASIDHARAN NAMBIAR, J.
--------------------W.P.(C).NO. /06 ---------------------
JUDGMENT
SEPTEMBER,2006
