Kerala High Court
Kamalamma vs Shibu on 11 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
RSA NO. 710 OF 2014
AS NO.127 OF 2008 OF DISTRICT COURT, ALAPPUZHA
OS NO.3 OF 2001 OF PRINCIPAL MUNSIFF COURT, ALAPPUZHA
APPELLANTS/RESPONDENTS 2 TO 5/LEGAL REPRESENTATIVESS OF THE PLAINTIFF
1 KAMALAMMA, AGED 60 YEARS
W/O K.T. BUOY, KANJOOCHIRA HOUSE, PARAVOOR VILLAGE,
ALAPPUZHA
2 BIJI, AGED 42 YEARS
S/O K.T. BUOY, KANJOOCHIRA HOUSE, PARAVOOR VILLAGE,
ALAPPUZHA
3 BINEESH, AGED 40 YEARS
S/O K.T. BUOY, KANJOOCHIRA HOUSE, PARAVOOR VILLAGE,
ALAPPUZHA
4 BIJOY, AGED 32 YEARS, S/O K.T. BUOY, KANJOOCHIRA HOUSE,
PARAVOOR VILLAGE, ALAPPUZHA
BY ADVS.
SRINATH GIRISH
P.JERIL BABU
HALVI K.S.
RESPONDENTS/APPELLANTS/DEFENDANTS
1 SHIBU, AGED 41 YEARS
S/O PRABHAKARAN, RETHI NIVAS, PARAVOOR MURI, PARAVOOR
VILLAGE, ALAPPUZHA - 688001
2 PRABHAKARAN, AGED 68 YEARS
RETHI NIVAS, PARAVOOR MURI, PARAVOOR VILLAGE, ALAPPUZHA
BY ADVS.
SRI.R REKHA
V.V.ASOKAN (SR.)
SRI.R.AZAD BABU
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 3.4.2024,
THE COURT ON 11.04.2024 DELIVERED THE FOLLOWING:
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2
C.R.
C.PRATHEEP KUMAR, J.
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R.S.A.710 of 2014
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Dated : 11th April, 2024
JUDGMENT
1. This Second Appeal is filed under Section 100 r/w Order XLII of CPC
by the additional respondents 2 to 5 in A.S.127/2008 on the file of the
District Court, Alappuzha, who are the legal representatives of the
plaintiff in O.S.3/2001 on the file of the Principal Munsiff's Court,
Alappuzha, against the judgment dated 30.11.2013, allowing the above
appeal and dismissing the above Suit. For the purpose of convenience,
the parties are hereafter referred to as per their rank before the trial
Court.
2. The brief facts necessary for the disposal of this appeal are extracted
below :
The plaintiff obtained 37.25 cents of landed property comprised in
Survey No.335/4/11 of Paravur (old Punnapra) village as item No.1 in
Ext.A1 gift deed No.424/75 of SRO, Alappuzha. As per Ext.A2 sale
deed, he had sold 13 cents to the 1 st defendant and as per Ext.A3, 14
cents was sold to the 2nd defendant from out of the above 37.250 cents.
The remaining 10.250 cents is the plaint schedule property. Alleging that,
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because of some mistake in the re-survey records, the defendants are not
permitting him to enjoy the plaint schedule property, he filed the suit for
declaration of title and recovery of possession of the plaint schedule
property. The case of the defendants was that though the plaintiff
obtained 37.250 cents as per Ext.A1 in the year 1975, portions of the
same were utilized for widening the pathway on the southern side and
National Highway on the western side, that the remaining property
available with the plaintiff was only 27 cents and the above entire 27
cents was sold to defendants 1 and 2 as per Ext.A2 and A3 sale deeds.
3. The learned Munsiff, relying upon Ext.C1 and C1(b) Commission
report and sketch declared the plaintiff's title over the plaint schedule
property. The prayer for recovery of possession and injunction was also
granted. However, the 1st Appellate Court reversed the finding of the trial
court and dismissed the Suit. Aggrieved by the above judgment and
decree of the first Appellate Court, the legal representatives of the
plaintiff preferred this Second Appeal.
4. At the time of admission, after hearing both sides, this Court
formulated the following substantial question of law.
"Did not the lower appellate court mis-apply the principle
that in case of conflict between description of area and
boundaries, the later will prevail to the facts situation of the
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case ?
5. Both sides were heard in detail, on the above question of law.
6. Admittedly, as per Ext.A1 gift deed, the plaintiff obtained 37.250 cents
of property. While according to the plaintiff, from the above 37.250
cents, he had sold 13 cents to the 1 st defendant (D1) as per Ext.A2 and 14
cents to the 2nd defendant (D2) as per Ext.A3 and as such he is entitled to
get back the remaining 10.250 cents, the specific case of the defendants
is that at the time when Exts.A2 and A3 sale deeds were executed by the
plaintiff in their favour on 13.1.1989, the plaintiff was in possession of
only 27 cents and the remaining property was gone for widening the
pathway on the southern side as well as the National Highway on the
western side.
7. In order to substantiate the above contention, the defendants relied
upon the description of property in Exts.A2 and A3 documents. In
Exts.A2 and A3, it is categorically stated that out of the 37.250 cents
obtained as per Ext.A1, certain portion was utilized for the pathway on
the southern side and National Highway on the western side and the
remaining available property was only 27 cents, which is described
within the four boundaries mentioned in Exts.A2 and A3. Out of the
above 27 cents admittedly available with the plaintiff, 13 cents on the
eastern side was sold to the 1st defendant as per Ext.A2 and the western
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14 cents was sold to the 2nd defendant as per Ext.A3 sale deed. Therefore,
going by the above description of the property in Exts.A2 and A3
documents executed by the plaintiff, at the time of executing those
documents, he had only 27 cents of property in his possession. As per the
recitals in Exts.A2 and A3 sale deeds, the above entire 27 cents was sold
by him to the defendants 1 and 2. Thereafter, no property was available
with the plaintiff, as claimed in the plaint.
8. Since similar boundary descriptions are given in Exts.A2 and A3, the
learned counsel for the plaintiff would argue that, the above boundaries
are not correct. Therefore, it was argued that the general rule that in case
of conflict between description of area and boundaries, the boundaries
will prevail, does not apply to the facts of this case and also that the
above principle as applied by the first Appellate Court is incorrect. To
substantiate the above contention the learned counsel for the plaintiffs
relied upon the decision of a Division Bench of this Court in Savithri
Ammal v. Padmavathi Amma, 1990 KHC 295 and the decision of a
Single Bench in Chandrakumar v. Narayanan Bahuleyan and
Another, 2011 (2) KHC 884. In the decision in Savithri Ammal (supra),
the Division bench held that :-
"Where there is a difference in the extent and the boundaries
covered by documents, one or other. which is clearer and more
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specific has to be preferred. In some cases it may be the
boundary. In some other cases it may be the extent and in yet
other cases it may be the side measurements. There is no
invariable rule in this regard. None of the decisions on which
the appellants rely has held positively that in all cases of such
conflict the boundary alone shall prevail."
9. In Chandrakumar (supra), the learned Single Judge, after referring
various decisions, held that usually in such circumstances, boundaries
predominate. However, the learned Judge also made it clear that the
above principle is not an inflexible rule.
10. It is true that the boundary descriptions in Exts.A2 and A3 are entirely
different from that in Ext.A1. In Ext.A1, the boundaries of 37.250 cents
are mentioned by using survey numbers of the adjacent properties. Both
in Exts.A2 and A3, identical boundaries are given. The boundary
descriptions in Exts.A2 and A3 are as follows :
East : Property of Kulaparambil Shibuvan
South : Vazhi
West : National Highway
North : Property of Narayanan
11. However, it is to be noted that in Exts.A2 and A3, it is made clear that
the above boundaries are the common boundaries of the entire 27 cents
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covered by both Exts.A2 and A3 and not the separate boundaries of 13
cents covered by Exts.A2 and 14 cents covered by Ext.A3. If the above
boundaries are taken as that of the entire 27 cents, there is no ambiguity
or confusion. Therefore, there is no merits in the contention that the
above boundaries given in Exts.A2 and A3 are incorrect.
12. The plaintiff has no consistent case with regard to the exact area, lie
and location of the property belonging to him, after the execution of
Exts.A2 and A3. As I have already noted above, in Exts.A2 and A3, the
plaintiff categorically admitted that after the formation of the southern
pathway and western National Pathway, the extent of property remained
with him was only 27 cents. All the above 27 cents were sold to
defendants 1 and 2 as per Exts.A2 and A3. Therefore, he has not retained
any balance property with him, either in Ext.A2 or in Ext.A3.
13. With regard to the extent of the plaint schedule property also, the
plaintiff' has no consistent case. In the original plaint he claimed that the
extent of the plaint schedule property is 9.25 cents. However, it was
subsequently amended in the year 2008. After the amendment, now the
extent of the plaint schedule property is to 10.25 cents
14. The plaintiff also has no idea about the lie and location of the property
claimed. In the original plaint, his case was to the effect that the plaint
schedule property situates on the extreme southern side of the entire
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37.25 cents. Subsequently, it was also amended in the year 2008. As per
the amended plaint, the plaint schedule property situates in between the
properties covered by Exts.A2 and A3. It was in the above context that
the Advocate Commissioner prepared two sketches - Exts.C1(a) and
C1(b). In Ext.C1(a) the plaint schedule property is shown in the east-west
direction along the southern side of the entire 37.250 cents, in tune with
the description in the un-amended plaint. In Ext.C1(b) the plaint schedule
property is shown in between the properties covered by Exts.A2 and A3,
in tune with the description in the amended plaint. The trial Court
decreed the suit relying on Ext.C1(b) plan. In this context it is also to be
noted that as per Exts.P2 and P3, no property is kept in between the
properties covered by those documents.
15. Even as per Exts.A2 and A3, certain portion of the 37.250 cents were
utilized for the southern pathway as well as for the western National
Highway. Therefore, even according to the plaintiff, there was shortage
in the extent of the property obtained by him as per Ext.A1. However, in
Exts.C1(a) and C1(b) the Commissioner has shown the entire 37.250
cents, without any shortage. It was in the light of those circumstances the
1st Appellate Court found that Ext.C1(b) plan does not correctly show the
properties covered by Exts.A1, A2 and A3.
16. From the available evidence it can be seen that the plaintiff' has no
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idea about the boundaries of the plaint schedule property also. As per the
plaint schedule description, the property of one Shanmugham situates in
the east, the property of Prabhakaran situates on its north and the
National Highway situates on its west. The above boundary descriptions
does not tally with the plaint schedule property shown in Ext.C1(b). On
that ground also, the 1st Appellate Court was justified in rejecting
Ext.C1(b) plan.
17. On the other hand, the boundaries in Exts.A2 and A3 substantiates the
case of the defendants that at the time of execution of those documents
the plaintiffs had only 27 cents of property and that the entire 27 cents
was sold to defendants 1 and 2 and thereafter there was no property left
with the plaintiff.
18. The fact that the plaintiff filed the Suit only on 1.1.2001, after 11 years
and 352 days after the execution of Exts.A2 and A3 sale deeds, is another
circumstance probabilising the case of the defendants.
19. The plaintiff also could not produce any documents including land tax
receipts to show that he was paying any land tax for the plaint schedule
property after the execution of Ext.A2 and A3 sale deeds. Admittedly the
plaintiff is not in possession of the plaint schedule property. The date on
which and the manner in which the plaintiff lost possession over the
schedule property is also not disclosed.
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20. In this context it is also to be noted that the original plaintiff did not
mount the box to swear his case on oath and to offer himself to be cross-
examined by the defendants. Instead, on his side, his son alone was
examined to prove the plaintiffs' case. In the above circumstances, an
adverse inference is liable to be drawn against the defendants under
illustration (g) to Section 114 of the Indian Evidence Act [Ramesh
Kumar & Anr.v Furu Ram & Anr. 2011 KHC 4718; Iqbal Basith
and Others v. N. Subbalakshni and Others, 2020 KHC 6709]. In the
facts and circumstance of the case, non-examination of the plaintiffs is
also crucial and fatal to the plaintiff's case.
21. It is true that generally when there is a conflict between area and
boundary, the boundary will prevail. However, as held in the decision in
Savithri Ammal (supra) and Chandrakumar (supra), the above rule is
not an inflexible one. In the present case, the properties of the defendants
could be clearly identified using the boundaries given in Exts.A2 and A3,
while it could not be identified using the area given in the document. In
the above circumstances, it is to be held that in the present case, the
principle that "when there is conflict between area and boundary,
boundary will prevail" squarely applies.
22. Relying upon the decision in Savarimuthu Nadar Chellayan Nadar
v. Kanakku Kali Pillai Padmanabha Pillai, 1957 KHC 184, the
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learned counsel for the plaintiffs would argue that the maxim "falsa
demonstratio non nocet" is to be applied in this case, in support of his
argument that if there be an adequate and sufficient description with
convenient certainty of what was meant to pass, an erroneous addition to
the description will not vitiate it. It is true that an error will not
necessarily invalidate a document if it can be determined from the other
facts in it. However, in this case the above maxim does not in any way
help the plaintiff as the defects in his case are so fatal that it could not be
set right by any other means.
23. In this case there is absolutely no evidence to prove that the plaintiffs
had title or possession over the plaint schedule property as claimed and
as such, the first Appellate Court was justified in setting aside the
judgment and decree of the trial court and in dismissing the suit. I do not
find any illegality or irregularity in the finding of the first appellate court
so as to call for any interference.
In the result, the Second Appeal is dismissed. However,
considering the facts, I order no costs.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/3.4.2024
