Velayudhan Das v. Velayudhan Omana and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 23[RD] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943 RSA NO. 384 OF 2007 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 31.08.2006 IN AS 197/2005 OF ADDITIONAL DISTRICT COURT (ADHOC-I), ERNAKULAM AGAINST THE DECREE AND JUDGMENT DATED 31.01.2005 IN OS 7/1992 OF SUB COURT, MUVATTUPUZHA ``` ## **`APPELLANT/1ST RESPONDENT/1ST DEFENDANT:`** ``` VELAYUDHAN DAS, AGED 58 YEARS, S/O.VELAYUDHAN, KADAYATH HOUSE, KEERAMPARA P.O., KOTHAMANGALAM. ``` ``` BY ADVS. SRI.G.JAYASANKAR SRI.AJU MATHEW SRI.P.VISWANATHAN SRI.AJITH VISWANATHAN ``` ## **`RESPONDENTS/APPELLANT AND 2ND RESPONDENT/PLAINTIFF AND 2ND DEFENDANT:`** ``` 1VELAYUDHAN OMANA, AGED 50 YEARS, W/O.SASI, KALARICKAL HOUSE, VELLATHOOVAL P.O.,, IDUKKI DISTRICT. ``` ``` 2STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. ``` ``` BY ADVS. SRI.T.I.ABDUL SALAM SRI.C.K.VIDYASAGAR SMT. PREETHA K.K. (Sr.Gp) ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO.384 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No.384 of 2007 --------------------------------------------- Dated this the 23[rd] day of February, 2022 ## **JUDGMENT** Defendant No.1 in O.S.No.7/1992 on the file of the Subordinate Judge's Court, Muvatupuzha is the appellant. The plaintiff and defendant No.2, the State, are the respondents. 2. Material facts relevant for the adjudication of this appeal are as follows:- 2.1. The plaintiff and defendant No.1 are siblings. The plaint schedule property is part of a larger extent of land partitioned as per deed No.403/1965 of Kothamangalam SRO (Ext.A1). The plaintiff was allotted 'G' schedule property having an extent of 2 Acres in Sy.No.550/1/17/7. 'D' schedule property having an extent of 3 Acres in Ext.A1 was allotted to defendant No.1. 2.2. Plaint schedule item No.1 property is 1 Acre and 32.50 cents of land out of the 2 Acres allotted to the plaintiff as per Ext.A1 partition deed. The rest of the ``` RSA NO.384 of 2007 ``` ``` 3 ``` property was acquired by the Government for the Periyar Valley Irrigation Project. The property acquired by the Government is the western portion of the 2 acres of land. The property acquired by the Government is described in the plaint as item No.2 property. 2.3. At the time of partition, the plaintiff was aged only 8 years. The father of the parties was in possession of the property till 1978. Thereafter, defendant No.1 was managing the property for and on behalf of the plaintiff. In 1987, defendant No.1 trespassed into the plaint schedule item No.1 property and destroyed the boundary separating it from the property of defendant No.1. The plaintiff, therefore instituted the Original Suit for declaring her title over the property, for recovery of possession, fixation of boundaries and other consequential reliefs. 2.4. Defendant No.1 resisted the suit, contending that he is in possession of the property. He further contended that he is in possession of the properties of other siblings also. Defendant No.1 denied the averments regarding trespass. He also raised the contention that he has perfected title over plaint item No.1 property by way of adverse possession and limitation. According to ``` RSA NO.384 of 2007 ``` ``` 4 ``` defendant No.1, the properties covered by Ext.A1, including the plaint schedule property, are lying contiguously and the properties were never measured. 3. The parties went to trial. PWs 1 and 2 were examined and Ext.A1 was marked on the side of the plaintiff. DWs 1 to 3 were examined and Ext.B1 was marked on the side of the defendants. Exts. C1 to C3 were marked as Court Exhibits. Ext.X1 was marked as third party Exhibit. 4. The Trial Court dismissed the suit, holding that the plaintiff failed to establish the identity of plaint schedule item No.1 property. The plaintiff challenged the decree and judgment, filing A.S.No.197/2005. The First Appellate Court reversed the judgment and decree of the Trial Court, holding that the plaint schedule property is identifiable and the plaintiff is entitled to the reliefs prayed for in the suit. 5. Defendant No.1 is in appeal before this Court under Section 100 of the CPC. 6. On 18.07.2007, this Court admitted the appeal on the following substantial question of law: “Whether the First Appellate Court was ``` RSA NO.384 of 2007 ``` ``` 5 ``` justified in granting a decree fixing the boundaries with reference to Ext.C3(a) plan, when the boundaries of plaint schedule property as identified by the Commissioner in Ext.C3(a) plan do not tally either with the boundaries shown in the plaint or in Ext.A1 partition deed.” 7. Heard Sri.Ajith Viswanathan, the learned counsel appearing for the appellant/defendant No.1., Sri.C.K.Vidyasagar, the learned counsel appearing for respondent No.1/plaintiff and the learned Government Pleader appearing for respondent No.2. 8. The short question that falls for consideration is whether the plaintiff could establish the identity of plaint item No.1 property. The learned counsel appearing for the appellant/defendant No.1 contended that the boundaries of the plaint schedule property as described in the partition deed do not tally with the boundaries as described in the plaint and the one identified and noted by the Commissioner in Ext.C3(a) plan. 9. _Per contra_ , the learned counsel for the respondent No.1/plaintiff contended that there are only minor discrepancies in the description of the property in ``` RSA NO.384 of 2007 ``` ``` 6 ``` Ext.A1, the plaint and in Ext.C3(a) plan. 10. The plaint schedule property is described as 'G' schedule in Ext.A1. As per the descriptions in the partition deed, the property allotted to Smt. Sarojini, lies in the east. 'F' schedule property lies on the south. The property of Thayyil Anthrayose, comprised in Sy.No.545/1/1 lies on the north and west. Defendant No.1 was allotted 'D' schedule as per Ext.A1. The description shows that he has property on the immediate north of the 'G' schedule allotted to the plaintiff. 11. The plaintiff described plaint item No.1 as being bounded by properties of defendant No.1 on the south, east and north and the property acquired by the Government on the west. 12. The Trial Court held that the southern boundary of 'G' schedule in Ext.A1 allotted to the plaintiff is the property of Anthrayose Thayyil, which does not tally with the boundary noted by the Commissioner in Ext.C3(a) plan and hence, the plaintiff failed to establish the identity of the plaint item No.1 property. 13. The First Appellate Court relied on the oral evidence of PW2 corroborated by Ext.C3(a) plan and report ``` RSA NO.384 of 2007 ``` ``` 7 ``` to record the finding that the plaintiff could establish the identity of the plaint schedule property. PW2, the Commissioner gave evidence that with the assistance of the Taluk Surveyor, he measured the entire properties based on the original survey plan, litho plan and Ext.A1 partition deed. He added that reliance was placed on the revised records and plans prepared in the land acquisition case, which relates to the acquisition of a part of the property involved for the Periyar Valley Irrigation Project. PW2 gave evidence that when the properties were measured as per the land acquisition records, it tallied with the area and extent. According to PW2, the properties mentioned in D,F,G and H schedule in Ext.A1 partition deed are lying contiguously. He stated that 'G' schedule in Ext.A1 lies in Sy Nos.556/1/7/7, 556/1/7/2, 556/1/7/3, 556/1/7/13 and 556/1/7/15 and out of these properties, the properties lying in sub-division numbers 13 and 15 were acquired for the Periyar Valley Irrigation Project. The First Appellate Court relied on the recitals in Ext.A1 to the effect that, if there were any mistakes in the survey, sub-division numbers etc., the property should be enjoyed and possessed by the parties as per the lie and boundaries. Based on these recitals, the First Appellate Court inferred ``` RSA NO.384 of 2007 ``` ``` 8 ``` that there could be some mistakes in the sub-division numbers and survey numbers noted in Ext.A1. In Ext.C3(a) plan, the Commissioner had shown plaint schedule item Nos.1 and 2 within ‘orange’ shade. It is further stated by the Commissioner in Ext.C3 report that D, F, G and H schedule properties in Ext.A1 partition deed lie contiguously and the properties lying on the western side of D, H and G schedule were acquired by the Government for Periyar Valley Irrigation Project. The entire portion in 'D' schedule is shown in yellow shade in Ext.C3(a) plan by the Commissioner. The portions of property in 'F' and 'H' schedule, including the acquired land, are shown in green shade in Ext.C3(a) plan. The property allotted to the plaintiff, including the acquired land, is shown in Ext.C3(a) plan in ‘orange’ shade. 14. The acquired land takes in plot Nos. 15 and 13. The remaining plots bearing Nos.1 2, 3 and 7 in the ‘orange’ shaded portion is plaint item No.1, the property having an extent of 1 Acre 32.50 cents of land. The eastern and northern boundaries of 'G' schedule in Ext.A1 perfectly tallies with the properties identified by the Commissioner. The learned counsel for the appellant/defendant No.1 contended that the property as described in the plaint does ``` RSA NO.384 of 2007 ``` ``` 9 ``` not tally with the descriptions in Ext.A1. The learned counsel also contended that the southern boundary is not at all getting tallied with the description in Ext.A1. 15. The learned counsel for the plaintiff/respondent No.1 contended that the plaintiff described the southern and eastern boundaries of the plaint schedule property as the property of defendant No.1, since he had purchased that property from the sisters of the plaintiff. The learned counsel for the plaintiff also relied on the admission of defendant No.1 (DW1) in the deposition to the effect that he had property on the north, east and south. 16. Going by the admissions of the defendants it is to be inferred that the descriptions of the plaint schedule property tally with Ext.C3(a) plan. 17. Relying on **Balakrishna Kammathi v. Ganesh Pai [1954 KHC 82]** , the learned counsel for the appellant/defendant No.1 contended that in case of conflict between boundaries and extent, the former should prevail. When we examine the evidence of the Commissioner and the admissions of defendant No.1, in the light of the principles deduced in the abovesaid decision, the conclusions arrived at by the First Appellate Court cannot ``` RSA NO.384 of 2007 ``` ``` 10 ``` be disturbed. It is true that there are deficiencies in the pleadings in the plaint regarding the description of the property. The Trial Court as well as the First Appellate Court found that the plaintiff has acquired title over the plaint schedule property as per Ext.A1. The claim of defendant No.1 by way of adverse possession was repelled by the Courts below. In **Raju V.Vayalat v. Aliyar [2016 KHC** **6773]** , the Apex Court held that the party should not be deprived of the property right based on certain deficiencies in the pleadings. 18. Going through the entire materials placed before the Court, this Court finds that the plaintiff could establish the identity of the plaint schedule property with reference to Ext.C3(a) plan. The substantial question of law is answered accordingly against the appellant/defendant No.1. The Regular Second Appeal is dismissed. The parties are directed to bear their respective costs. Pending interlocutory applications, if any, stand closed. ``` Sd/- K.BABU JUDGE ``` VPK