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2021 DIGILAW 1090 (KER)

Sabu S/o. Yohannan v. Sasi S/o. Kuttappan

2021-11-26

K.BABU

body2021
JUDGMENT : These two Regular Second Appeals arise from the common judgment dated 29.3.2014 in A.S.Nos.102 & 103 of 2011 passed by the Subordinate Judge’s Court, Perumbavoor. The Appeal Suits arose from the common judgment and decree dated 29.7.2011 in O.S.No.32 of 2009 and O.S.No.9 of 2008 passed by the Munsiff’s Court, Kolenchery. The appellant instituted O.S.No.9 of 2008 for damages and mandatory injunction against respondent No.1. The respondents instituted O.S.No.32 of 2009 for declaration of title regarding the plaint schedule properties and for recovery of a portion of the immovable property said to have been encroached upon by the appellant. The respondents also prayed for a permanent prohibitory injunction. 2. Material facts relevant for the adjudication of these appeals are briefly narrated below:- 2.1. The appellant is the absolute owner in possession of 10 cents of land comprised in Survey No.379/9 of Thiruvaniyoor Village. He constructed a house in the plaint schedule property. He resides in the said house. The respondents own properties on the western side of the appellant’s property. On the western side of the appellant’s property, a pathway runs. The respondents are living in inimical terms with the appellant. On 26.1.2008, the respondents, along with their men, destroyed the compound wall constructed by the appellant on the western, southern, and northern boundaries of the plaint schedule property. The respondents destroyed the foundation of the boundary wall. They are liable to construct the compound wall destroyed by them, for which a mandatory injunction is to be granted. The appellant is entitled to compensation of Rs.10,625/- from the respondents. 2.2 The respondents contended that they are the owners in possession of 30 ares of property in Survey No.379/3 of Thiruvaniyoor Village. These properties are described as ‘A’ and ‘B’ in the schedule appended to the plaint in O.S.No.32 of 2009. The appellant encroached upon a portion of the respondents’ properties and annexed the same. The extent of the property over which the appellant encroached upon would come to 617 sq.links. The respondents are entitled to a declaration that they are the titleholders of the properties scheduled in the plaint and for recovery of possession of the portion encroached upon by the appellant, which is described as ‘C’ schedule. The respondents are also entitled to the fixation of boundaries of the properties. 3. Both the suits were jointly tried. O.S.No.32 of 2009 was taken as the lead case. The respondents are also entitled to the fixation of boundaries of the properties. 3. Both the suits were jointly tried. O.S.No.32 of 2009 was taken as the lead case. During the trial, PWs 1 to 3 were examined, and Exts.A1 to A5 were marked on the side of the respondents. DWs 1 to 4 were examined, and Exts.B1 to B5 were marked on the side of the appellant. Exts.C1 to C4 series were marked as Court exhibits. 4. The Trial Court dismissed O.S.No.9 of 2008 and decreed O.S.No.32 of 2009, holding that the respondents have title over ‘C’ schedule property and are entitled to recovery of possession of ‘C’ schedule property from the appellant. The Trial Court held that the properties had been identified and located in Ext.C3(a) plan. The Trial Court also declared that the boundary lines set in Ext.C3(a) are the boundary lines separating the properties of the appellant and the respondents. The Court declared that the respondents are the owners of the plaint ‘C’ schedule property. The Trial Court directed the appellant to surrender the possession of ‘C’ schedule property to the respondents. The eastern boundary of the plaint schedule properties was fixed as the black line between the red coloured shaded portion, and violet coloured shaded portion in Ext.C3(a) plan. The appellant was restrained by an order of permanent prohibitory injunction from trespassing into the plaint ‘A’ & ‘B’ schedule properties, committing any mischief therein and preventing the respondents, their agents, and men from using the plaint ‘D’ schedule pathway. 5. The appellant challenged the decree and judgment before the First Appellate Court in A.S.Nos.102 & 103 of 2011. The First Appellate Court confirmed the judgment and decree passed by the Trial Court. 6. After hearing both sides, this Court reformulated the substantial questions of law as follows:- “(i) Is not Ext.C3(a) plan incomplete since it does not contain G-Line, Check-Line and Ladder that are necessary to identify, and re-fix the properties in dispute ? (ii) Whether the courts below committed error in accepting Ext.C3(a) plan for granting decree in respect of the immovable properties scheduled in the plaint without obtaining a plan which is sufficient to identify the properties.” 7. The appellant’s case is that he is the absolute owner in possession of the property comprised in Survey No.379/9 of Thiruvaniyoor Village, the extent of which is 10 cents. The appellant’s case is that he is the absolute owner in possession of the property comprised in Survey No.379/9 of Thiruvaniyoor Village, the extent of which is 10 cents. The appellant pleaded that the respondents destroyed the western boundary wall of the plaint schedule property in O.S.No.9/2008. 8. The respondents’ challenge is that they are the titleholders of the properties comprised in Survey No.379/3 of Thiruvaniyoor Village. The respondents pleaded that the appellant encroached upon a portion of their property (‘C’ schedule) and are entitled to recover the possession of the same. 9. The learned counsel for the appellant contended that Ext.C3(a) plan relied on by the Trial Court as well as the First Appellate Court is incomplete. Therefore, there had not been effectual adjudication of the lis in the courts below. The learned counsel for the appellant contended that Ext.C3(a) is insufficient to re-fix the property as it lacks the requirements such as ‘G-line’, ‘Check-line’ and ‘Ladder’. The learned counsel for the appellant contended that the properties are not identifiable with the aid of Ext.C3(a) plan to draw a proper decree. It is submitted that the property sought to be recovered from the appellant’s possession is also not identifiable. 10. The learned counsel for the respondents, per contra, contended that Ext.C3(a) plan is sufficient to identify the properties. 11. In a suit for possession of immovable property, identification of the disputed property is highly relevant to enable the Court to draw a proper decree as required by Order 20 Rule 3 of the Code of Civil Procedure. On the relevance of the identification of the property in dispute in P. Chandrasekharan and Others v. S. Kanakarajan and Others (2007 KHC 3567 : AIR 2007 SC 2306 ) the Apex Court held thus:- “10……… The plaintiff, before his suit is decreed, must establish the cause of action in respect of the property in question wherefor the relief for recovery of possession has been claimed. In case the suit is decreed, the Executing Court must be able to deliver possession thereof and thus there cannot be any doubt whatsoever that the property in suit must be adequately identifiable.” 12. In the present case, the question that falls for consideration is whether Ext.C3(a) plan relied on by the Trial Court and the First Appellate Court is sufficient to identify the properties. Ext.C3(a) is admittedly a field measurement sketch. 13. In the present case, the question that falls for consideration is whether Ext.C3(a) plan relied on by the Trial Court and the First Appellate Court is sufficient to identify the properties. Ext.C3(a) is admittedly a field measurement sketch. 13. This Court appointed Sri. A.A. Rajan, Assistant Director of Survey in charge of Deputy Director of Survey, Ernakulam, to assist the Court as Amicus Curiae. The Assistant Director of Survey perused Ext.C3(a) plan and submitted that ‘Ladder’ is necessary to plot the field and verify the shape and area of the field. Re-fixation of the property in the field is impossible in the absence of ‘Ladder’, ‘G-line’, ‘Check-line’, and ‘Offset’. Sri. A.A. Rajan submitted a report describing the steps to be followed in preparing the plan. He relied on the Kerala Survey Manual in support of his submissions. The Amicus Curiae submitted that the surveyor concerned has adopted ‘chain survey’ in preparing Ext.C3(a) plan. 14. The relevant portion of the report submitted by the Amicus Curiae is extracted below:- “Surveying is the process of making such measurements as will determine the relative positions of points on the surface of the earth in order that the shape and extent of any position of earth's surface may be ascertained and delineated on a map or plan. A plan is therefore the representation to some scale, of the ground and the objects upon it. xx xx xxxx The following are the various components of a survey plan:- a. G-Line: G-line outlines the making of the entire sketch. It is an imaginary line that converts the sketch into various sizes of triangles to fix the boundary lines and the various points in the sketch. Errors in G-line will affect all the pertinent calculations. b. F-Line: F-line signifies the actual field boundaries in the outer lines of the sketch. Its points are fixed with reference to its offset distance from the G-line. c. Check-Lines: Check Lines are lines that divide a survey field into triangles, so that off-sets can be laid to the field line points, and thereby area can be calculated. d. Sub-Divisional Lines: Subdivision lines demarcate a small portion of land within a survey number. A sub-divisional extent of a polygon is directly correlated to the extent found for the particular subdivision. The subdivision lines are generally defined through a ladder, or the likes of it. d. Sub-Divisional Lines: Subdivision lines demarcate a small portion of land within a survey number. A sub-divisional extent of a polygon is directly correlated to the extent found for the particular subdivision. The subdivision lines are generally defined through a ladder, or the likes of it. e. Ladder: The field line points are defined with reference to an offset distance from the G-line or check line. The offset distance may deviate to the left or right side of the G-line. This left or right angle deviation is highlighted by the ladder. f. Extension Lines: Each survey number field forms a crucial part of the village map, and as a result of it, other fields surround each sketch. The precise direction wherein the subject field joins the neighbouring field is depicted on the survey map as an extension line. g. Neighbouring Field Survey Nos: The other fields surround each of the survey sketches. These surrounding field numbers are marked around each FMB. h. Off-set: It is the perpendicular distance which is the least distance to a point measured from a G line or Checkline. In a Survey, the position of the details such as boundaries, buildings, roads etc. is located with respect to the Surveyline by means of lateral measurement taken at right angles to the survey line. Every offset has two measurements 1) the distance along the chainline called Chainage and 2) the length of the offset. i. Field Measurement Sketch/FM Sketch: Field Measurement of a field is a plan plotted to scale in the field measurement sheet with triangulation measurements and offsets. As a rule, the top of the page will represent north, but when it does not, the north point line should be shown. Measurements of F lines, G lines and Checklines are recorded in the sketch. The G line measurements, Check lines measurement and offsets are neatly entered in the ‘ladder’ in the FM sheet. Offset are numbered in series in red ink from the bottom of the ladder. The direction of adjoining field boundaries, and adjoining survey numbers are entered in the sides of the field. The ladder is necessary to plot the field and verify the shape and area of the field. It is not possible to plot and calculate area or refix the field with boundary measurements only. The direction of adjoining field boundaries, and adjoining survey numbers are entered in the sides of the field. The ladder is necessary to plot the field and verify the shape and area of the field. It is not possible to plot and calculate area or refix the field with boundary measurements only. j. Measurement of Fields: An Eyesketch of the field to be surveyed is prepared before taking the measurements. All side and subdivision boundaries measured are noted in the Eyesketch. Junctions are named A, B, C, D etc. G lines connecting trijunctions are then measured. Offsets are taken for field boundary bends from G lines. Offsets for subdivision points are taken from checkline. Offsets are recorded in the field book (Ladder) on the left or right of the line. Each point of the field can be refixed using this ladder.” 15. The principle of ‘Chain surveying’ is to divide the field into a framework of triangles. The sides of a triangle are measured directly in the field. Each field is divided into triangles by chaining lines called Diagonal or Check-lines from tri-junction to tri-junction and the Offsets taken from G-line or Check-line to the bend points. 16. The Amicus Curiae submitted that Ext.C3(a) plan is styled as a field measurement sketch (FM Sketch). An FM Sketch shall contain ‘F-line’, ‘G-line’, ‘Check-line’ and ‘Offset’ measurements. The ‘G-line’ measurements, ‘Check-line’ measurements and ‘Offset’ are entered in the ‘Ladder’ in the FM sheet. In addition, the direction of adjoining field boundaries and adjoining survey numbers are entered on the sides of the field. ‘Ladder’ is necessary to plot the field and verify the area of the field. It is impossible to plot and calculate the area or re-fix the field with the aid of boundary measurements (F-lines) only. To re-fix the field ‘G-lines’, ‘Check-lines’, ‘F-lines’ and ‘Offsets’ are required. A survey plan becomes complete and self explanatory only when it contains the requirements mentioned above. 17. Ext.C3(a) plan contains only ‘F-lines’, which cannot be used to find the area of any of the properties described therein and to identify the boundaries of the properties. Ext.C3(a) plan relied on by the Courts below has not been prepared following the requirements mentioned above. It is impossible to ascertain how ‘C’ schedule property was identified as 617 sq.links by the surveyor from Ext.C3(a) Survey Plan. Ext.C3(a) plan relied on by the Courts below has not been prepared following the requirements mentioned above. It is impossible to ascertain how ‘C’ schedule property was identified as 617 sq.links by the surveyor from Ext.C3(a) Survey Plan. ‘G-line’, ‘F-line’, and ‘Sub-Divisional Lines’ are necessary for plotting and re-fixing the boundary of a property and ‘Check-line’ and ‘Ladder’ are necessary for computing the area of the property surveyed. Ext.C3(a) plan, which is made part of the decree is not useful to find the area of the property depicted therein and to fix the boundaries of the property. 18. It is pertinent to note that the appellant had questioned the veracity of Ext.C3(a) plan in the Trial Court itself. A specific objection was raised, stating that the plan was incomplete. In the objection to the Commission Report and plan, the appellant contended that the area of the property could not be tabulated from the plan and boundaries cannot be fixed due to the lack of diagonal lines. The Trial Court and the First Appellate Court lost sight of those vital aspects while decreeing the suit. Ext.C3(a) is insufficient to identify the properties in dispute. The Trial Court and the First Appellate Court ignored the fact that Ext.C3(a) plan was incomplete, even when the appellant raised such a contention in the Trial Court itself. 19. The Trial Court identified ‘C’ schedule property based on Ext.C3(a) plan which is incomplete and declared the respondents’ title over it. The Trial Court granted recovery of possession in respect of ‘C’ schedule property based on Ext.C3(a) plan. Considering the nature of the disputes, identification of the plaint schedule properties was the most vital aspect for which both the courts relied on Ext.C3(a) plan, which is proved to be incomplete. The default or carelessness of the parties does not absolve the Trial Court of its obligation to satisfy that the property ordered to be recovered is identifiable. The resultant conclusion is that there had not been effectual adjudication of the disputes in the courts below in so far as the identification of plaint ‘A’, ‘B’ and ‘C’ schedule properties is concerned. 20. The respondents (plaintiffs in O.S.No.32 of 2009) had prayed for a permanent prohibitory injunction restraining the appellant (defendant in O.S.No.32/2009) from preventing the user of plaint ‘D’ schedule pathway and causing any hindrance to the respondents to use ‘D’ schedule pathway. 20. The respondents (plaintiffs in O.S.No.32 of 2009) had prayed for a permanent prohibitory injunction restraining the appellant (defendant in O.S.No.32/2009) from preventing the user of plaint ‘D’ schedule pathway and causing any hindrance to the respondents to use ‘D’ schedule pathway. The Trial Court held that the respondents are entitled to a prohibitory injunction regarding ‘D’ schedule pathway. Plaint ‘D’ schedule pathway is not dealt with in Ext.C3(a) plan. The finding of this Court that properties are not identifiable based on Ext.C3(a) plan is confined to ‘A’, ‘B’ and ‘C’ schedule properties in O.S.No.32 of 2009 and the plaint ‘A’ schedule property in O.S.No.9/2008. There is no challenge on the identity of ‘D’ schedule pathway. The First Appellate Court confirmed the finding of the Trial Court that the respondents are entitled to permanent prohibitory injunction in respect of ‘D’ schedule pathway against the appellant. This Court finds no reason to interfere with that finding. In the result, these Regular Second Appeals are partly allowed. The decree and judgment, in so far as they relate to plant ‘A’, ‘B’ and ‘C’ schedule properties in O.S.No.32 of 2009 and ‘A’ schedule property in O.S.No.9 of 2008 are set aside. The finding of the Trial Court, and the First Appellate Court that the plaintiffs in O.S.No.32 of 2009 are entitled to permanent prohibitory injunction in respect of ‘D’ schedule pathway is confirmed. The Original Suits are remanded to the Trial Court for adjudication afresh in respect of the dispute relating to the subject matter of the suits excluding ‘D’ schedule pathway in O.S.No.32 of 2009. The parties shall appear before the Munsiff’s Court, Kolencherry on 18.03.2022. The Trial Court shall dispose of the suits as expeditiously as possible, at any rate, within six months from the date scheduled for the appearance of the parties. The parties are at liberty to lead further evidence if any. They are directed to bear their respective costs.