Kerala High Court
A.P.Sundaran vs Ramakrishnan on 21 May, 2025
RSA No.876 of 2014 1 2025:KER:35524
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 21ST DAY OF MAY 2025 / 31ST VAISAKHA, 1947
RSA NO. 876 OF 2014
AGAINST THE JUDGMENT AND DECREE DATED 13.12.2013 IN A.S.
NO.136 OF 2010 OF II ADDITIONAL DISTRICT COURT, PALAKKAD ARISING
OUT OF THE JUDGMENT AND DECREE DATED 29.01.2010 IN OS NO.557 OF 2004
OF MUNSIFF COURT, CHITTUR
APPELLANT/APPELLANT/1ST DEFENDANT :
A.P.SUNDARAN
AGED 58 YEARS
PATTATH HOUSE,KANNIMARI,PATTANCHERY VILLAGE,
CHITTUR TALUK, NOW RESIDING AT PATTATHANAM HOUSE,
MUHAMMA.P.O,MUHAMMA,ALAPPUZHA DISTRICT.
BY ADVS.
SRI.P.M.JOSHI
SMT.ELIZABETH KOSHY
SMT.SIJI K.PAUL
RESPONDENTS/RESPONDNETS/PLAINTIFF/SUPPL.DEFENDANTS NO.2 TO 8 :
1 RAMAKRISHNAN
AGED 63 YEARS
S/O.KRISHNANKUTTY EZHUTHASSAN,
PATTATH HOUSE,KANNIMARI,PATTANCHERY VILLAGE,
CHITTUR TALUK.
2 P.K.GOPALAN
AGED 76 YEARS
S/O.P.K.KRISHNANKUTTY EZHUTHASSAN,
PATTATH HOUSE,KANNIMARI,PATTANCHERY VILLAGE,
CHITTUR TALUK.NOW RESIDING AT THEKKEGRAMMAM,
CHITTUR TALUK.
RSA No.876 of 2014 2 2025:KER:35524
3 P.K.SOMASEKHARAN
AGED 61 YEARS
S/O.KRISHNANKUTTY EZHUTHASSAN,
PATTATH HOUSE,KANNIMARI,PATTANCHERY VILLAGE,
CHITTUR TALUK.
4 P.K.SASEENDRAN, AGED 59 YEARS,
S/O.KRISHNANKUTTY EZHUTHASSAN,
PATTATH HOUSE,KANNIMARI,PATTANCHERY,
CHITTUR TALUK, NOW RESIDING AT THEKKEGRAMAMA,
CHITTUR TALUK (DELETED)
5 T.C.INDIRA
AGED 61 YEARS
W/O.P.K.RAMAKRISHNAN,RESIDING AT -DO-
6 PONNUKUTTY
AGED 86 YEARS
W/O.P.K.KESAVAN, RESIDING AT -DO-. (DELETED)
7 CHANDRAN,(DELETED)
AGED 61 YEARS
S/O.PONNU,RESIDING AT -DO-.
8 KRISHNAN,(DELETED)
AGED 61 YEARS
S/O.P.K.APPUCHAMI,RESIDING AT -DO-. (DELETED)
(THE RESPONDENTS 4,6,7 AND 8 ARE DELETED FROM THE PARTY
ARRAY AS PER ORDER DATED 17.12.2021 IN IA.1/2021)
BY ADVS. SRI.SAJAN VARGHEESE K., FOR R1,R3 AND R5
SRI.ABE RAJAN, FOR R1, R3 AND R5
SRI.LIJU. M.P, FOR R1,R3 AND R5
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
21.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA No.876 of 2014 3 2025:KER:35524
EASWARAN S., J.
--------------------------------
R.S.A. No.876 of 2014
------------------------------------------
st
Dated this the 21 day of May, 2025
JUDGMENT
The appellant herein is the 1st defendant in O.S. No.557 of
2004 on the files of the Munsiff Court, Chittur and the appellant
in AS No.136 of 2010 on the files of the II Additional District Court,
Palakkad.
2. The brief facts necessary for disposal of the appeal are as
follows:
The respondent herein/plaintiff filed O.S. No.557 of 2004
seeking for fixation of boundary, and mandatory and prohibitory
injunction directing the appellant/defendant to remove the trees
that were planted in the property belonging to the plaintiff. The
plaint A schedule property belongs to the plaintiff's father,
Sri. Krishnankutty Ezhuthassan, as per the partition deed No.1615/
1979 of SRO, Chittur. Consequent to the death of the father of the
plaintiff in 1984, the plaint schedule property devolved upon the
legal heirs including the plaintiff. The plaint A schedule property
contained certain ridges which is shown as plaint B schedule and
that there is a clear level difference in between the plaintiff's and
RSA No.876 of 2014 4 2025:KER:35524
defendant's property. According to the plaintiff, the defendant's
property lies about five (5) feet lower than the plaint A schedule
property. On a misconception regarding the right over the
property, the 1st defendant trespassed into the property of the
plaintiff and planted certain trees and thus encroached into the
property of the plaintiff. Thus, the plaintiff sought for a mandatory
as well as prohibitory injunction and also for the fixation of the
boundary of the plaintiff. The defendant appeared and contested
the suit raising the contention that the plaintiff has not chosen to
implead the co-owners of the property. The existence of the ridge
was also denied by the defendant. It was further contended that
the defendant purchased the property by virtue of Ext.B2 deed in
the year 1999 and that the property is covered in Resurvey
No.284/5 Block No.47. Since the property is in exclusive possession
of the defendant, the prayer for fixation of boundary is not
maintainable. It was further contended that even if the plaintiff had
a right over the portion of the property, the same has been lost due
to the adverse possession of the defendant over the last 50 years.
Therefore, the defendant prayed for dismissal of the suit.
3. On behalf of the plaintiff Exts.A1 to A4(a) documents were
produced before the trial court and PW1 was examined. On behalf
RSA No.876 of 2014 5 2025:KER:35524
of defendant Exts.B1 to B6 documents were produced and DW1
and DW2 were examined. The plaintiff also sought the appointment
of an Advocate Commissioner for local inspection. The Advocate
Commissioner initially filed Exts.C1 and C1(a) report and rough
sketch. Since the said report was incomplete, the trial court
appointed a fresh Advocate Commissioner who filed Ext.C2 report
and C2(a) survey plan. Dissatisfied with the same, the plaintiff
again filed I.A. No.1690 of 2008 wherein the trial court remitted
the report of the 2nd Advocate Commissioner with a direction to
measure and identify the plaintiff's and defendant's property.
Accordingly, Ext.C3 report and Ext.C3(a) survey plan were also
marked. Additionally, Exts.C4 and C5 were also marked. Exts.X1 to
X1(c) were the 3rd party exhibits marked through DW1. The trial
court, on appreciation of the documents, framed the following
issues:
(1) Whether the plaint B-schedule property is identifiable?
(2) Whether the plaintiff is entitled to get a decree of mandatory
injunction as prayed for?
(3) Whether the plaintiff is entitled to get a decree of
prohibitory injunction as prayed for?
(4) Relief and Cost?
Additional Issues
(1) Whether the suit is bad for nonjoinder of necessary parties?
RSA No.876 of 2014 6 2025:KER:35524
(2) Whether the plaintiff is entitled to get the southern, eastern,
and western boundary of the plaint schedule property fixed
through court?
(3) If so, which are the correct boundaries?
(4) Whether the plaintiff can be permitted to put up barbed fence
upon the boundaries fixed through court?
4. On appreciation of the evidence, the trial court came to
the conclusion that the Advocate Commissioner has correctly
identified the property in Ext.C3(a) survey plan and, therefore,
granted the relief to the plaintiff by decreeing the suit and fixing
the boundaries on the eastern, western and southern boundary of
the plaint A schedule property as per Ext.C3(a) plan. The plaintiff
was also given permission to put up a barbed fence upon the
eastern, western and southern boundary of the plaint A Schedule
property. The 1st defendant was restrained by a permanent
prohibitory injunction from trespassing into the plaint A schedule
property.
5. Aggrieved by the judgment and decree passed by the trial
court, the appellant herein/1st defendant filed the appeal, AS
No.136 of 2010 which was dismissed by the 2 nd Additional District
Court, by judgment and decree dated 13.12.2013, confirming the
judgment and decree passed by the trial court. Aggrieved by the
RSA No.876 of 2014 7 2025:KER:35524
same, the present appeal is preferred by the appellant/1 st
defendant.
6. While admitting the appeal as per order dated 29.9.2022,
this court framed the following substantial questions of law.
" (1) Whether the suit filed for fixation of boundary without
a prayer for recovery of possession is maintainable?
(2) Whether fixation of boundary as per Exts.C3 and C3(a)
commission report is legal and proper?"
7. Heard Sri. PM Joshi, the learned counsel appearing for the
appellant/1st defendant, and Sri. Sajan Varghese, the learned
counsel appearing for the respondent/plaintiff.
8. The learned counsel appearing for the appellant would
primarily contend that the identification of the property by the
Advocate Commissioner is completely erroneous inasmuch as the
Advocate Commissioner has not identified the property with
reference to the title deed of the appellant/defendant as well as the
survey records. The Advocate Commissioner had identified the
property merely on the basis of the resurvey records, which is
impermissible under law. He would submit that under Ext.C2
report and Ext.C2(a) plan, the Advocate Commissioner had
identified the property with reference to the old survey records,
and therefore, the court below had no reason to discard the said
RSA No.876 of 2014 8 2025:KER:35524
report and appoint a fresh Advocate Commissioner for local
inspection. Additionally, it is pointed out that going by the
averments in the plaint, there is a clear admission that the 1 st
defendant had trespassed into the plaint schedule property. If the
plaintiff had a case that the defendant had trespassed into the
property, a suit for fixation of boundary alone will not lie in the
absence of any prayer for recovery of possession. This crucial
aspect has been completely lost sight of by both the courts and the
judgment and decree of the trial court, as confirmed by the
appellate court requires to be interfered with, in exercise of the
powers under Section 100 of the Code of Civil Procedure.
9. Per contra, Sri. Sajan Varghese, the learned counsel
appearing for the respondent/plaintiff, would vehemently point out
that both the courts have concurrently found against the
appellant/1st defendant and therefore the relief sought for in this
appeal is not maintainable. He would further point out that the
Advocate Commissioner had identified the property correctly and
that there is no room for any doubt as regards the report of the
Advocate Commissioner. He would further point out with reference
to Ext.B2 document of title of the appellant/1st defendant that the
appellant did not have any property other than Resurvey No.284/5.
RSA No.876 of 2014 9 2025:KER:35524
With reference to Ext.C3(a) plan, Sri. Sajan Varghese the learned
counsel would assert before this Court that the report of the
Advocate Commissioner is clear to the effect that the defendant did
not have any property other than resurvey No.284/5 whereas the
plaintiff had property in other survey numbers. He would further
refer to the admission of the defendant who was examined as DW2,
in which he had categorically admitted that the ridges which are in
existence would form part of the plaintiff's property. Therefore,
according to the learned counsel, the plaintiff is entitled to get a
decree based on the said admission of DW2.
10. I have considered the rival submissions raised across the
Bar and have perused the records.
11. As stated above, while admitting this appeal, this Court
had framed two substantial questions of law. Firstly, this Court
shall deal with the first substantial question of law framed by this
Court which reads as under.
" a. Whether the suit filed for fixation of boundary
without a prayer for recovery of possession is
maintainable."
12. In order to decide this issue, one must closely examine
the averments contained in the plaint. The averments contained in
RSA No.876 of 2014 10 2025:KER:35524
the plaint would specifically show that the plaintiff had described
the cause of action for filing the suit as the encroachment made by
the defendant into the plaint A schedule property and started
cultivation.
13. Paragraph 4 and 5 of the plaint reads as under:
4. വ്യവ്ഹാരകാരണം - അന്യായം 'ബി' പട്ടിക വ്ഹകളിൽ
കകയയറി ന്ട്ടിട്ടുള്ള കൈകളും വ്ൃക്ഷ ചമയങ്ങളും എടുത്ത്
മാറ്റണമമന്നാവ്ശ്യമെട്ട്് യന്ാട്ടീസയച്ച 28.10.2004 ൈിയൈിക്ും
അൈുകൾക്ു യശ്ഷവ്ും വ്ഹകൾ സ്ഥിൈി മചയ്യുന്നൈും ഈ
യകാടൈി അധികാര ൈൃക്കവ്ുമായ പട്ടയേരി വ്ിയേജിൽ
മവ്ച്ചും ഉത്ഭവ്ിച്ചു .
5. ഈ വ്യവ്ഹാര ന്ിവ്ൃത്തിക്ുള്ള സലയും യകാർട്ട്
ഫീസും ൈാമെ യചർത്ത പ്പകാരവ്ുമാകുന്നു .
അൈിന്ാൽ ബഹുമാന്മെട്ട യകാടൈിയിമല ദയവ്ുണ്ടായി
A. അന്യായം 'A' പട്ടിക വ്ഹകളുമട കിെക്ും, മൈക്ും,
പടിഞ്ഞാറും അൈിർത്തികൾ ന്ിശ്ചയിച്ചും അൈിർത്തികൾ
ന്ിശ്ചയിച്ച യശ്ഷം കമ്പി യവ്ലി മകട്ടുവ്ാൻ അന്യായക്ാരമന്
അന്ുവ്ദിച്ചും .
B. അന്യായം 'എ' പട്ടിക വ്ഹകളുമട ഭാഗമായ 'ബി' പട്ടിക
വ്ഹകളിൽ പ്പൈി ന്ട്ടു പിടിെിച്ചിട്ടുള്ള വ്ൃക്ഷച്ചമയങ്ങൾ
മുെുവ്ൻ ഒരു ക്ലിപ് ത സമയത്തിന്ുള്ളിൽ മാറ്റി
പൂർവ്വസ്ഥിൈിയിലാക്ുവ്ാൻ പ്പൈിയയാട് ഒരു Mandatory
ഇൻജംഗ്ഷൻ മൂലം കൽെിച്ചും അപ്പകാരം പ്പൈി മചയ്യാത്ത
പക്ഷം ആയൈ് മചയ്യുവ്ാൻ അന്യായക്ാരമന് അന്ുവ്ദിച്ചും.
C. അന്യായം 'ബി' പട്ടിക വ്ഹകമള പൂർവ്വസ്ഥിൈിയിലാക്ിയ
യശ്ഷം അന്യായം "എ" പട്ടിക വ്ഹകളിൽ പ്പൈിയയാ
ആൾക്ായരാ കയയ്യറുകയയാ യപ്പയവ്ശ്ിക്ുകയയാ മചയ്ത്
യപാകരുമൈന്നും അന്യായം "എ" പട്ടിക വ്ഹകമള
RSA No.876 of 2014 11 2025:KER:35524
അന്യായക്ാരന്ും കുടുംബവ്ും ഇഷ്ടാന്ുസരണം കകവ്ശ്ം
മവ്ച്ച് അന്ുഭവ്ിച്ഛ് വ്രുന്നൈിമന് പ്പൈിയയാ ആൾക്ായരാ
യാമൈാരു ൈടസ്സവ്ും ശ്ലയവ്ും മചയ്ത് യപാകരുമൈന്നും
പ്പൈിമയയും ആൾക്ാമരയും ഒരു ശ്ാശ്വൈ ഇൻജംഗ്ഷൻ മൂലം
ന്ിയരാധിച്ചും.
D. ഈ വ്യവ്ഹാരത്തിമല സകലവ്ിധ യകാടൈി ചിലവ്ുകളും
പ്പൈി കകയാലും സവത്തുക്ൾ മകാണ്ടും അന്യായക്ാരന്്
ൈരുവ്ാൻ കൽെിച്ചും.
E. ഈ വ്യവ്ഹാര മയയയ അന്യായക്ാരൻ അയപക്ഷിക്ുന്നൈും
യകാടൈിക്് യുക്തമമന്ന് യൈാന്നുന്നൈുമായ മറ്റു ന്ിവ്ൃത്തികമള
കൂടി ന്ൽകിയും . ഒരു വിധി ഉണ്ടാവാൻ വണക്കമായി
അപേക്ഷിച്ചുക ാള്ളുന്നു
14. Initially, the prayer sought for was to issue a mandatory
injunction directing the 1st defendant to remove the trees which
were planted in plaint A schedule property as well as plaint B
schedule property. Later, the plaint was amended by order dated
4.7.2009 in IA No.1595 of 2009 to incorporate the prayer for
fixation of boundary for the entire extent of 3.05 Acres of land in
old survey Nos.2035/1, 2035/2, 2030/1 and 2030/2 of the
Pattancherry village. It is trite law that the suit for fixation of
boundary without a prayer for recovery of possession cannot be
maintained. However, if the fixation of the boundary is sought for
only in respect of a small extent of land, then the suit for the
fixation of the boundary can be maintained.
15. In Anjil Vellachi & Others Vs. Mamuni Bhaskaran alias
RSA No.876 of 2014 12 2025:KER:35524
Vattayil Bhaskaran [2009(3)KHC 728], a learned Single Judge of
this Court held that a suit for fixation of the boundary without any
claim for recovery of possession cannot be a shortcut or substitute
for a suit for recovery of possession. Following the aforesaid
judgment, this Court in Susi vs. Sujathan & Another [2022(1) KHC
671], held that if the disputed property is only a narrow strip of
land lying along the boundary of the plaint schedule property which
is identified, a suit for fixation of boundary alone can be maintained
without seeking for recovery of possession.
16. In Kathirummal Chirammal Karthyayani vs. Kunnool
Balakrishnan & Others [2014(2) KHC 108] , this Court held that
the suit for fixation of boundary cannot be maintained without a
prayer for recovery of possession where a large extent of property
lying in different survey numbers is claimed based on the survey
records alone. It was held by this Court in the aforesaid judgment
that if the fixation of boundary is sought along a narrow strip of
land which is identifiable, then a suit for fixation is maintainable
without asking for recovery of possession.
17. If the averments in the plaint are tested along with the
principles laid down by this Court as above, this Court has no
hesitation in its mind to hold that the suit as such framed initially
RSA No.876 of 2014 13 2025:KER:35524
was perfectly maintainable even if the relief for recovery of
possession was not sought for. However, the position drastically
changed when the plaintiff sought to amend the plaint by
preferring I.A. No.1595 of 2009, which was allowed on 4.7.2009,
wherein he had sought for the fixation of the boundary in respect
of the entire extent of 3.05 Acres of land. It is pertinent to mention
that nowhere in the plaint, the plaintiff had scheduled the property
held by the defendant. Though, in a suit for fixation of boundary, it
is not a requirement of law that the defendant's property should
also be scheduled if the boundary sought to be fixed is only on a
strip of land, in the light of the fact that the plaintiff had a specific
case of encroachment by the 1st defendant into the plaint schedule
property and that the fixation of boundary sought for is over an
extent of 3.05 Acres, it was imperative on the part of the plaintiff
to have incorporated the defendant's property also as a schedule
so as to enable the court to correctly fix the boundary between the
two properties.
18. The necessity to incorporate the defendant's property in
the plaint assumes more importance especially since defendant's
predecessor had property in both survey Nos.2016 and 2035/2.
This is clear from a reading of Ext.B2 document of title. When the
RSA No.876 of 2014 14 2025:KER:35524
plaintiff as well as the defendant had properties in the very same
survey number, it was imperative for the plaintiff to have scheduled
the property of the defendant also in the plaint so as to do complete
justice to the parties. Therefore, this Court is of the considered
view that the suit as such framed without seeking recovery of
possession was not maintainable and the first question of law is
answered accordingly.
19. The 2nd substantial question of law raised by this court
reads as under:
" b. Whether fixation of boundary as per Ext.C3 and
C3(a) commission report is legal and proper? "
20. The question is more vexatious because the parties are
at serious variance as regards the sustainability of Exts.C3 and
C3(a). A reading of the judgment of the trial court would show that
the initially appointed Advocate Commissioner submitted Exts.C1
report and C1(a) sketch. The trial court was not satisfied with
regard to the reports and therefore, the same was remitted for
fresh report. By the time, the Advocate who submitted Ext.C1
report had stopped practice and therefore another advocate was
appointed as an Advocate Commissioner who, in turn, submitted
Exts.C2 and C2(a) report and plan. The dispute in the present
RSA No.876 of 2014 15 2025:KER:35524
appeal stems more seriously the moment when C2 and C2(a) were
submitted by the Advocate Commissioner. The plaintiff filed IA
No.1690 of 2008 on 5.8.2008 seeking to set aside the report of the
Advocate Commissioner and remit the same. The trial court, while
considering the said application, allowed the same on 8.8.2008.
21. A perusal of the order dated 8-8-2008 passed by the trial
court would show that the report was remitted with a direction to
measure out both the property of the plaintiff as well as the
defendant on the basis of the title deed, old survey records, re
survey records and also possession. The court, on finding that the
earlier Advocate Commissioner has stopped practise, appointed a
new Advocate Commissioner to visit the property with the help of
an experienced surveyor. In compliance with the order, the
Advocate Commissioner visited the property and tried to identify
the same. However, the Advocate Commissioner was unable to
identify the property and in turn filed an interim report dated
19.12.2008. A perusal of the interim report shows that the
Advocate Commissioner was unable to identify the property and
therefore sought further guidance and orders from the trial court.
Acting upon the said report, the trial court passed an order on
19.12.2008. When the matter was taken up for consideration
RSA No.876 of 2014 16 2025:KER:35524
before the trial court on 19.12.2008, it was submitted on behalf of
the plaintiff that the plaintiff would be satisfied if the identification
is done on the basis of resurvey records. Strangely, it appears that
there was no consensus from the side of the defendant. It is
pertinent to mention that a perusal of the "A" Diary proceedings as
per the records reveal that after the learned Judge has written the
orders, a particular sentence has been incorporated between the
lines which reads as under:
"The opposite side have no "
What is the exact purport and meaning of this sentence is not
clear. The 'A' diary shows that the proceedings are handwritten by
the Learned Trial Judge. But coming to the aforesaid words, a
cursory glance of the same shows that there is difference in the
handwriting and appears to have been subsequently inserted,
creating a great amount of suspicion in the mind of the court.
22. Sri. Sajan Varghese, the learned counsel for the
respondent/plaintiff, would, however, draw a strong exception to
the observations made by this Court and would point out that there
was indeed a concession on the part of the appellant/1 st defendant
to measure out the property based on the re-survey records.
RSA No.876 of 2014 17 2025:KER:35524
However, this Court is not in a position to subscribe to the
argument of the learned counsel for the plaintiff. It is true that in
the proceedings dated 19.12.2008, the trial court had accepted the
plea of the plaintiff. However, it is highly doubtful as to whether
the defendant had conceded to the request of the plaintiff. Even
assuming that there was concession on the part of the defendant,
a reading of the proceeding does not qualify the same as a
concession because the sentence is incomplete. Hence, this Court
is not in a position to test the veracity of the proceedings dated
19.12.2008. It must be remembered that almost 17 years have
lapsed after the proceedings dated 19.12.2008 was rendered. It is
highly doubtful as to whether a roving enquiry at this point of time
as regards the genuineness of the endorsement made in the A diary
proceedings, would suffice the cause. Even otherwise, the present
appeal is pending on the files of this Court from 2014 onwards. But
at any rate, this Court has every reason to conclude that when the
trial court in its order dated 8.8.2008 had directed the Advocate
Commissioner to identify the property based on title deeds, old
survey records, and based on the possession, the proceedings
dated 19.12.2008 cannot in any manner lead to a conclusion that
the advocate commissioner was directed by the trial court to
RSA No.876 of 2014 18 2025:KER:35524
identify the property based on resurvey records alone. It is
pertinent to mention that when the respondent/plaintiff had sought
for fixation of boundary for an extent of 3.05 Acres it was
imperative on the part of the advocate commissioner to have
identified the property of the appellant/1 st defendant based on the
possession also. Having not done, this Court has no hesitation to
hold that Ext.C3 report of the Advocate Commissioner lacks
evidentiary value and Ext.C3(a) plan has absolutely no relevance
at all.
23. It is indisputable that the trial court decreed the suit
solely based on the findings of the Advocate Commissioner in
Ext.C3 report and Ext.C3(a) plan. Since this Court has already
found that the report has no legal validity and therefore, the decree
for fixation of boundaries ordered by the trial court based on
Ext.C3(a) plan also becomes unsustainable.
24. There is yet another reason as to why this Court should
find against the respondent/plaintiff. In the objection to the
Advocate Commissioner's report, the defendant has specifically
stated that the Advocate Commissioner has not identified the
property as A schedule property and B schedule and also the
property of the defendant with reference to the title deeds or the
RSA No.876 of 2014 19 2025:KER:35524
village records. Furthermore, a specific objection was raised by the
defendant that, on the southern side of the property of the
defendant in survey No.284/1, there exists a puramboke land,
which is confirmed by the evidence of DW2. If that be so, the trial
court ought to have applied its mind to the objection of the
defendant that the Advocate Commissioner should have started
identification of the property from that point onwards.
25. This Court cannot remain oblivious of the fact that in the
written statement filed on behalf of the defendant, there is a
specific averment regarding the right of the plaintiff, if any, being
lost by adverse possession. However, it is not necessary to test the
veracity of the above contention especially since the plaintiff had
not sought a relief for recovery of possession and this court has
already found that the suit as such framed is not maintainable.
26. It is the next contention of the Sri. Sajan Varghese, the
learned counsel appearing for the respondent/plaintiff that the
Advocate Commissioner has rightly identified the property of the
appellant/1st defendant. The learned counsel with vehemence
would request this Court to refer Ext.C3(a) plan wherein the
Advocate Commissioner had specifically identified the property of
the defendant in Survey No.284/5 and would contend that the
RSA No.876 of 2014 20 2025:KER:35524
properties that are shaded in green colour are identified as the one
belonging to the plaintiff as A schedule property which lies in
survey No.2030/1, 2030/2, 2035/1 and 2035/2. According to the
learned counsel, the property of the defendant is solely lying in
Resurvey No.284/5 whereas the corresponding resurvey of plaint
A schedule property is 285/3, 286/1 and 286/6. With reference to
the schedule in Ext.B2, Sri.Sajan Varghese, the learned counsel
would contend that the defendant's property has to be measured
with reference to resurvey No.284/5. However, this Court is afraid
that this contention has no legal sustenance. A perusal of schedule
2 of Ext.B2 would show that the old survey number of the property
of the defendant is 2016, 2035/2. Therefore, it is imperative for this
Court to hold that both the plaintiff and defendant had certain
extent of properties in survey No.2035/2 part which when resurvey
took place were assigned with resurvey Nos.286/6 and 284/5.
Merely because the resurvey happened in 1995, the predecessor in
interest of the defendant would not lose the right, title and interest
over the property. The acceptance of the argument of the learned
counsel for the plaintiff would lead to a preposterous situation
where, on re survey if the extent of property is lost, then the parties
cannot assert their civil right. It is in this context that the evidence
RSA No.876 of 2014 21 2025:KER:35524
of DW1 will have to be closely scrutinized by this Court. DW1 is the
Village Officer who was examined on behalf of the defendant who
clearly deposed that the property of the defendant was not tallying
with the survey No.2035/2. However, when Ext.B3, the prior
document of title which is a purchase certificate issued by the Land
Tribunal, Chittur is perused it is seen that, the predecessor in
interest of the defendant had property having an extent of 2 Acres
in survey No.2035/2. It is admitted by DW1 that while resurvey is
done, mistake normally happened and will be corrected
subsequently in various Adalath proceedings. This clearly shows
that the identification of the property of the defendant based on
the old survey records as well as the title deeds based on the
possession was imperative inorder to arrive at a correct position as
regards the entitlement of fixation of the boundary.
27. The factual and legal position being thus, this Court
finds that the first appellate court had mechanically dismissed the
appeal without adverting to the intricacies of law. Therefore, this
Court is left with no alternative but to interfere with the judgments
of the court below.
28. At this stage, the learned counsel for the Plaintiff,
Sri Sajan Varghese pointed out that the decree passed by the trial
RSA No.876 of 2014 22 2025:KER:35524
court has been executed and that the boundary in terms of the
Ext.C3(a) plan has been fixed and a barbed fence has already been
created and therefore nothing remains in this appeal to be
considered. However, this Court is afraid that the same cannot
stand scrutiny of law. It is true that no interim order was granted
by this Court during the pendency of the appeal. However, the
appeal was admitted after hearing the learned counsel for the
respondent/plaintiff also and the above questions of law were
framed. Therefore, it is clear that the respondent/plaintiff was
aware of the consequences of the appeal being allowed and hence
he cannot claim the benefit of execution of a decree, which is
otherwise unsustainable under law. The question to be considered
further is, what should be the relief that the appellant is entitled to
seek. Necessarily, the appellant is entitled to seek restitution of the
position that existed prior to the passing of the decree by the trial
court for which he will have to move the trial court with an
appropriate application. Thus, while answering the second
question of law, this Court holds that the Ext.C3 report and C3(a)
plan are not legally sustainable since it falls short of the mandate
of the order dated 8-8-2008 passed by the Trial Court.
29. The questions of law having been answered as aforesaid,
RSA No.876 of 2014 23 2025:KER:35524
this Court should consider what should be the consequences that
should follow. Normally, the resultant consequences should be
dismissal of the suit. However, the learned counsel, Sri Sajan
Varghese fervently pleaded that if this Court is inclined to allow
the appeal, the matter be remanded so that the plaintiff can do the
needful. In the interest of justice, this Court finds that the instead
of driving the parties to another round of fresh litigation, interest
of justice would be met by ordering a remand. Considering the
compelling facts of this case and also various orders passed by the
trial court during the pendency of the suit, this Court is not inclined
to completely nonsuit the plaintiff because of the infirmities
discussed by this Court in the judgment. Therefore, this Court feels
that an opportunity can be granted to the parties to re-contest the
entire lis by way of remand.
Resultantly, the appellant is entitled to succeed. The
judgment and decree in OS No.557/2004 on the files of the Munsiff
Court, Chittur as confirmed by the judgment and decree in AS
No.136/2010 of the II Additional District Court, Palakkad is set
aside. The suit is remanded back for fresh consideration by the
Munsiff Court, Chittur for a fresh trial. The Advocate
Commissioner so appointed, if available shall inspect the property
RSA No.876 of 2014 24 2025:KER:35524
strictly in terms of the order dated 8.8.2008 in IA No.1690 of 2008
and submit his report. The Munsiff Court shall proceed accordingly
based on the said report and take the suit to a logical conclusion.
The parties are given liberty to adduce fresh evidence if any. In
order to enable the parties to work out the directions contained in
the judgment they are directed to appear before the Munsiff Court,
Chittur on 23.6.2025. Since the suit is of the year 2004, the Munsiff
Court shall endeavour to dispose of the suit in accordance with law
as expeditiously as possible as per the priority. The appellant/1st
defendant is further given liberty to move for restitution under
Section 144 of the Code of Civil Procedure. If any such application
is preferred, the trial court shall consider the same in accordance
with law and thereafter proceed further. No order as to costs.
Sd/-
EASWARAN S.
JUDGE
NS
