Thomas vs Philip
2022 Latest Caselaw 7401 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
              THE HONOURABLE MR.JUSTICE K. BABU
    FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
                     RSA NO. 331 OF 2005
AGAINST THE JUDGMENT AND DECREE DATED 19.10.2004 IN A.S.NO.
           75/1998 OF DISTRICT COURT,PATHANAMTHITTA
             OS 190/1994 OF MUSNIFF'S COURT,ADOOR
APPELLANTS/RESPONDENT/DEFENDANT:

   * 1     THOMAS, S/O.ABRAHAM, (DIED)
           VALLIYATHU VEEDU, ARUKALICKAL KIZHAKKU MURI,,
           EZHAMKULAM VILLAGE.

  ADDL.2   MOLLY THOMAS, AGED 81 YEARS, W/O.LATE A.THOMAS,
           VALLIYATHU VEEDU, ARUKALICKAL KIZHAKKU MURI,
           EZHAMKULAM,PATHANAMTHITTA,PIN-691556 NOW AT 2D,
           BLOCK-II, MAY FLOWER PALMGROVE, CENTRAL STUDIO
           ROAD, COIMBATORE, TAMIL NADU, PIN-641 005.

    " 3    DILEEP ABRAHAM, AGED 54 YEARS
           S/O.LATE A.THOMAS, VALLIYATHU VEEDU,
           ARUKALICKAL KIZHAKKU MURI, EZHAMKULAM,
           PATHANAMTHITTA,PIN-691556 NOW AT 2D,
           BLOCK-II, MAY FLOWER PALMGROVE, CENTRAL STUDIO
           ROAD, COIMBATORE, TAMIL NADU, PIN-641 005.

   " 4     SATHEEP MATHEW, AGED 49 YEARS
           S/O.LATE A.THOMAS, VALLIYATHU VEEDU, ARUKALICKAL
           KIZHAKKU MURI,EZHAMKULAM, PATHANAMTHITTA PIN-
           691556 NOW AT FLAT NO.201, BUILDING NO.2, QASIM
           SULTHAN BUILDING AL-QUSAIS-II, DUBAI, UAE.

           BY ADVS.SRI.G.HARIKRISHNAN (TRIPUNITHURA)
           M.S.UNNIKRISHNAN
           SRI.V.S.SREEJITH
 R.S.A.No.331 of 2005
                                    2



RESPONDENT/PLAINTIFF:

             PHILIP, S/O.ABRAHAM
             VALLIYATHU VEEDU, ARUKALICKAL KIZHAKKU MURI,,
             EZHAMKULAM VILLAGE.

             BY ADVS.SRI.S.V.BALAKRISHNA IYER SR.
             SRI.K.JAYAKUMAR
             SRI.P.B.KRISHNAN
             SRI.R.SURAJ KUMAR
             SRI.SUNIL J.CHAKKALACKAL
             SMT.V.DEEPA


      THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
24.06.2022,      THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 R.S.A.No.331 of 2005
                                     3




                                                                "C.R."


                             JUDGMENT

The judgment dated 19.10.2004 passed by the District

Court, Pathanamthitta in A.S.No.75 of 1998 is under challenge in this

Regular Second Appeal. The Appeal Suit arose from the judgment and

decree passed by the Munsiff's Court, Adoor in O.S.No.190 of 1994. The

appellant herein is the defendant.

2. The Original Suit was filed for recovery of possession,

fixation of boundary and injunction.

3. The plaintiff and defendant are siblings. The plaintiff

obtained the plaint 'A' schedule property measuring 11 cents under

Ext.A1 sale deed of 1972. The plaintiff obtained the plaint 'B' schedule

property measuring 53 cents under Ext.A2 settlement deed of 1984.

The defendant also acquired 29 cents of property under Ext.A2

settlement deed executed by the father of the parties.

4. The plaintiff had been in possession and enjoyment of the

entire plaint schedule properties. He had been working in Rajasthan. R.S.A.No.331 of 2005

Taking advantage of the fact that the plaintiff was not in station, the

defendant trespassed upon a portion of plaint 'B' schedule property and

constructed a building. The plaintiff intervened with the assistance of

some relatives and the properties were measured by the Taluk

Surveyor and boundary stones were erected. The defendant uprooted

the boundary stones and trespassed upon a portion of the property

measuring about 7.90 cents marked as BONPQRS in Ext.C1 plan. The

plaintiff is entitled to recover that portion of the property from the

defendant after fixing the boundary separating the two properties. The

plaintiff also prayed for a prohibitory injunction against the defendant.

5. The defendant resisted the suit. The defendant acquired

title over 29 cents of property as per Ext.A2 settlement deed. Boundary

stones were erected at the time when the father of the parties executed

the settlement deed. Based on the settlement deed, he had no reason

to trespass upon the property owned by the plaintiff. The allegation that

he uprooted the survey stones planted with the Taluk Surveyor's

assistance is incorrect. He had not constructed the compound wall

encroaching upon the plaintiff's property. In fact, the plaintiff

demolished a portion of the boundary wall separating the properties.

The defendant is entitled to a sum of Rs.5,000/- as damages from the R.S.A.No.331 of 2005

plaintiff. The defendant set up a counterclaim seeking to realise

damages from the plaintiff.

6. During the trial, PWs 1 to 4 were examined and Exts.A1

to A8 were marked on the plaintiff's side. DWs 1 and 2 were examined

and Exts.B1 to B3 were marked on the defendant's side. Exts.C1 to C7

were marked as Court exhibits.

7. The trial Court dismissed the suit as well as the

counterclaim.

8. The plaintiff challenged the decree dismissing the original

suit before the District Court by filing A.S.No.75 of 1998. The

defendant challenged the decree dismissing the counterclaim by filing a

cross objection. The First Appellate Court allowed the appeal suit. The

Court decreed the original suit as prayed for and dismissed the cross

objection preferred by the defendant.

9. The defendant is in appeal before this Court under

Section 100 of the Code of Civil Procedure.

10. On 31.3.2005, this Court admitted the appeal on the

following substantial question of law:-

"In the absence of suit for declaration, whether the suit for recovery of possession, fixation of boundary and injunction will lie."

R.S.A.No.331 of 2005

After hearing both sides, this Court framed the following additional

substantial question of law:-

"Has the First Appellate Court drawn necessary inferences and presumptions in accordance with law as to the facts of the case ?"

11. Heard Sri.M.S.Unnikrishnan, the learned counsel for the

appellant/defendant and Sri.S.V.Balakrishna Iyer, the learned Senior

Counsel appearing for the respondent/plaintiff.

12. The plaintiff and defendant, who are siblings, acquired

properties as per settlement deed No.3503/1984 (Ext.A2) in old Survey

Nos.582/11, 582/8B, and 582/10. The plaintiff also acquired the

property in Survey No.582/10 as per sale deed No.1411/1972 (Ext.A1).

13. Plaint 'A' schedule property is 11 cents of land in Survey

No.582/10 of Ezhamkulam Village. The plaintiff acquired title to this

property as per Ext.A1 sale deed from a stranger. The plaintiff obtained

title to 53 cents of land in Survey No.582/11 as per Ext.A2 settlement

deed. This property is described in the plaint as 'B' schedule. By virtue

of Ext.A2 settlement deed, the defendant obtained 29 cents of land in

Survey Nos.582/10, 582/8B, and 582/11 of Ezhamkulam Village. R.S.A.No.331 of 2005

14. There is no challenge on the right and possession of the

plaintiff over 'A' schedule property. Going by the pleadings of the

parties, the defendant has not set up a challenge to the title of the

plaintiff over 'A' or 'B' schedule properties. No questions of fact and law

relating to title were placed before the trial Court as well as the First

Appellate Court for decision.

15. The first challenge of the appellant/defendant is that a

suit for recovery of possession and a consequential injunction will not lie

in the absence of relief of declaration. The learned Senior Counsel

appearing for the respondent Sri.S.V.Balakrishna Iyer submitted that

the relief of declaration as provided in Section 34 of the Specific Relief

Act is a discretionary relief, and it is not a matter of absolute right to

obtain a declaratory decree. The learned Senior Counsel contended that

only in cases where the "essentials" referred to in Section 34 are set

up, the plaintiff might pray for relief of declaration. The learned Senior

Counsel submitted that in the facts of the present case, the plaintiff was

not required to seek relief of declaration of title in respect of the

property involved. Section 34 of the Specific Relief Act reads thus:-

"34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such R.S.A.No.331 of 2005

character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee."

One of the essentials to seeking relief of declaration is that the

defendant has denied the legal character or any right to any property or

is interested in denying that character or right of the plaintiff.

16. The learned Senior Counsel contended that as the

defendant has not denied or is not interested in denying the title of the

plaintiff over the plaint schedule properties, the plaintiff need not seek

the relief of declaration. The matter involves no complicated questions

of fact and law related to the title. No cloud is cast on the title of the

plaintiff over the plaint schedule properties. Where the plaintiff's title is

not in dispute or under a cloud, but he is out of possession, he has to

sue for possession with a consequential injunction. In such a situation,

he need not seek relief of declaration. This view is fortified by the

decision of the Apex Court in Anathula Sudhakar v. P.Buchi Reddy

(Dead) by Lrs. and Ors. (AIR 2008 SC 2033).

R.S.A.No.331 of 2005

17. A relief of declaration of title to immovable property is

implicit in a suit for recovery of possession of immovable property

based on title inasmuch as without establishing title to the property, no

decree for the relief of possession can be passed. Thus, merely because

a plaintiff did not specifically claim the relief of declaration of title, he

cannot be denied the relief of possession.

18. Therefore, the first contention of the learned counsel

for the appellant/defendant that a suit for recovery of possession will

not lie without relief for declaration would not sustain.

19. The dispute in the matter centres around the

identification of the properties. The defendant pleaded that as the

resurvey has become final, the properties are to be identified based on

the re-survey plan finalised as per the relevant provisions of the Survey

and Boundaries Act, 1961.

20. Per contra, the learned Senior Counsel appearing for the

respondent/plaintiff contended that the decision of the re-survey

authorities would not affect the title acquired by the parties as per the

title deeds in question, and therefore, the identification of the properties

is to be made based on the relevant title deeds.

R.S.A.No.331 of 2005

21. The trial Court appointed an Advocate Commissioner to

measure the properties based on the old survey plan and the re-survey

plan. Ext.C1 is the plan that identified the properties based on Exts.A1

and A2 title deeds relied on by the plaintiff. Ext.C2 is the plan prepared

based on the re-survey plan.

22. The properties acquired by the parties were specifically

identified in Ext.C1, the plan prepared based on the title deeds and the

old plan. In Ext.C1 KLNHIJ plot is the plaint 'A' schedule property that

the plaintiff acquired as per Ext.A1 sale deed, and the Commissioner

identified ABONLK as the 53 cents of the property comprised in

Sy.No.582/11 obtained by the plaintiff as per Ext.A2 settlement deed.

As per Ext.A2 settlement deed, the defendant was allotted 4 cents of

property in Sy.No.582/10, 5 cents of property in Sy.No.582/11, and 20

cents of property in Sy.No.582/8B (29 cents). The Commissioner

identified 4 cents of property in Sy.No.582/10 allotted to the defendant

as NOFGH, and 5 cents of property in Sy.No.582/11 as BCEFO. The

plot CDE measuring 12 cents of land in Sy.No.582/8B is also identified

as the property acquired by the defendant as per Ext.A2. There is a

shortage in the extent of land as against 20 cents as per the title deed. R.S.A.No.331 of 2005

23. In Ext.C1 plan, the Commissioner identified the

properties acquired by the plaintiff ('A' and 'B' schedule properties) in

re-survey No.267/1 measuring 29 Ares (71.63 cents). As per the re-

survey plan, the property in the defendant's name is included in re-

survey No.267/9, measuring 12.40 Ares (30.628 cents).

24. The trial Court dismissed the suit, repelling the plaintiff's

claim mainly on the ground that as the re-survey plan has become final

and the plaintiff has not prayed to set aside the re-survey plan, the

identification of the property is to be done based on Ext.C2 plan. The

relevant portion of the judgment of the trial Court is extracted below:-

"According to plaintiff he is entitled to recover 7.904 cents. He claims the above portion as per Ext.C1 plan. But it is seen that Ext.C1 plan cannot be accepted, at present, in view of the fact that the original survey measurement had been replaced by resurvey final plan. Resurvey had been done on the basis of possession under Rule 67 of the Kerala Survey and Boundary Rules. As per Ext.B1, resurvey plan had become final. Plaintiff has no prayer to set aside the resurvey final plan which was marked as Ext.B2 in this case. Plaintiff deposed that defendant influenced resurvey officials. But there is no evidence to prove that contention. In this context, I find that as per Section 114(e) of the Indian Evidence Act, it has to be presumed that all official and Judicial acts had been regularly performed. Plaintiff had every right to file a suit for setting aside resurvey final plan. But he did not choose to do so. In my view, the position is well settled and the resurvey final plan cannot be ignored.

Ext.C2 is the plan prepared by Commissioner based on R.S.A.No.331 of 2005

resurvey final plan. As per Ext.C2, plaintiff has 21 Ares of land in resurvey No.267/1. That would come to 53 cents approximately. Defendant has 12.40 Ares in resurvey No.267/9. That would come to 29 cents and just above. It is not in dispute that defendant obtained 29 cents as per Ext.A2 settlement deed. On this aspect also it can be seen that defendant did not encroach upon any portion of plaint schedule property. Based on Ext.C2 I find that Ext.C1 cannot be acted upon."

(Quoted verbatim from the judgment of the trial Court)

The First Appellate Court set aside the findings of the trial Court,

holding that the re-survey plan or entries therein would not confer any

title to any of the parties. The First Appellate Court held that re-survey

plan could only be used as a piece of evidence to show the possession

of the properties on the date of re-survey, and the properties of the

parties are to be identified based on the title deeds.

25. The re-survey is done as per the provisions of the

Survey and Boundaries Act, 1961 (hereinafter referred to as `the Act').

As per the Act, survey includes all operations incidental to the

determination, measurement, and record of a boundary or boundaries

or any part of a boundary and includes a resurvey. Chapter II of the

Act deals with survey of lands. The various circumstances under which

the Government may direct survey of lands are dealt with in Chapter II.

As per Section 9 of the Act, a survey officer appointed under Section 3 R.S.A.No.331 of 2005

of the Act shall have the power to determine and record as undisputed

any boundary in respect of which no dispute is brought to his notice. As

per Section 10 of the Act, where a boundary is disputed, the survey

officer shall, after making such inquiries as he considers necessary,

determine the boundary and record it in accordance with his decision

with reasons in writing for arriving at that decision. Therefore,

essentially, the Act empowers the survey authorities to determine the

boundaries of different sub-divisions. Entries in resurvey records are

predominantly based on possession as of now. They would be worthless

when the question is whether the title is vested with the plaintiff or

defendant. It is not for the survey authorities to decide the question of

the title based on resurvey records. The title and possession are

matters to be decided by a Civil Court. Merely because a portion of the

plaintiff's property is shown in the resurvey records as with defendant's

survey number, it cannot lead to an inference that possession was with

the defendant. The changes in the extent of the property in the

resurvey would not confer title.

26. The decision of the survey authorities shall not affect

the right and title of the properties acquired by a party as per a valid

title deed. The survey authorities are not endowed to adjudicate the R.S.A.No.331 of 2005

title of the immovable property. The right and title to property have to

be determined not with reference to the survey demarcation but based

on other cogent materials, the primary of which is the title deed. The

record of the survey result shall be conclusive proof that the boundaries

were determined and recorded therein correctly. This view is fortified by

the decisions of this Court in Kannan v. Kannan (1964 KLT 228),

The Cheriyanad Grama Panchayath v. The State of Kerala and

Ors. (2019 (5) KHC 699), Venugopalan Nair v. Saraswathy

Amma (2013 (4) KLT 717), Karthyayani v. Balakrishnan (2014

(2) KLT Suppl. 67 (Ker.), Ibrahim v. Saythumuhammed (2013

(4) KLT 435) and Achama Alexander (Died L.Rs impleaded) and

Others v. Assistant Director, Survey and Land Records and

Others (2022 (2) KHC 131).

27. The resultant conclusion is that the identification of the

property measured based on Exts.A1 and A2 title deeds is to be acted

upon.

28. In Ext.C1, the Commissioner has specifically identified

the properties as per Exts.A1 and A2 title deeds. There is a shortage of

extent in the property identified as belonging to the defendant. In

Ext.A2, in the two schedules dealing with the properties set apart for R.S.A.No.331 of 2005

the plaintiff and the defendant, properties are described with reference

to survey numbers. Ext.C1 plan has been prepared with reference to

the survey numbers described in Exts.A1 and A2.

29. The learned counsel for the appellant/defendant

vehemently contended that as the extent of the property identified by

the Commissioner, as acquired by the defendant in Sy.No.582/8B (CDE

plot in Ext.C1), is only 12 cents, the necessary inference is that the

balance property entitled to the defendant has been included in

BSRQPNO portion allotted to the plaintiff. There is a shortage of 7.9

cents of property with reference to Ext.A2 title deed in the property in

Sy.No.582/8B allotted to the defendant. It is relevant to note that a

comparison of the settled old survey plan (Ext.A6) with Ext.C1 plan

makes it evident that the DE line in Ext.C1 should have joined the point

'F'. But, it joined 10.6 metres below it. That might be a possibility for

the discrepancy in the extent. The extent of the properties identified as

per Ext.C2 re-survey plan also deserves consideration. Re-survey

No.267/1 in Ext.C2 takes in the entire properties acquired by the

plaintiff as per Exts.A1 and A2. The plaintiff is entitled to 64 cents of

land as per the title deeds. AKJIL portion was admittedly set apart for

the road on the west. The extent, as per the re-survey plan, in the R.S.A.No.331 of 2005

plaintiff's name is only 21 Ares (51.87 cents). Whereas, re-survey

No.267/9, the sub-division allotted to the defendant, has an extent of

12.40 Ares (30.628 cents). Therefore, the defendant's contention that

property in Sy.No.582/8B was included in the portion allotted to the

plaintiff in Ext.C1 will not stand. The portion NPQRSBO takes only the

property allotted to the plaintiff as per the title deed. The First Appellate

Court has meticulously analyzed the pleadings, and evidence and drawn

necessary inferences and conclusions in accordance with law. The

findings of the First Appellate Court require no interference. The

substantial questions of law are answered accordingly against the

appellant.

The appeal fails, and it is dismissed. Parties are directed to

bear their respective costs. Interlocutory applications pending, if any,

shall stand closed.

Sd/-

K.BABU Judge

TKS