CHEMBRA PEAK ESTATE LIMITED REPRESENTED BY THE GENERAL MANAGER v. MARIYAPPAN, PARVATHY, BHAVANI, KAMAKSHI, UNNIKRISHNAN
2012-04-11
THOMAS P.JOSEPH
body2012
DigiLaw.ai
JUDGMENT Plaintiff in O.S.No.209 of 1977 of the Court of learned Munsiff, Kalpetta, successful in getting a decree for recovery of possession of plaint B schedule and prohibitory injunction but, unsuccessful in the appeal filed by the respondents/defendants challenge judgment and decree of the first appellate court in A.S.No.1 of 1998. 2. According to the appellant/plaintiff, plaint A schedule belonged to it and plaint B schedule forms part of plaint A schedule which the original defendant allegedly trespassed upon on 30.09.1977. Hence a prayer for recovery of possession on the strength of title. 3. Original defendant contended that he got plaint B schedule as per Ext.X1, purchase certificate dated 12.08.1977. In the purchase certificate the survey number of property was mentioned as 520/2. Later, that was corrected (being a mistake) as survey No.520/4-B7 (which is the survey number of B schedule referred to in the plaint schedule). 4. Trial court found from Ext.X2, file of the Land Tribunal leading to Ext.X1, purchase certificate issued in O.A.No.2746 of 1976 that notice was issued to the appellant before issue of purchase certificate but, Ext.X2, file reveals that on the application for correction of survey number in the purchase certificate, no notice was served on the appellant. Title claimed by the appellant in the plaint B schedule - comprised in survey No.520/4-B7 was upheld and recovery was ordered. 5. First appellate court observed that Ext.X1 refers to 50 cents while the extent of plaint B schedule is 62 cents but in the additional written statement, defendant contended that he is in actual possession and enjoyment of 41cents of dry land and 21 cents of wet land (together forming 62 cents) and that he was under the belief that the extent of property was only 50 cents. He made an application for correction of the survey number on Ext.X1, certificate on 18.11.1977. First appellate court also found that boundaries in Ext.X1, purchase certificate tallied with the boundaries of plaint B schedule. First appellate court referred to Exts.C1 and C2 and found that there was a security fence separating plaint B schedule from plaint A schedule belonging to the appellant on its north and west, there was no case for the appellant that the said fence was put up by the respondent and hence that fence ought to have been put up by the appellant.
First appellate court also noticed the nature of improvements in plaint B schedule and the property admittedly belonging to the appellant but held that the nature of cultivation is different. First appellate court was of the view that appellant was not able to prove the title claimed over plaint B schedule and consequently allowed the appeal and dismissed the suit which is under challenge. 6. Learned counsel has contended that it is without notice to the appellant that correction of survey number was made in Ext.X1 as per application dated 18.11.1977 preferred by the original defendant and hence the correction is not binding on the appellant. It is pointed out by the learned counsel that if correction of survey number in Ext.X1, purchase certificate is not accepted, it is clear that the purchase certificate was with respect to the property comprised in survey 520/2 while plaint B schedule is comprised in survey 520/4-B7. In the circumstance first appellate court was not correct in reversing judgment and decree of the trial court. 7. It is not disputed by the learned counsel as well that while original defendant applied for correction of survey number of Ext.X1, purchase certificate from Sy.520/2 to 520/4-B7, there was no request for correction of the boundaries. In other words, boundaries mentioned in Ext.X1, purchase certificate remains as such. First appellate court has referred to boundaries in Ext.X1 and plaint B schedule to say that the boundaries are the same. Appellant has no explanation how the same boundaries in Ext.X1 happened to be there for plaint B schedule as well. 8. True that first appellate court held that so far as the application for correction of survey number in the purchase certificate (Ext.X1) is concerned, Ext.X2, file does not show that notice of the said application was given to the appellant. But, it is not the service of notice on appellant that confers power on the Land Tribunal to order correction of mistake if any, in the purchase certificate. True that if a purchase certificate is issued without notice to the party concerned, it has no conclusive value. But that cannot extent to an order passed by the Land Tribunal correcting a mistake. If the order on the application for correction was made without notice to the appellant, remedy was to challenge that order. 9.
True that if a purchase certificate is issued without notice to the party concerned, it has no conclusive value. But that cannot extent to an order passed by the Land Tribunal correcting a mistake. If the order on the application for correction was made without notice to the appellant, remedy was to challenge that order. 9. It is the settled position of law that when there is discrepancy between survey number, extent, measurement, boundaries etc. there is no invariable rule as to which should prevail. That is a matter of construction of the document. It is seen that (See Parameswaran Pillai Vs. Gowri Kutty Amma (1984 KLT SN No.111 (Page No.65)) that when a compact plot is described by specific boundaries, description by boundaries could be accepted. In this case I stated, as found by the first appellate court and not disputed before me as well that there was no change of boundaries of property referred to in Ext.X1, purchase certificate and those boundaries are given for plaint B schedule also though, there was difference in the survey number which the original defendant got corrected. 10. A further fact to be noted is that appellant did not point out the area otherwise covered by Ext.X1 to the Advocate Commissioner. On the other hand, Exts.C1 and C2 show as found by the first appellate court that in all probability appellant constructed the security fence separating plaint B schedule on the north and west of the property admittedly belonging to the appellant. Certainly that was in recognition of the right of respondent as per Ext.X1. In the circumstance, the mere fact that in Ext.X1 the survey number given is different and that was corrected without notice to the appellant by itself is not sufficient to interfere with the decision taken by the first appellate court. Viewed in that line, I do not find any substantial questions of law involved. This second appeal is dismissed.