Sasidharan vs Soman Panicker & 5 Others
2022 Latest Caselaw 10860 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                  THE HONOURABLE MR. JUSTICE SATHISH NINAN
         THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
                             RSA NO. 12 OF 2007
     AGAINST THE JUDGMENT IN AS 26/2000 OF SUB COURT, NEYYATTINKARA
          OS 129/1995 OF II ADDITIONAL MUNSIFF COURT, NEYYATTINKARA
                                    -----
APPELLANT/RESPONDENT (IN AS NO.26/2000)-APPELLANT (IN AS NO.30/2000/4TH
DEFENDANT:

              SASIDHARAN, S/O RAGHAVA PANICKER,
              PUNNAVILA ROADARIKATHU VEEDU, KOTTUKAL DESOM, KOTTUKAL
              VILLAGE, THIRUVANANTHAPURAM.

              BY ADV SRI.BIJU BALAKRISHNAN



RESPONDENTS/APPELLANTS (IN AS 26/2000)-RESPONDENTS (IN AS
NO.30/2000)/PLAINTIFFS & DEFENDANTS 1 TO 3:

     1        SOMAN PANICKER, S/O RAGHAVA PANICKER,
              PUNNAVILA PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL P.O., VIA
              BALARAMAPURAM, THIRUVANANTHAPURAM.

     2        PRASANNAKUMARI, D/O.KANCHI AMMA,
              PUNNAVILA PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL P.O., VIA.
              BALARAMAPURAM, THIRUVANANTHAPURAM.

     3        CHANDRAMOHAN, S/O. RAGHAVA PANICKER,
              PUNNAVILA PUTHEN VEEDU, KOTTUKAL DESOM, KOTTUKAL P.O., VIA.
              BALARAMAPURAM, THIRUVANANTHAPURAM.

     4        KERALA STATE ELECTRICITY BOARD,
              REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM.

     5        THE ASSISTANT ENGINEER,
              K.S.E.B. BALARAMAPURAM.
 RSA NO. 12 OF 2007                   -2-


     6     THE EXECUTIVE ENGINEER,
           K.S.E.B. NEYYATTINKARA.

           BY ADVS.
           SRI.A.R.DILEEP
           SRI.GEORGE VARGHESE PERUMPALLIKUTTIYIL
           SMT.KAVITHA GANGADHARAN
           SRI.RAJU JOSEPH SR.
           SMT.SURYA SASI
           SRI. ASOK M.CHERIYAN, SC, KSEB
           SRI.PULIKOOL ABUBACKER, SC, KSEB
           SRI.K.T.PAULOSE, SC, KSEB




     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.11.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                       SATHISH NINAN, J.
             = = = = = = = = = = = = = = = = = =
                    R. S. A. No.12 of 2007
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           Dated this the 3rd day of November, 2022

                           J U D G M E N T

This Regular Second Appeal is filed by the 4 th

defendant in a suit for declaration of title and

possession, and fixation of boundary. The plaint

schedule consists of several items of properties.

Subject matter of this appeal is confined to item No.2

in the plaint 'C' schedule (for the sake of convenience

hereinafter referred to as "the property") and hence the

discussions are confined to that. The suit, in so far as

it related to the property, was dismissed by the trial

court. The decree was reversed in appeal.

2. The plaintiff claims title over the property

under Ext.A1 Settlement Deed dated 02.08.1989 executed

in favour of his father. Subsequently, in the year 1995,

as per Ext.B7, the father purported to cancel Ext.A1.

This led to the suit. Pending the suit, as per Ext.B6 R. S. A. No.12 of 2007

dated 07.07.1997, the property was purported to be

conveyed in favour of the wife of the 4th defendant.

3. The trial court found that Ext.A1 Settlement

Deed has taken effect and that Ext.B7 cancellation deed

and Ext.B6 conveyance does not affect the title of the

plaintiff. However, it was found that the property has

not been properly identified. Accordingly, the suit, in

so far as it relates to the property, was dismissed. The

first appellate court concurred with the finding on the

validity of Ext.A1 settlement deed. However, it found

that the property has been properly identified by the

Commissioner in Ext.C1(a) plan. Accordingly, decree was

granted in respect of the property. It is aggrieved

thereby that the 4th defendant has filed this appeal.

4. Heard learned counsel Sri.Biju Balakrishnan on

behalf of the appellant and Sri.George Varghese

Perumpallikuttiyil on behalf of the contesting

respondents on the following substantial questions of

law:-

R. S. A. No.12 of 2007

"(i) Do Ext.B7 Cancellation Deed and Ext.B6 Sale

Deed affect the title of the plaintiff under Ext.A1 Settlement

Deed ?

(ii) Was the first appellate court right in interfering

with the finding of the trial court on the question of

identification of the property ?"

5. Ext.A1 Settlement Deed was executed on

02.08.1989. A reading of the recitals in Ext.A1 admits

of no doubt that a right in praesenti is created thereunder

in favour of the plaintiff. Though the executant has

reserved a right to take usufructs from the property

during his life time, that will not in any manner affect

the passing of title thereunder. Even under the said

document, possession of a portion of the property has

been handed over. The fact that the remaining portion of

the property covered under Ext.A1 was not delivered to

the donee consequent on the reservation regarding

enjoyment of the property, will not defeat the vesting

of title on the plaintiff [see Renikuntala Rajamma v. K. R. S. A. No.12 of 2007

Sarwanamma, 2014 (3) KLT 469 (SC)]. Though the learned

counsel for the appellant would try to canvass that the

document in question is only a Will, as noticed supra,

under the document right in praesenti has been created. The

donee was directed to effect mutation of the property

and pay tax from the date of the document, and was

directed to hold the property as his own. Therefore, the

courts were right in having held that Ext.B7

cancellation and the subsequent sale Ext.B6, are of no

avail, and does not affect the title created by Ext.A1.

The courts were right in having held so. Substantial

question of law No.(i) is answered accordingly.

6. Coming to the issue of identity of the property,

Ext.C1(a) is the Commissioner's plan whereunder the

properties have been identified. The main reason on

which the trial court held that the identification under

Ext.C1(a) plan is not proper is that, there is

difference in the northern side measurement of the

property of the 4th defendant-appellant as shown in the R. S. A. No.12 of 2007

plan and the title deeds. Ext.B3 settlement deed is one

of his title deeds. As per Ext.B3, the northern side

measurement is "50 links". So also, a small extent of

property having 440 sq. links was given to the 4 th

defendant by the second defendant under Ext.B5 document.

It was a conveyance executed pursuant to settlement of

certain disputes between them. The northern side

measurement of the said property is "8 links" as

mentioned in Ext.B5. The said property adjoins the

property obtained by the 4 th defendant under Ext.B3.

Therefore, the total length of the northern boundary

should be "58 links". However, in Ext.C1(a) plan the

northern boundary measurement is shown as only "40

links". It is for the said reason that the trial court

held against the identification of the property done

under Ext.C1(a) plan. But it was omitted to be brought

to the notice of the Court that, the 4 th defendant-

appellant as DW1 has, in his cross-examination, admitted

that while the documents were executed the properties R. S. A. No.12 of 2007

were not measured. It was further suggested to him that

the side measurements in the prior deeds were copied, to

which he pleaded ignorance. Anyhow, it was admitted that

the properties were not measured when the documents were

executed. Therefore, the side measurements cannot be

decisive.

7. The property is portion of a larger extent of 14

cents. Out of the same, the western most plot belongs to

the second plaintiff under Ext.A10. To its east is the

property of the 4th defendant-appellant which lies in an

'L' shape. At the north-eastern extremity of the 14

cents and within the arms of the 'L' shape is, the

property, having an extent of 2 cents. The 4 th defendant

has obtained title to the property lying in the 'L'

shape under three documents viz. Ext.B3 for an extent of

5 cents, Ext.A3 for an extent of 2 cents, and under

Ext.B5 for an extent of 440 sq. links (approximately 5

cents.) There were some disputes between the second

plaintiff and the appellant-the 4 th defendant. The R. S. A. No.12 of 2007

disputes were settled and Ext.B5 was executed by the

second plaintiff in favour of the 4 th defendant-

appellant whereunder 440 sq. links (approximately 5

cents) were conveyed by him to the 4 th defendant.

However, it is seen that even after the said conveyance

the second plaintiff is still in possession of 5 ½

cents. The extent possessed by the 4 th defendant has a

deficit of ½ cents. Whether the deficit in half cents

has occurred from the western side is not known. The

conveyance under Ext.A1 in favour of the plaintiff is in

the year 1989. The conveyance under Ext.A3 in favour of

the 4th defendant is in the year 1984. Therefore, if at

all there is any deficit in extent, the donee under the

earlier deed (Ext.A1) gets the benefit and the donee

under the later deed Ext.A3 has to bear the deficit.

Thus, viewed in any manner, the identification done

under Ext.C1(a) relating to the property is correct. The

first appellate court was right in having held that the

property has been identified correctly in Ext.C1(a). R. S. A. No.12 of 2007

Substantial question of law No.(ii) is answered

accordingly.

Thus, it is found that the findings of the

appellate Court on the issues of title and

identification are correct in law.

Resultantly the Regular Second Appeal fails and is

dismissed.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge