Kerala High Court
Sivanandan vs Sreeja on 1 November, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
RSA NO. 412 OF 2024
AGAINST THE JUDGMENT DATED 20.02.2024 IN A.S. NO.4/2022 OF
SUB COURT, KOTTARAKARA ARISING OUT OF JUDGMENT DATED 27.02.2021
IN O.S. NO. 104/2009 OF MUNSIFF COURT, KOTTARAKARA.
APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 2:
1 SIVANANDAN,
AGED 60 YEARS
S/O.GOPALAN, RESIDING AT ANAND, AZHANTHAKUZHI, NILAMEL
MURI, NILAMEL VILLAGE, KOTTARAKKARA FROM KALA SADANAM,
AZHANTHAKUZHI, NILAMEL VILLAGE, KOTTARAKKARA TALUK,
KOLLAM DISTRICT, PIN - 691535
2 KAVITHA ANAND,
AGED 41 YEARS
D/O.SIVANANDAN, RESIDING AT ANAND, AZHANTHAKUZHI,
NILAMEL MURI, NILAMEL VILLAGE, KOTTARAKKARA FROM KALA
SADANAM, AZHANTHAKUZHI, NILAMEL VILLAGE, KOTTARAKKARA
TALUK, KOLLAM DISTRICT., PIN - 691535
BY ADVS.
B.KRISHNA MANI
N.V.SANDHYA
DHANUJA M.S
RESPONDENTS/RESPONDENTS/PLAINTIFF AND ADDITIONAL 3RD DEFENDANT:
1 SREEJA,
AGED 53 YEARS
W/O. BAHULEYA PANICKER, RESIDING AT ANUPAMA, JAI PURAM,
RSA NO. 412 OF 2024 2
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POWDIKONAM P.O., THIRUVANANTHAPURAM-695588., PIN -
691535
2 BINOJ,
AGED 52 YEARS
S/O.REGHUTHAMAN, KUVARAKUVILA VEEDU, POOVAMPARA,
ALAMCODU, MELATTINGAL, ATTINGAL, THIRUVANANTHAPURAM,
PIN - 695558
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
01.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 412 OF 2024 3
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JUDGMENT
1. The defendants 1 and 2 in the suit are the appellants. The suit, as
amended, is filed by the 1st respondent/plaintiff for declaration of
title, recovery of possession, fixation of boundary, and permanent
prohibitory injunction and consequential reliefs. The reliefs are
sought with respect to plaint B schedule property having an extent
of 1.721 Ares, which is part of the plaint A schedule property of 20
cents.
2. As per the plaint averments plaint A schedule property having an
extent of 20 cents belongs to the plaintiff. She derived the said
property as per Ext. A1 Settlement Deed of the year 1989
executed by the parents of the plaintiff. On the basis of the very
same Settlement Deed, 10 cents was settled in favour of the 3 rd
defendant, who is the brother of the plaintiff. The plaint A schedule
property having an extent of 20 cents is situated on the eastern
side of the 10 cents settled in favour of the 3 rd defendant. The
father of the plaintiff and the 3 rd defendant derived the total extent
of 30 cents as per Ext.A3 document of the year 1970. The said 30
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cents is lying in two blocks 10 cents on the west and 20 cents on
the east. There was a narrow channel between the two plots
running in north-south direction. The 3 rd defendant sold 8.20 cents
out of the 10 cents derived as per Ext. A1 to the defendants 1 and
2 as per Ext. A6/B1 Sale Deed. Defendants 1 and 2 have been
paying land tax for this 8.20 cents, equivalent to 3.31 Ares. The 3 rd
defendant described the property in Ext.A6 wrongly with a view to
trespass upon plaint A schedule property. Taking undue advantage
of the same, the defendants tried to trespass into plaint A schedule
property, which is on the western side of plaint A schedule property.
The extent originally shown in Plaint B Schedule was 2 cents of
land. According to the plaintiff, during the pendency of the suit, the
defendants trespassed further into plaint A schedule property with
an extent of 2.225 cents more violating the Interim Injunction
Order. Hence, B Schedule was amended to include 4.250 cents.
The suit was for declaration of title possession of plaint A and B
schedule property, for recovery of plaint B schedule property,
fixation of the western boundary, for a permanent prohibitory
injunction, and consequential reliefs.
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3. The defendants 1 and 2 filed Written Statements contending inter
alia that as per Ext.B1 the 1 st defendant derived on 1.31 Ares and
the 2nd defendant derived 2 Ares; that the property of the 2 nd
defendant lies on the west of the channel in Survey No. 15/3; that
the defendants have not trespassed or committed any mischief in
the property belonging to the plaintiff; that the authorities
constructed a channel through the property allotted to the 3 rd
defendant under Ext.A1 settlement deed, as such the property of
the 3rd defendant was split into two; that plaintiff obtained only 20
cents of land as per Ext.A1: it is situated in Resurvey No.15/10-2;
that if the plaintiff gets 1.31 ares in Resurvey No.15/10-1, the
plaintiff will come into possession of 9.40 ares.
4. The 3rd defendant also filed a Written Statement contending that
the property on the western side of the plaint schedule property
belongs to the 1st and 2nd defendant and that since the 3 rd
defendant sold the property to the 1st and 2nd defendant, the 3rd
defendant is an unnecessary party to the suit. He has admitted the
existence of channel through properties.
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5. The Trial Court decreed the suit declaring the title and possession
of the plaintiff or plaint A & B Schedule Properties as marked in
Ext.C3 plan, allowing the plaintiff to recover Plaint B schedule
property and passing permanent prohibitory injunction restraining
the defendants from trespassing into the Plaint A and B schedule
properties and from making any kind of obstruction and hindrance
to the plaintiff to peacefully enjoy the properties. Though the
defendants 1 and 2 filed appeal before the First Appellate Court
the same was dismissed confirming the judgment and decree of
the Trial Court.
6. I heard the learned counsel for the appellant Sri. B. Krishna Mani.
7. The learned counsel for the appellant contended that the Advocate
Commissioner has not found the excess land, which is specifically
stated in Ext. A1 document. The Schedules to the Ext. A1
document would reveal that the parents of the plaintiff settled 20
cents & excess to the plaintiff and 10 cents & excess to the 3 rd
defendant. The said excess is situated on the eastern side of the
plaint A schedule property. If such excess land is identified, the
plaintiff would get the extent of 20 cents even without Plaint B
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Schedule property and the Plaint B schedule property will form a
part of the property settled in favour of the 3 rd defendant as per
Ext.A1. By the judgment and decree of the Trial Court, the plaintiff
will have more land since the plaint B schedule property is given to
the plaintiff over and above the excess land on the eastern side of
the plaint schedule property.
8. It is true that the excess is stated in both the schedules of Ext.a1
allotted to the plaintiff and the 3 rd defendant. But when Ext. A6 is
executed by the 3rd defendant to defendants 1 and 2; the property
included is only 3.31 Ares. No excess is included in Ext.A6.
Admittedly, the land of the 3rd defendant was taken for the channel,
and hence, he had lesser land than the 10 cents derived as per
Ext.A1. That is why a lesser extent of 3.31 ares is included in
Ext.A6. The defendants have no case that the 3 rd defendant has
retained any portion of the land with him while executing Ext.A6.
9. The Trial Court appointed the CW1 Advocate Commissioner, and
the Advocate Commissioner found that there is no difference in
measurements between the Survey and Resurvey Plan. In Ext.C3,
the Plaint A Schedule Property is found to be having 8.09 ares
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equivalent to 19.999 cents in Resurvey Nos.15/10 which is marked
as 'GHIJKLMNOPQG'. The Plaint B Schedule Property lies to the
west of Plaint A Schedule Property is found to have 1.721 ares in
Resurvey No.15/10-2 which is marked as 'QRSGQ'. The 'QG' line
is fixed as the western boundary separating plaint A scheduled
property and the defendants property. The defendants 1 and 2 are
found to be in possession of 3.41 Ares of land equivalent to 8.43
cents which is marked as 'ABCDA' in Survey No.15/3 in Ext.C3.
The channel was found to have 0.73 ares in Resurvey No.154/4,
which is marked as 'BCGQB'. Thus, defendants 1 and 2 are in
possession of the area in excess of the area covered by Ext.A6.
The plaintiff will get the area derived by Ext.A1 only if he gets the
Plaint B Schedule property. If Plaint B schedule property is given to
defendants 1 and 2, their extent would be increased to 4.14 ares,
equivalent to 10.2 cents. It would clearly prove that the
measurements in Ext.C3 are in accordance with the Ext.A1
Settlement Deed. No contention was advanced either before the
Trial Court or before the First Appellate Court from the side of
defendants 1 and 2 that there is excess land on the eastern side of
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the plaint A schedule property. If there was excess land on the
eastern side of the Plaint A Schedule Property, defendants 1 & 2
could have pointed out the same to the Advocate Commissioner.
Exts.C3 would reveal that the Advocate Commissioner has
correctly identified the properties belonging to the plaintiff and the
defendants. The areas found by the Advocate Commissioner tally
with the extent covered by the title deeds of the parties.
10. In view of these circumstances, I do not find any reason to interfere
with the judgments and decrees passed by the Trial Court as well
as the First Appellate Court, and hence, the Regular Second
Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
mus
