Kerala High Court
M.G.Bhaskaran vs Shylaja on 15 December, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 15TH DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945
RSA NO. 794 OF 2020
AGAINST THE DECREE AND JUDGMENT DATED 19.05.2020 IN A.S.NO.34/2018 ON
THE FILES OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE-II,
PATHANAMTHITTA ARISING FROM THE DECREE AND JUDGMENT DATED 28.02.2018
IN O.S.NO.292/2008 ON THE FILES OF THE MUNSIFF COURT, PATHANAMTHITTA
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 M.G.BHASKARAN
AGED 75 YEARS, S/O.M.K.GOVINDAN, THUSHARAM HOUSE,
ULLANNOOR MURI,KULANADA VILLAGE, KOZHENCHERRY TALUK,
PATHANAMTHITTA DISTRICT, PIN- 689503
2 K.R.RADAMANIYAMMA,
AGED 71 YEARS, W/O.M.G.BHASKARAN, THUSHARAM HOUSE,
ULLANNOOR MURI,KULANADA VILLAGE, KOZHENCHERRY TALUK,
PATHANAMTHITTA DISTRICT, PIN-689503
BY ADVS.
BABU KARUKAPADATH
SMT.M.A.VAHEEDA BABU
SRI.P.U.VINOD KUMAR
SMT.ARYA RAGHUNATH
SMT.VAISAKHI V.
SMT.SNEHA SUKUMARAN MULLAKKAL
SRI.SHELLY PAUL
RESPONDENT/RESPONDENT/DEFENDANT:
SHYLAJA
AGED 52 YEARS, W/O.JAYAPRAKASH, PANDISSERIL HOUSE,
ULLANNOR MURI,KULANADA VILLAGE, KOZHENCHERRY TALUK,
PATHANAMTHITTA DISTRICT, PIN-689503
BY ADVS.
SRI.T.B.SHAJIMON
SMT.GOVINDU P.RENUKADEVI
SRI.SAJEEV.T.P.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON
15.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. No. 794 of 2020
2
JUDGMENT
Dated this the 15th day of December, 2023
This regular second appeal has been filed under
order XLII Rule 1 read with Section 100 of the Code of Civil
Procedure ("CPC" hereinafter) challenging the decree and
judgment in A.S. No.34/2018 of 2018 dated 19.05.2020 on
the files of the Court of the Additional District Judge-II,
Pathanamthitta arose from decree and judgment in O.S.
No.292 of 2008 dated 08.02.2018 on the files of the Court
of the Munsiff, Pathanamthitta. The appellants herein are
the plaintiffs and the respondent is the defendant/counter
claim plaintiff in O.S. No. 292 of 2008.
2. Heard the learned counsel for the appellants as
well as the learned counsel appearing for the respondent.
3. The parties in this appeal shall be referred as
"plaintiffs" and "defendant" relegating their status before
the trial court.
4. In this matter, the plaintiffs who are husband and
wife asserted title and possession over plaint schedule
item No.1 property having and extent of 32.79 Ares as per
sale deed No.264/1/2005 of Pandalam S.R.O. Similarly, the
contention of the plaintiffs was that the plaint schedule
item No.2 property having an extent of 33 Ares also is one
lying adjacently on the northern side of plaint schedule
item No.1 property belonged to the defendant. Plaint
schedule item No.3 property, having an extent of
approximately 10 cents of land forming the northern
portion of plaint schedule item No.1 in east-west alignment
also belongs to the plaintiffs. According to the plaintiffs, the
entire properties of the plaintiffs and the defendants were
originally belonged to Anandavalli Amma, who is the
mother of the defendant and she executed settlement
deed No.195/1995 of Pandalam S.R.O. in favour of her
daughter Chandrapraba Bhai and the plaintiffs purchased
the plaint schedule item No.1 property from the said
Chandrapraba as per sale deed No.264/1/2005 of Pandalam
S.R.O. According to the plaintiffs, there is cloud in so far as
the title of the plaintiffs over plaint schedule item No.3
property. Accordingly, title over plaint schedule item No.3
property sought to be declared and the plaintiffs also
sought for decree allowing separation of the northern
boundary of the plaint schedule item No.1 property with
that of the defendant's property. Prohibitory injunction also
was sought for in the suit.
5. The defendant filed written statement with
counter claim. According to the defendant, Anandavalli
Amma obtained 1 Acre and 85 Cents of property in Old
Survey No.425/10 A and B of Kulanada Village out of which
Anandavalli Amma sold 901/2 cents of property in favour of
Chandrapraba Bhai as per sale deed No.195/1995 and the
plaintiffs derived title to the said extent of property as per
sale deed No.264/1/2005 of Pandalam S.R.O. The remaining
property on the northern portion of the said 1 Acre and 85
Cents obtained by Anandavalli Amma was transferred to
the defendant.
6. According to the defendant, 0.36 Ares of land is
owned and possessed by Chandrapraba Bhai which was
given in favour of the sister of the defendant on the
western side of the plaintiffs' property and on the eastern
side of defendant's property, 0.36 Ares of land in Re survey
No.50/2012 and 50/2013, there is no reason to fix the
eastern boundary of the said 0.36 Ares of property. The
defendant also prayed for fixation of the southern boundary
of the counter claimed property.
7. The trial court tried the matter. PWs 1 to 5
examined and Exts.A1 to A4 marked on the side of the
plaintiffs. DW1 examined and Exts.B1 to B8 marked on the
side of the defendant. CWs 1 and 2 examined and Exts.C1
to C2(c) marked as court witnesses and court exhibits.
8. Finally it was found by the trial court that the
prayer for declaration of title as claimed by the plaintiffs
over plaint schedule item No.3 property could not be
allowed and the dispute could be resolved by fixing the
northern boundary of the plaint schedule property with that
of the counter claim scheduled property. Accordingly, the
suit was decreed in part and counter claim also decreed as
such, fixing XY line in Ext.C2(a) plan as the boundary line
between the plaint schedule item No.1 property with that of
the counter claim schedule property (plaint schedule item
No.2 property).
9. On appeal, the Appellate Court also concurred
the said finding and dismissed the appeal as per decree
and judgment dated 19.05.2020 in A.S. No.34/2018.
10. At the time of admission, my learned predecessor
formulated the following substantial questions of law:
(a) Whether the findings of Courts below
in the manner that, as one of the plans,
namely Exhibit C2 (b), is not acceptable, the
other plan, namely Exhibit C2(c), without any
further reason is acceptable is illegal and
improper?
(b) Whether the finding of the Court
below that Exhibit C2(c) plan is acceptable is
without any reasoning whatsoever?
(c) Whether the finding of the courts with
regards to the acceptance of Exhibit C2 (c) is
not perverse on the evidence available on
record and the facts and circumstances of
the case?
(d) When the Court below accepted the
plan, which would deprive the appellants the
access to the property, was not the Court
below not bound to mould the relief to
ensure a proper access to the appellant?
11. While arguing this case, the learned counsel for
the appellants/plaintiffs stressed the point that if the
boundary fixed as per Ext.C2(c) plan is accepted, the
plaintiffs' property would be left without a proper way and
as per Ext.C2(b) plan showing the actual lie of the property,
there is road access to both properties. Therefore, the
courts below went wrong in accepting Ext.C2(c) plan over
riding Ext.C2(b) plan. According to the learned counsel for
the plaintiffs, the courts below did not give reasons to
reject Ext.C2(b) and to accept Ext.C2(c).
12. Per contra, the learned counsel for the defendant
submitted that originally the property having an extent of 1
Acre 85 cents, belonged to Andandavalli Amma and the
title deed of Anandavalli Amma is Ext.A4. Out of which, the
southern portion was transferred by a settlement deed in
favour of Chandrapraba Bhai and later the same was
assigned in favour of the plaintiffs. It is submitted that
Ext.A4 is the title deed of Anandavalli Amma and Ext.A3 is
the settlement deed executed by Anandavalli Amma in
favour of Chandrapraba Bhai. In turn Chandrapraba Bhai
executed Ext.A1 sale deed in favour of the plaintiffs.
13. According to the learned counsel for the
defendant, as per Ext.A3 settlement deed, the property was
divided allotting the southern portion of the entire property
covered by Ext.A4. The boundary separating the plaintiffs'
property as that of the defendant's property should be a
plain line separating the entire property into two and
Ext.C2(c) is the plan prepared in accordance with the title
deed descriptions and also in consonance with the
separation of the entire property into two halves on
southern and northern sides. It is also submitted by the
learned counsel for the defendant that Ext.C2(b) plan is the
plan prepared on the basis of Re survey records and the
same could not be given any emphasis to find out the
actual lie of the property.
14. In this matter, originally the property was owned
by Anandavalli Amma and the extent of property is 1 Acre
and 85 cents. As per Ext.A3, 92.5 cents was settled in
favour of Chandrapraba Bhai. Chandrapraba Bhai, in turn
transferred her right as per Ext.A3, in favour of the plaintiffs
as per Ext.A1 sale deed. Thereafter, Anandavalli Amma
executed Ext.B3 settlement deed No.374/1995 in favour of
the defendant and transferred 92.5 cents. Exts.C2 series
are plans relied on by the trial court as well as by the
Appellate Court to fix XY line as the boundary separating
property of the plaintiffs as that of the defendant.
15. On perusal of Ext.C2(c), the plot
ABCDD1EFF1YXZA is the property located as having an
extent of 83.5 cents as per Ext.B3 i.e. the property of the
defendant. Similarly, the plot ZXX 1YLL1L2JJ1J2J3J4GHH1Z1Z
having an extent of 81.5 cents is located as the property
covered by Ext.A3. As per Ext.C2(c) plan, the Surveyor
stated that the location of the above plots were effected
relying on the title deed description as well as the plan
obtained from Taluk Office.
16. Since it is argued by the learned counsel for the
plaintiffs that the courts below acted upon Ext.C2(c) plan
ignoring Ext.C2(b) plan, showing the lie of the property in a
more feasible way, without assigning reasons, a
comparison of Ext.C2(b) with that of Ext.C2(c) is necessary.
At the outset, it could be noticed that Ext.C2(b) plan would
depict the fact that the property not separated on south
and north as per the schedule description in Exts.A3 and B3
and the line QR is not drawn as plain line in the east-west
direction, but drawn in the north-west direction and south-
east direction. Ext.C2(b) plan, in fact, is one prepared
mainly on the basis of Resurvey. The defendant put up a
case that the plaintiffs would claim property covered by
Ext.A3 alone which is the prior title deed of Ext.A1. In
Ext.C2(b) plan, plaint item No.3 property is shown as
XUQYX as a plot in triangular shape. This is the property
over which the plaintiffs seek declaration of title. In fact,
the suit is one for declaring the title of the plaintiffs over
plaint item No.3 property and the trial court as well as the
Appellate Court disallowed the said prayer, since it is found
that plaint item No.3 property identified as per Ext.C2(b)
plan in a triangular shape, is in deviation from the title deed
descriptions.
17. In paragraph No.10 of the trial court judgment,
the learned Munsiff observed that the Advocate
Commissioner and Surveyor filed Ext.C2(b) and C2(c) plans
and they were examined as PWs 4 and 5. It was observed
further that Ext.C2(b) plan was wrong in such a way
contradicting the boundary descriptions in Ext.A1 title deed
as well as Ext.A3 title deed. Further, Ext.C2(b) plan shows
the plaint schedule item No.1 lies on the south-west of the
defendant's property, which was not in accordance with the
title deed description, wherein it was narrated as one lying
on the southern side of the defendant's property. Therefore,
Ext.C2(b) plan is not correct is the observation of the trial
court. Accordingly, the trial court given emphasis to
Ext.C2(c) plan prepared in accordance with the narrations
in Ext.A3, the prior title deed of Ext.A1 as well as Ext.B3
title deed of the defendant along with Ext.B5 survey plan.
So it could be gathered that the trial court was not inclined
to accept Ext.C2(b) plan, since the same is one
contradicting boundary description as per Exts.A1, A3 and
B3. Whereas the trial court accepted Ext.C2(c) plan, since
the same is in accordance with the narrations in the title
deeds.
18. In this matter, as argued by the learned counsel
for the plaintiffs, during cross-examination, the Surveyor
given evidence that Ext.C2(c) plan was prepared based on
document No.374/1995 (Ext.B3) and document
No.195/1995 i.e. Ext.A3. As per the plan obtained from the
Taluk Office, the property was divided into two in east-west
direction. As per evidence of PW4, the Commissioner,
Ext.C2(b) does not tally with the documents relied on by
the plaintiffs and defendant.
19. At the same time, the learned counsel for the
defendant submitted that in further cross-examination, PW4
given evidence that the plaint schedule property is on the
eastern side of the entire property whereas the property of
the defendant is on the northern side.
20. The substantial question of law as regards to
acceptance of Ext.C2(c) in exclusion of Ext.C2(b), in a case,
where, originally the property was separated on the
southern and northern sides are concerned, it is
emphatically clear that when property is segregated from
contiguous plot separating the same on the southern side,
the line separating the remaining property from the
property on the northern side must be a plain straight line
without deviation. Such straight line is clearly shown in
Ext.C2(c). Whereas, Ext.C2(b) shows a triangular portion
overlapping lies on the north-west corner as against the
title deed description. This is the reason why the courts
below accepted Ext.C2(c) and did not accept Ext.C2(b).
Therefore, it could not be held that the courts below went
wrong in rejecting Ext.C2(b) and accepting Ext.C2(c). It is
relevant to note that the Appellate Court also considered
the said contention. In paragraph No.17 of the judgment,
the Appellate court observed that the western boundary of
Ext.A1 property is Ext.A2 property and Ext.A2 property is
another 1 cent property formed part of Ext.B3. Therefore, a
portion of land on the western boundary of Ext.A1 could
have proximity with the western road on the western side
of the property of the defendant covered by Ext.B2.
Therefore, Ext.C2(b) plan showing access to the road as
against the description in Ext.A2 was rejected by the
Appellate Court also.
21. Summarizing the matter in controversy, it is
emphatically clear that Anandavalli Amma segregated
southern portion of her property having an extent of 1 Acre
and 85 cents in favour of her daughter Chandrapraba Bhai.
If so, the boundary separating the property allotted to
Chandrapraba Bhai with that of the property retained by
Anandavalli Amma should be a plain straight line without
any deviation, since the title deed description does not
show any deviation. Here, Ext.C2(b) plan was prepared
overlapping a triangular portion so that the boundary as
per Ext.C2(b) plan was prepared not as a plain line, but as a
line where there is a triangular portion projecting towards
west, so as to have access to the road. Therefore, on no
stretch of imagination, it could be found that Ext.C2(b) plan
would tally with the title deed descriptions, in any manner.
Whereas Ext.C2(c) would qualify the title deed descriptions
to act upon the same. For these reasons, the trial court as
well as the Appellate Court accepted Ext.C2(c) plan and
fixed XY line in Ext.C2(a) plan as the boundary line between
the plaint schedule item No.1 property with that of the
counter claim schedule property i.e. plaint schedule item
No.2 property.
22. Therefore, the substantial questions of law
answered holding that the courts below rightly accepted
Ext.C2(c) plan. Coming to the substantial question of law
(d), when the title deed descriptions would show the proper
lie of the property, the same could not be changed in order
to give road access to the plaintiffs' property and the
plaintiffs were well known about the fact that they
purchased the said property without any road access. In
such situation, merely because the property of the plaintiffs
would loose direct road access if Ext.C2(c) plan is accepted
cannot be a reason to reject Ext.C2(c) plan and to accept
Ext.C2(b) plan.
In view of the above discussion, it has to be held
that the decree and judgment of the trial court is perfectly
in order and the Appellate Court also rightly confirmed the
same. Thus, there is no reason to revisit the concurrent
verdicts, in any manner and as such this regular second
appeal stands dismissed.
Sd/-
A. BADHARUDEEN
JUDGE
SK
