V.M. Mujeeb v. Bright Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942** ## **RFA.No.63 OF 2013** **AGAINST THE JUDGMENT AND DECREE DATED 21-07-2012 IN O.S.NO. 618/2010 OF II ADDITIONAL SUB COURT,ERNAKULAM** ## **APPELLANT/DEFENDANT:** **V.M.MUJEEB, AGED 40 YEARS, S/O.MOIDEEN, VALIYAVEETTIL HOUSE, KARGIL ROAD, VAZHAKALA, KAKANAD.** **BY ADVS.SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENT/PLAINTIFF:** **BRIGHT JOSEPH, S/O.P.C.JOSEPH, THALACHEL HOUSE, K.K.ROAD, THRIKKAKKARA.P.O., COCHIN-682 021.** **BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10-11-2020, THE COURT ON 12-11-2020 DELIVERED THE FOLLOWING:** ## **R.F.A.No.63/2013** ## **:-2-:** ## **Dated this the 12[th] day of November, 2020** ## **J U D G M E N T** The sole defendant in O.S.No.618/2010 before the Sub Court, Ernakulam, is the appellant. 2. The court below granted a decree fixing eastern boundary of plaint A schedule property on the basis of Ext.C2(a) plan in favour of the respondent/plaintiff and also allowed the respondent to recover plaint B schedule 0.41 ares of land from the possession of appellant. A permanent prohibitory injunction was also granted against the appellant restraining him from interfering from possession of respondent. The appellant being aggrieved, challenges the judgment and decree. 3. The respondent filed the suit for fixation of eastern boundary of plaint A schedule property obtained under Ext.A1 sale deed dated 19.1.2006. He ## **R.F.A.No.63/2013** ## **:-3-:** **==> picture [437 x 583] intentionally omitted <==** **----- Start of picture text -----**<br> ||||||||| |---|---|---|---|---|---|---|---| |purchased the property from his vendor, Roy John.| |The property of the appellant is situated on the| |immediate east of respondent's property which he| |purchased from his vendor, Abdul Aziz under Ext.B1| |sale|deed|dated|26.8.2008.|Plaint|A|schedule| |property originally belonged to Sri.Aziz from whom| |respondent's vendor purchased the property as per| |Ext.A2 sale deed in 2006. The respondent's case is| |that|after|appellant|purchased|the|eastern| |property, he reduced a small extent from plaint A| |schedule property on the eastern side to wrongful| |possession and put up a rubble boundary wall in the| |year|2009.|He|objected|to|the|trespass|and| |approached the police as well as taluk authorities.| |Since appellant was not amenable to surrender the| |trespassed area, he filed the present suit for| |fixing the eastern boundary and recovering the| |plaint B schedule.| |4.|Under|Ext.A1|sale|deed|the|respondent| **----- End of picture text -----**<br> ## **R.F.A.No.63/2013** ## **:-4-:** purchased 2.96 ares and plaint A schedule was described in the suit as measuring 2.96 ares in resurvey No.41/2 of Vazhakkala village. The trespassed area was shown to be plaint B schedule extending 1½ cents. 5. After DW2 Advocate Commissioner visited the property and measured the property on the basis of title deeds of parties, Ext.A1 title deed was found to take in only 2.77 ares instead of 2.96. The trespassed plaint B schedule was found to measure only 0.41 ares. The plaint was accordingly amended and the court below also granted the impugned decree in terms of the amended plaint. 6. The appellant also admits that the respondent has property on the western side of his land. His contention is that the measurements shown in plaint A schedule and in Ext.C2(a) plan are all wrong. It is contended that the respondent has not obtained plaint B schedule 0.41 ares and it is in ## **R.F.A.No.63/2013** ## **:-5-:** fact the part and parcel of 3.74 ares of land obtained as per Ext.A2 sale deed obtained in the name of the appellant. It is specifically contended that when the appellant purchased the property in 2008, there was already an existing boundary separating the property in possession of respondent and appellant's vendor Sri.Abdul Aziz. The appellant's contention is that the property was measured in the presence of respondent at the time of purchase and he accepted the rubble boundary as the existing eastern boundary of the vendor's property. In short, the contention is that the property of the respondent did not extend beyond the existing boundary which was already put up by the vendor of the appellant. Alternatively it is contended that if in any event, any part of the respondent's property is found to be included in respondent's title deed, it was lost by adverse possession and limitation. ## **R.F.A.No.63/2013** ## **:-6-:** 7. The material question which arose for consideration before the court below was whether plaint B schedule 0.41 ares of land formed part of respondent land and covered by Ext.A1 sale deed dated 19.1.2006. Even though issue as to adverse possession and limitation was raised at the instance of the appellant, that contention was given up at the time of trial and accordingly issue on adverse possession did not arise for consideration. In appeal also, it was submitted by the learned counsel for the appellant that issue as to adverse possession has no relevance. 8. On the side of the respondent, he was examined as PW1. The Taluk Surveyor who prepared Ext.C2(a) plan was examined as PW2. The appellant and Advocate Commissioner were examined as Dws.1 and 2 respectively. On the side of respondent, Exts.A1 to A3(a) were admitted in evidence while Exts.B1 to B3 were received on the side of ## **R.F.A.No.63/2013** ## **:-7-:** appellant. Exts.C1 to C3 and C2(a) plan were the documents prepared by the Advocate Commissioner with the assistance of Taluk Surveyor. 9. PW2 Taluk Surveyor measured the properties in re-survey No.41/2 acquired by respondent and appellant under Exts.A1 and B1 as per the measurements given in their respective title deeds and found that there was a shortage of 0.41 ares of land in total extent of the area. The court below took the view that since respondent purchased the property first in point of time in 2006, the subsequent purchaser of the property alone will have to suffer the shortage since his vendor could not have sold what he did not have in actual possession. A few objections raised as to the correctness as to Ext.C2(a) plan were also considered and found against the appellant. The contention of the appellant that respondent's property extended only upto the existing rubble ## **R.F.A.No.63/2013** ## **:-8-:** boundary wall was also not accepted by the court below. On a consideration of entire evidence on record the court below fixed the boundary separating the properties belonging to both parties accepting Ext.C2(a) plan and allowed the respondent to recover yellow shaded 0.41 ares after finding it to be a part of amended plaint A schedule 2.77 ares. 10. I heard the learned counsel for the appellant as well as the respondent. 11. The learned counsel for the appellant submitted that since there was a rubble boundary already existing which was put up by the vendor of appellant on the immediate eastern side of respondent's property, 0.41 ares of land shown in yellow shade in Ext.C2(a) plan formed part of 3.77 ares of land purchased by him under Ext.B1 sale deed. It is further contended that the shortage of 0.41 ares should be traced from the western side of ## **R.F.A.No.63/2013** ## **:-9-:** respondent's property where there is a thodu in existence. One of the objections with respect to Ext.C2(a) plan is that the Taluk Surveyor failed to measure out the entire property comprised in resurvey No.41/2 and this has vitiated the plan. The learned counsel for the appellant also proceeded to contend that the decree fixing the eastern boundary is vitiated in as much the respondent has not sued on title and further he has failed to establish that the appellant encroached upon 0.41 ares and put up the rubble boundary wall as contended in the plaint. On the other hand, the learned counsel for the respondent sought to sustain the entire findings as well as the impugned judgment and decree contending that Ext.C2(a) plan was correctly prepared on the basis of survey records after locating the unmistakable point before starting the survey. 12. Ext.C2(a) plan shows that the properties of ## **R.F.A.No.63/2013** ## **:-10-:** the parties were identified on the basis of measurements given in their respective title deeds and there is inevitable shortage of a small extent of 0.41 ares. The contention of the appellant that the shortage must be traced and made good from the adjacent western thodu close to plaint A schedule property was rejected rightly by the court below since the original owner of the property Sri.Aziz did not have any rights in the adjacent western survey No.5/70. Nothing has been brought out to show that FG line which separates Survey No.5/70 and re-survey 41/2 was not correctly fixed by PW2. The evidence given by Taluk Surveyor shows that on the basis of survey records, he started measurement from an unmistakable survey point. 13. The contention that entire properties in re-survey No.41/2 were not measured is of no merit because the title deeds of the parties show that on the west of appellant's property as well as the ## **R.F.A.No.63/2013** **:-11-:** south of properties of both parties, there are private lanes. The properties in the name of the parties are enclosed on two sides by these pathways. The executants of Exts.A1 and B1 therefore could not have conveyed title in excess of what they had within the enclosed total area in re-survey No.41/2. Therefore the person who ought to necessarily suffer the shortage must be the subsequent purchaser who is none other than the appellant. This is the view which the court below has taken and in my view, this finding is not worth interfering at all. 14. Certainly the situation could be different had there been evidence to show that there was already an existing rubble boundary as contended by the appellant when he had taken the sale deed in his name on 26.8.2008. Except the mere assertion that there was such an existing boundary at the time of purchase, there is no convincing evidence. ## **R.F.A.No.63/2013** ## **:-12-:** The Advocate Commissioner who visited the plaint property for the first time immediately after the institution of the suit was not asked to report the age of the boundary. PW1 denied that on the date of Ext.B1 there was any existing boundary. Though the appellant in his testimony asserted that there was an existing boundary on the western side of the property purchased by him, it was not shown to be probable. There is every reason to think that the respondent also had, when he purchased the property in 2006, measured the property and entered into possession after being satisfied that the measurements in his title deed were in tune with the possession. I have already held that the shortage of 0.41 ares should be accounted for in the adjacent western survey number is without any basis since the thodu on the west lies in a different survey number in which respondent's vendor did not hold any interest at all. ## **R.F.A.No.63/2013** ## **:-13-:** 15. It is true that respondent has not sued for declaration though title was denied by the appellant. Section 34 of the Indian Specific Relief Act, 1963 does not mandate that in all cases where title is denied, one has to sue for title also. The first prayer made in the plaint is for fixing the eastern boundary of the suit property based on the measurements in Ext.A1 title deed. That means an issue on title necessarily arises for consideration in the suit and the court ought to decide the title also before ordering fixation of eastern boundary based on Ext.C2(a) plan. This however does not mean that the respondent must sue for declaration of title also. I do not find any illegality in the approach made by the court below. When 0.41 ares of property was found to be part of Ext.A1 property as per Ext.C2(a) plan, it means that trespass into the suit property was established by evidence. Then burden then lay only ## **R.F.A.No.63/2013** **:-14-:** upon the appellant to show that the title covered by Ext.A1 was lost by adverse possession and limitation. That plea has been given up in the court below itself. The decisions cited by the learned counsel for the appellant and reported in **Union of India and others v. Vasavi Co-op. Housing** **Society Ltd. and others (2014 KHC 4011)** and **Poona** **Ram v. Moti Ram (D) Th.Lrs. and others** ( **2019 KHC** **6085)** have no application to the facts of this case. 16. I am satisfied that court below has rightly found that 0.41 ares of property is part of the property covered by Ext.A1 sale deed and it is in the wrongful possession of appellant and he is bound to surrender it to the rightful owner. The court below should have _inter alia_ permitted the appellant to dismantle the existing rubble boundary wall and take away the materials when the appellant failed to put up any legal claim in plaint B ## **R.F.A.No.63/2013** **:-15-:** schedule. I do not find any reason to interfere with the impugned judgment and decree of the court below. In the result, appeal fails and it is dismissed. The appellant is permitted to dismantle the existing rubble boundary wall in plaint B schedule and take away the materials at his own cost. No costs. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/