V.Sashi vs Kasthurbai
2021 Latest Caselaw 14242 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
            THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 8TH DAY OF JULY, 2021 / 17TH ASHADHA, 1943
                   RSA NO. 714 OF 2020
   [AGAINST THE DECREE AND JUDGMENT DTD.9.7.2020 IN AS
  23/2017 OF DISTRICT COURT, ALAPPUZHA ARISING OUT OF
      JUDGMENT DTD.30.11.2016 IN O.S.NO.10/2011 OF
                  SUB COURT, ALAPPUZHA]
APPELLANT/APPELLANT/DEFENDANT:

            V.SASHI,
            AGED 63 YEARS,
            S/O.VASU, PUTHENPARAMBIL, VALLADIMURI,
            KUMARANKARI P.O., 686 103, NEELAMPEROOR
            VILLAGE, KUTTANAD TALUK, FROM PUTHENPARAMBIL ,
            PALLAMKARA, NATTAKAM VILLAGE, KOTTAYAM
            BY ADV.SRI. P.MANOJKUMAR

RESPONDENT/RESPONDENT/PLAINTIFF:

            KASTHURBAI,
            AGED 75 YEARS,
            D/O.PARVATHYAMMA, SREEPADMAM, DEVI NAGAR,
            PAZHAVEEDU VILLAGE, ALAPPUZHA-688 009, FROM
            MALIYECKAL MADOM, VALADI MURI, NEELAMPEROOR
            VILLAGE, KUTTANAD TALUK-686 534
            BY ADV SRI.A.KRISHNAN


     THIS    REGULAR   SECOND    APPEAL    HAVING    COME   UP   FOR
ADMISSION     ON   05.07.2021,    THE     COURT     ON   08.07.2021
DELIVERED THE FOLLOWING:
 R.S.A.No.714 of 2020

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                         JUDGMENT

This appeal is directed against the decree and

judgment dated 9.7.2020 in A.S.No.23/2017 on the file of the

District Court, Alappuzha, which arose from the judgment

dtd.30.11.2016 in O.S.No.10/2011 on the file of the Sub

Court, Alappuzha .

2. The appellant is the defendant and the

respondent is the plaintiff before the trial court. The parties

are hereinafter referred to as 'the plaintiff' and 'the

defendant', according to their status in the trial court unless

otherwise stated.

3. The plaintiff filed the suit seeking to declare her

title over the plaint schedule property, to fix the northern

boundary of the same separating the property of the

defendant and to put up a fence or compound wall therein R.S.A.No.714 of 2020

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and consequential recovery of possession and permanent

prohibitory injunction.

4. In the plaint, the plaintiff has stated that she

obtained title and possession over the plaint schedule

property having an extent of 11.25 cents comprised in

Sy.No.237/14 on the strength of sale deed No.2615/1985 of

the Sub Registrar Office, Pulincunnu. The defendant is the

owner of 19 cents of property on the northern side of the

plaint schedule property. The said property belongs to her

husband and the defendant had purchased the same as per

sale deed No.367/1991. The defendant is conducting a

toddy shop in the said property. Both the above properties

are lying contiguous. Immediately after the purchase, the

owner of southern property Sri.N.Divakaran Nair raised a

claim over the same. Hence, the plaintiff filed O.S.No R.S.A.No.714 of 2020

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771/1986 before the Munsiff's court for a permanent

prohibitory injunction. Due to the dispute raised by

Sri.Divakaran Nair, the plaintiff could not mutate the

property in the revenue records. Sri.Divakaran Nair filed a

suit as O.S.No.1051/1986 before the Munsiff's Court for a

declaration of his title. Both the suits were tried jointly. OS

No.1051/1986 was dismissed by judgment dtd. 6.6.1994.

The judgment and decree in OS No.1051/1986 was

confirmed by the first appellate court and this Court. In

O.S.No.1051/1986, the defendant was also a party as

additional 3rd defendant. The defendant has admitted the

right of the plaintiff over the property. In the resurvey, the

plaint schedule property was measured along with the

property of the defendant and the entire extent in Re-

Sy.No.587/4 had been included in his Thandaper Account R.S.A.No.714 of 2020

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No.2596. The defendant is entitled to get only 19 cents

included in the resurvey and the plaint schedule property is

to be separated. The resurvey authorities had not taken any

action in this regard and on the strength of the mistake in the

resurvey, the defendant claims right over the property.

5. In the written statement filed, the defendant

contended that the defendant purchased his property on

5.3.1991 from the husband of the plaintiff having an extent of

19 cents and the land in excess abutting the property. The

defendant has been enjoying the property from 1991

onwards. The defendant is having property more than what

is stated in the sale deed and the same has been included in

the recitals. The property of the defendant is situated within

well demarcated boundaries. The defendant is not in

possession of any property owned and possessed by the R.S.A.No.714 of 2020

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plaintiff.

6. During the trial of the case, PW1 was examined

and marked Exts.A1 to A10 on the side of the plaintiff and

Dws.1 to 3 were marked and Ext.B1 is marked on the side of

the defendants. Exts.C1 series were also marked.

7. Having heard both sides, the trial court

accepted Exts.C1(c) sketch prepared by the commissioner

and declared title over the plaint schedule property which is

specifically marked therein. The court also fixed the northern

boundary of the plaint schedule property separating the

property of the plaintiff and the defendant as per Ext.C1(c)

sketch. The defendant was also directed to surrender the

vacant possession of the property to the plaintiff failing

which the plaintiff was entitled to recover possession of the

property through court. A decree for permanent prohibitory R.S.A.No.714 of 2020

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injunction restraining the defendant from trespassing upon

the property or from interfering with the possession of the

plaintiff was also granted. Feeling aggrieved, the defendant

preferred appeal before the District Court, Alappuzha. The

learned District Judge dismissed the appeal confirming the

judgment and decree of the trial court. Hence, this appeal

has been preferred.

8. Learned counsel for the appellant contended

that what has been conveyed to the defendant as per Ext.A2

is an area of 19 cents and the land in excess. According to

the learned counsel, the appellant is entitled to get more

extent of land and the same is evident from the revenue

records. He would contend that the admission made by the

defendant in the pleading itself is not sufficient to confer title

on the property unless the plaintiff has proved his title in R.S.A.No.714 of 2020

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accordance with law. It was contended that the

Commissioner measured out the property without

considering the resurvey records, Exts.A1, A2, the nature

and lie of the plaint schedule properties.

9. On the other hand, the learned counsel for the

respondent contended that the defendant obtained 19 cents

of land as per Ext.A2. When PW1 was examined before the

trial court, he admitted that 2 cents of land is in excess as per

Ext.A2. It was further contended that when the

Commissioner categorically identified the properties based

on Exts.A1 and A2 without any shortage, there is no reason

to disbelieve the Commissioner's report and the plan

appended thereto. The learned counsel for the respondent

further submitted that the claim of the appellant based on

the revenue records does not create or extinguish the title R.S.A.No.714 of 2020

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over such land. It was argued that earlier suit, wherein the

appellant was also a party, was dismissed concurrently by

the trial court and the appellate court. The second appeal

was also dismissed. In view of the conduct of the appellant,

it has been submitted that this appeal is filed before this

Court as an experimental measure.

10. Heard the learned counsel for the appellant

Sri.P.Manoj Kumar and the learned counsel for the

respondent Sri.A.Krishnan.

11. The plaintiff obtained title in respect of 11¼

cents of property forming part of 29 cents of property in Old

Sy.No.237/14 on the northern side of total extent of 44 cents.

One Divakaran Nair, who is the brother of the plaintiff,

claimed right over the plaint schedule property, filed a suit

seeking permanent prohibitory injunction as OS R.S.A.No.714 of 2020

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No.771/1986. On the other hand, Mr.Divakaran Nair filed

O.S.No. 1051/1986 against the defendant and others and the

said litigation continued up to this Court till 22.5.2009. In the

meanwhile, the defendant, purchased an area of 19 cents and

the land in excess on the northern side of the plaint schedule

property from the husband of the plaintiff. The defendant

was the third defendant in the said suit. As stated earlier, the

plaintiff is claiming title over 11¼ cents of property.

However, the defendant claimed title by virtue of Ext.A2. The

main contention of the defendant is that he obtained 19

cents of property plus excess land. PW1 is the husband of

the plaintiff. When PW1 was examined, he admitted that the

defendant is in possession of excess land having an area of 2

cents. The commissioner located the property based on

Exts.C1 to C1(c) . As per Ext.C1(b), the old resurvey plan, the R.S.A.No.714 of 2020

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Commissioner located 11¼ cents as the property of the

plaintiff as per Ext.A1. Similarly 21.330 cents was located

as the property of the defendant based on Ext.A2. The same

is the location as per Ext.C1(c) resurvey plan also.

12. The main contention raised by the defendant

is that she is paying tax to the property by virtue of Ext.B1.

Though objection was filed by the defendant disputing the

authenticity and correctness of Ext.C1 series, no petition

was filed before the trial court to set aside the commission

report. Ext.B1 would go to show that the defendant has

been paying tax in respect of the entire extent of property as

per Re-survey 587/4 having an extent of 11.75 ares. In fact,

the defendant is raising his claim over the property based on

revenue records and mutation of the entire property in his

favour. The first appellate court rightly held that mutation of R.S.A.No.714 of 2020

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land in the revenue records does not create or extinguish the

title over which the land nor it has any presumptive value on

the title. The revenue records cannot be treated as a criteria

to claim extra land in addition to the property contained in

Ext.A1. In fact, the Commissioner identified the properties

correctly and the trial court and the first appellate court

accepted Ext.C2(c) plan prepared by the commissioner.

Alignment was fixed separating the property of the plaintiff

and the defendant accordingly. What was conveyed as per

Ext.A2 was 19 cents and the land in excess. As per Ext.C2(c)

plan, the defendant obtained an area of 21.330 cents of land.

The commissioner located 11¼ cents of land as the property

of the plaintiff as per ExtA1.

13. On behalf of the respondent, it has strenuously

been contended with considerable force that there is no R.S.A.No.714 of 2020

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qustion of law involved in the second appeal far less any

substantial question of law to warrant interference of the

High Court in the second appeal. According to the learned

counsel for the respondent, the proper test for determining

whether a substantial question of law involved in the second

appeal is there must be a foundation in the pleadings and the

question should emerge from the sustainable findings of fact

arrived at by the courts of facts. According to the learned

counsel for the respondent, a finding of fact arrived at by the

trial court, which has been confirmed in appeal declaring the

title of the plaintiff over plaint A schedule property, and

consequential reliefs is not open to challenge in second

appeal even if the appreciation of evidence is palpably

erroneous and the finding of fact is incorrect.

14. The trial court and the first appellate court R.S.A.No.714 of 2020

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declared the title of the plaintiff based on cogent and binding

documents of title including Exts.A1 and A2 sale deeds. The

trial court and the first appellate court concurrently held

that the Commissioner measured out the property in

accordance with Exts.A1 and A2 sale deeds, nature and lie of

the property and fixed the alignment separating plaint A and

B schedule property. The conclusion of the two courts

below touching the legal right of the plaintiff to get

declaration of his title over the plaint schedule property and

consequential reliefs does not warrant interference in a

second appeal. The questions canvassed by the learned

counsel for the appellant were not at all questions of law far

less any substantial questions of law involved in the case. R.S.A.No.714 of 2020

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Resultantly, this R.S.A. is dismissed in limine. No

costs. Pending applications, if any, stand closed.

Sd/-

N.ANIL KUMAR, JUDGE

MBS/