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2012 DIGILAW 998 (KER)

Ouseph Poulose v. Kuttappan Chothi

2012-11-12

K.VINOD CHANDRAN

body2012
JUDGMENT : 1. The legal representatives of the plaintiff in a suit for recovery of possession with mesne profits is before this Court in appeal. The original plaintiff filed the suit claiming recovery of possession of 98 cents of property, on the basis of Ext. A 1 settlement deed executed by one Rev. Fr. Thomas, the brother of the original plaintiff, in the year 14.10.1965. The plaintiff contended that earlier, himself, the executor of Ext.A1 and another brother had filed 0.S No.433/1973 against the father of the defendants claiming injunction against trespass into the 98 cents of property called 'Karimalathandu Purayidom'. In the said case, the father of the defendants had set up a claim of 'kudikidappu'. He also claimed that he has filed an original application under the Kerala Land Reforms Act, 1963 (hereinafter referred to as the KLR Act). However, there is nothing on record as to what happened in the said proceedings under the KLR Act. The defendants too are silent on that aspect 2. In any event, the defendants who are the sons of the defendant in the earlier suit, do not have a case with respect to any purchase certificate having been granted in favour of their father or them. It is also evident from the records of the case, more specifically the commission report, that the father of the defendant, Chothi was alive, since the commissioner has specifically noticed that the plaint schedule properties were pointed out to the commissioner by the said Chothi. One of the items which was the subject matter of the earlier suit O.S.No.433/1973 was the 98 cents of property called 'karimalathandu purayidom', which is shown as Item No.2 in Ext.A4; the decree in the said suit. The defendants father had challenged the same unsuccessfully in First Appeal and second appeal. Having failed in the suit and having suffered the injunction order against trespass, the defendants, the children of Chothi were set up to effect trespass into the property, is the contention of the plaintiff. That was projected as the cause of action for the instant suit. The suit and the proceedings thereon were the subject matter of revision many a time. In fact, the entire dispute revolves around the mistaken survey numbers shown in Ext.A1 and originally in the plaint. That was projected as the cause of action for the instant suit. The suit and the proceedings thereon were the subject matter of revision many a time. In fact, the entire dispute revolves around the mistaken survey numbers shown in Ext.A1 and originally in the plaint. Ext.A1 dealt with 'karimalathandu purayidom' as item number 3 and the extent was shown as 1 acre with boundaries, also clearly indicated. However, survey number shown was 117/1A/421/139. It is seen from Ext.A4 decree that the survey number shown therein was 117/1. The extent tallied since it was shown as 98 cents; conceding 2 cents as 'kudikidappu' of Chothi. The village shown in Ext.A1 and A4 decree were both Kuttamangalam village. Since the plaint was filed claiming title on the strength of Ext.A1,the survey number shown therein was repeated in the plaint. In the proceedings before the lower court, the suit was once dismissed for want of proper evidence regarding identity of the suit property. 3. In appeal, this Court remanded the matter back to the court below for facilitating an application for issuance of commission for the conduct of a measurement with the assistance of the survey authority. The commissioner, who visited the property along with the Taluk Surveyor, identified the property and filed a report with a sketch prepared by the Taluk Surveyor based on the field measurement book. The Taluk Surveyor found that though the survey number was 117, the subdivision 1A/421/139 shown in Ext. A 1 was an obvious mistake, especially since the properties in the said subdivision were lying 200 to 250 metre away from the properties claimed by the plaintiff. It was also noticed that the plaintiff or his predecessors-in-interest had no property in the said subdivision. The property called 'karimalathandu purayidom' was, as per the revenue records, said to exist in subdivision 1B of survey No.117 of Kuttamangalam village. The 98 cents of property was identified as pointed out by the plaintiff and Chothi, the father of the defendants. When the said commission report was filed before Court, the plaintiffs sought for an amendment wherein new survey number; rather the correct subdivision was sought to be incorporated. That application was dismissed and the plaintiffs were again before this Court. The amendments were allowed on terms, but, however, leaving open the question of limitation. When the said commission report was filed before Court, the plaintiffs sought for an amendment wherein new survey number; rather the correct subdivision was sought to be incorporated. That application was dismissed and the plaintiffs were again before this Court. The amendments were allowed on terms, but, however, leaving open the question of limitation. The court below has specifically noticed that the question of limitation was not argued by the defendants. There is no appeal from that finding also. 4. The court below, however, found that the elukas (boundaries) in CIA sketch and that in plaint schedule, Ext.A1 and A4 are different. On an examination of the evidence adduced before the court below the court found that the property located in Ext.C1A is not the plaint schedule and that comprised in Exts.A1 and A4. The plaint schedule description being found to be incorrect, the title and possession claimed by the plaintiff was held to be not established. The recovery of possession claimed was hence rejected. The identification of the property is the crux of the matter. The discrepancy has been caused by the different subdivision numbers used in Ext.A1 and Ext.A4 decree and by the Taluk Surveyor. The subdivision in any context cannot be said to be anything other than 117/1B, as has been found by the Taluk Surveyor. The Commissioner along with Taluk Surveyor had visited the property with notice to both parties. The additional plaintiff being the son of the original plaintiff and their counsel; as also Chothi, father of the defendants were available at the time of the inspection. The plaint schedule property was identified by the additional plaintiff and Chothi, the defendant's father, as has been stated in paragraph 2 of the report. Chothi's homestead, claimed as kudikidappu was in existence within the 1 acre so identified. 5. The application for commission filed by the original plaintiff sought for a report on the following. 1.Whether the item No.3 in settlement deed No.2874 dated 14.10.1965 Kothamangalam Sub Reg. and Item No.2 of the Decree in O.S No. 433/7 Munsiff Court Muvattupuzha and the plaint schedule property in O.S 717/87 are not the same. 2.The present boundaries of the properties and their description. 3. The extent of the plaint schedule property. 4. The location of the residence of the defendant's father defendant in O.S No.466/73. 5. The residence of the defendants. 6. 2.The present boundaries of the properties and their description. 3. The extent of the plaint schedule property. 4. The location of the residence of the defendant's father defendant in O.S No.466/73. 5. The residence of the defendants. 6. A sketch showing the above particular 7. Other matters that may be brought to the notice of the Commissioner. The Taluk Surveyor measured the property in the survey number 117/1B as pointed out by the plaintiff and the father of the defendants on the basis of the possession. The sub division boundaries were marked in black and the boundaries in accordance with the possession were marked in red. The property was said to comprise of one acre within which was situated the two cents in which the father of the defendants had his homestead. That homestead of Chothi was marked as 1. Reporting on the first point sought for in the commission application, the Taluk Surveyor found that the subdivision in the survey number shown in the documents are incorrect. It was his finding based on the records that the plaintiffs or their predecessors-in-interest never had any property in Sub- division No.1A. 6. Pausing here for a moment, it is pertinent that originally, when the plaint was filed the defendants appeared and raised a specific plea in their written statement that the plaintiff had no title to the properties in Sy. No. 117/1A/421/139. It was their specific claim that the properties now possessed by them where in Sy.No.117/1A/421/139. It is seen from the Commission report that the property of the defendants as also the residence of the defendants were found to be in existence, within the boundaries of the property identified by the Taluk Surveyor, in sub-division No.1B of survey No.117. It is with reference to the decree, Ext.A4 and Ext.A1 settlement deed as also the plaint schedule that, the Commissioner, reported that the properties which were settled in favour of the original plaintiff by Ext.A1 deed and included in item 2 of Ext.A4 decree; re- possession of which is claimed in the present suit is one and the same. That property was found to be in existence in Sy.No.117/1B. The plaint schedule, as noticed earlier, was corrected in terms of the commission report and sketch. That property was found to be in existence in Sy.No.117/1B. The plaint schedule, as noticed earlier, was corrected in terms of the commission report and sketch. It was only on such amendment being made that an additional written statement was filed by the defendants contending that the plaintiff had no properties in subdivision 1 B of survey No.117. The trespass complained of obviously, was in the property comprised in sub-division 1B of Survey No.117. The mistake in the sub-division number, was an obvious one, going by the facts revealed in the above case. All parties were of the belief that their properties were in the mistaken sub-division. The conclusiveness of a survey conducted under Section 13 of the Kerala Survey and Boundaries Act, 1961 has been held to be not one arising from any jurisdiction with respect to which the survey officer is endowed with for adjudication of the title to the property in Kannan v. Kannan, 1964 KLT 228 . The demarcation of Survey was held to be only one circumstance affecting the decision on title and it was found that title to property has to be determined on other and perhaps more cogent materials. 7. One other compelling circumstance to be noticed is that the decree, Ext.A4 excluded 2 cents of kudikidappu claimed by Chothi, the father of the defendant and showed an extent of 98 cents. The present plaint also showed only 98 cents, again, excluding Chothi's kudikidappu. The sketch of the Taluk Surveyor and the report of the Commissioner specifically shows the existence of Chothi's 2 cents kudikidappu within the properties identified; as the plaint schedule property. According to this Court, nothing more is required to affirm the identity of the properties covered by Ext. A1, A4 and the plaint. Ext.A1 is the original deed based on which O.S. No.433 of 1973 was filed and Ext.A4 decree was obtained. The present plaint also, traces the title to Ext. A1. 8. This Court has time and again considered the procedure by which properties which are covered by documents come up for identification and difficulties are caused due to the change in extent, boundaries, survey numbers and so on and so forth. The present plaint also, traces the title to Ext. A1. 8. This Court has time and again considered the procedure by which properties which are covered by documents come up for identification and difficulties are caused due to the change in extent, boundaries, survey numbers and so on and so forth. Reference can be safely made to Krishnan v. Mathai, 1957 KLT 42 wherein the dispute on identity of the property relying on a mistake in survey number shown in the decree was negatived and Krishnamurthy Iyer v. Janaki Amma, 1957 KLT 886 where it was held that the usual rule of predominance given to boundaries in the effect of conflict between boundaries and area was "not an inflexible rule". The finding that boundaries are always not determinative, was approved in Savithri Ammal v. Padmavathi Amma, 1990(1) KLT 187 and the declaration of Bhat J. (as he then was) quoted. "When one of the descriptions is vague and uncertain and another description is definite and certain, the latter may be preferred. If none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertently must be preferred if it sufficiently identifies the subject matter of the transaction and the other descriptions must be rejected as erroneous or inaccurate. This is not a rule of law and therefore is not inflexible in character; it is a mere rule of construction which appears to be safe and almost an infallible guide." Going by the precedents, the extent and the possession is clear by the report of the Commissioner. The identity of the property has been pointed out by both the plaintiff and the representative of the defendants. The lower court has placed much reliance on the boundaries shown in various documents. It has to be noticed that the boundaries noticed are of the year 1965, 1976 and in 1987, the time of filing of the present suit. Those definitely would have changed in the course of time. What assumes significance in relating Exts.A1 and A4 decree and the plaint is the presence of Chothi's Kudikidappu in the property identified in Ext.C1A. The properties in sub-division No.1A/421/139 as has been noticed by the Taluk Surveyor and as reported by the Commissioner is far away from the properties identified by the Commissioner in Sy.No.11711B. What assumes significance in relating Exts.A1 and A4 decree and the plaint is the presence of Chothi's Kudikidappu in the property identified in Ext.C1A. The properties in sub-division No.1A/421/139 as has been noticed by the Taluk Surveyor and as reported by the Commissioner is far away from the properties identified by the Commissioner in Sy.No.11711B. Neither the plaintiffs nor the defendants have any property in the said sub-division. The defendants also do not have a case that their father had a homestead anywhere else. In fact it was their case also that they had absolute right over the properties in subdivision 1A1421/139 of Sy.117; which was later found to actually exist in Sy. 117/1B. 9. The title of the plaintiff is proved and established by Ext. A1. The sub-division number referred therein is found to be an obvious mistake. The identification of the property has been made on a physical verification, on the basis of possession and on a reference to the survey records. The extent claimed and revealed from Ext.A1 as also Ext.A4 decree in the earlier suit tallies. Above all the 2 cents claimed by Chothi; the father of the defendants, which was item No.2 in Ext.A4, is found to be in existence, in the property identified by Commissioner as the plaint schedule. On a re-appreciation of the evidence on record, this Court is of the opinion that the judgment of the trial court is not liable to be sustained. This Court hence, on the strength of the reasoning above, allows this appeal reversing the judgment of the trial court and decreeing the suit; granting recovery of possession of the plaint schedule properties to the plaintiff. With respect to the prayer for mesne profits there is absolutely no evidence led. Hence the same is rejected. The suit is decreed granting recovery of possession of the plaint schedule property to the plaintiffs with costs, throughout.