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2022 DIGILAW 909 (KER)

Jaimon, S/o. Antony v. Sebastian, S/o. Mathew

2022-10-25

SATHISH NINAN

body2022
JUDGMENT : RSA 1128 of 2006 arises from OS 95/2002 filed by the appellants herein as plaintiffs. The suit is one for declaration of title and possession, and for a declaration that Sale Deed No.906/2001(Ext.B3) does not affect the plaint schedule property. The plaint schedule property is, 13 cents 160 square links with building thereon. 2. RSA 1129/2006 arises from OS 82/2002, a cross suit. The suit is one for prohibitory injunction against trespass. The plaint schedule property therein is the eastern most 3 and 3/4 cents from out of the plaint schedule property in OS 95/2002. 3. The suits were jointly tried. OS 95/2002 was taken as the leading case. The appeals which arose therefrom, were heard jointly. It is being followed suit at this second appellate stage and the appeals are heard together. Since the plaint schedule in O.S.82/2002 is a portion of the plaint schedule in O.S.95/2002, the property in O.S 95/2002 is hereinafter referred to as, “the plaint schedule property” and the parties are referred to according to their status in O.S. 95/2002. 4. The plaintiffs claim title over the plaint schedule property as per Ext.A1 Settlement Deed of the year 1994. It was executed by their grandmother viz. Mariam @ Mariamma. On the northern side of the plaint schedule property is a way. Mariam had obtained the property as per Ext.B6 Partition Deed of the year 1110 ME, as included in ‘G’ schedule therein. The properties on the east, south and west of the plaint schedule property belonged to Varghese. He obtained it under the very same partition deed, Ext.B6. He was allotted the properties as included in the 'D' schedule therein. According to the plaintiffs, Varghese and his children had sold away his properties situated adjoining the plaint schedule on all the three sides. Thereafter, his children, as per Ext.B3 document of the year 2001, purported to convey an extent of 3 3/4 cents forming the eastern portion of the plaint schedule property, stating it to be portion of the properties allotted to Varghese under Ext.B6 partition. There remained no such property for Varghese or his successors to convey under Ext.B3. On the strength of Ext.B3, the vendees therein are attempting to trespass into the plaint schedule property. There remained no such property for Varghese or his successors to convey under Ext.B3. On the strength of Ext.B3, the vendees therein are attempting to trespass into the plaint schedule property. It is on these allegations that the suit is filed for a declaration of the plaintiffs' title, and that Ext.B3 does not affect the plaint schedule property. 5. The defendants contend that, under Ext.B6 partition, the plaintiff's predecessor had got only 10 cents of property and that the claim for 13.160 cents is unsustainable. The remaining 3.160 cents is part of the property of Varghese, which devolved on his children. By Ext.B3 sale, it became vested with the defendants. Thus they claim title and possession over the plaint schedule property. 6. The courts concurrently found that, under Ext.B6 partition, the predecessor of the plaintiff obtained only 10 cents and that the claim is in excess of that. Thereupon, the suit was dismissed. 7. Heard learned counsel Sri. M.P. Ramnath on behalf of the appellants-plaintiffs and learned Senior Counsel Sri. T. Krishnanunni on behalf of the respondents-defendants on the following substantial question of law:- “Were the courts right in having fixed the identity of the property solely based on the extent, by ignoring other verifiable materials ?” 8. The plaint schedule property is described as, “property having an extent of 13.160 cents which is described as 11 cents as per thandaper”. As noticed, Ext.B6 Partition Deed is the basic document of title of both the plaintiffs and the defendant. The plaintiffs' property is included in the 'G' schedule to Ext.B6 and the defendants property is included in the 'D' schedule therein. In Ext.B6 the plaint schedule property is described as having an extent of 10 cents. Based on Ext.B6, a Settlement Deed was executed by Mariyam in favour of the plaintiffs. In Ext.A1 settlement deed, the property is described as, “property having an extent of 13.160 cents on measurement and which is shown as 11 cents as per re-survey and thandaper”. The contention of the defendant is that, the plaintiffs are not entitled to claim extent in excess of what is allotted under Ext.B6 partition. The plaintiffs have to succeed on the strength of their title. Mere absence of title if any of the defendant will not vest title with the plaintiffs, submits the learned Senior Counsel. 9. The contention of the defendant is that, the plaintiffs are not entitled to claim extent in excess of what is allotted under Ext.B6 partition. The plaintiffs have to succeed on the strength of their title. Mere absence of title if any of the defendant will not vest title with the plaintiffs, submits the learned Senior Counsel. 9. The property allotted to the defendants' predecessor Varghese in Ext.B6 Partition lies on the eastern, western and southern sides of the plaint schedule property. During the life time of Varghese, he executed Ext.A1 sale deed in favour of the Nambiyaparambil family with regard to the property situated on the immediate eastern side of the plaint schedule property. In Ext.A2 sale deed, the western boundary is described as the property of Mariam, the plaintiffs' predecessor. The eastern boundary of the said property is described as the remaining property of the executant Varghese. The mentioning of the western boundary in Ex.A2 as the property of Mariam would clearly indicate that, after Ext.A2 conveyance no further property remained with Varghese on the western side of the said property and also that the property on the west belonged to Mariam. The properties on the southern and the western sides of the plaint schedule property were conveyed by the children of Varghese to strangers as per Exts.A3, A6 and A12 documents. The boundary description in the said conveyances also indicate that no property belonging to the executants were retained on the northern or eastern sides. The eastern boundary of Ext.A12 document, relating to the property on the western side of the plaint schedule property is mentioned as, the property of the Mariam. Therefore it is evident that, the predecessor of the defendant had conveyed their property situated on the eastern, southern and western sides of the plaint schedule property, without retaining any property adjoining the plaint schedule property. However, as per Ext.B3 the children of Varghese purported to convey an extent of 3 and ¾ cents situated to the west of the property that was conveyed to the Nambiaparambil family by Varghese under Ext.A2 sale deed. As found supra, after Ext.A2 conveyance, no property remained there for Varghese. In Ext.A2, it was acknowledged that the western property is that of Mariam. As found supra, after Ext.A2 conveyance, no property remained there for Varghese. In Ext.A2, it was acknowledged that the western property is that of Mariam. The boundary description of the conveyances of the properties on the eastern, southern and western sides of the plaint schedule property namely, Exts.A2, A3, A6 and A12 documents, leaves no room of doubt regarding the identity of the plaintiffs' property and the defendants' property. Evidently the conveyance under Ext.B3 sale deed was in respect of a non-existent property or rather in respect of property belonging to Mariam and her successors-the plaintiffs. The description of the plaint schedule property as 10 cents in Ext.B6 partition, could only be considered as an error in the description of extent. Description of a property by extent, by itself, cannot be taken as conclusive in the matter of identity of a property. 10. As noted supra, there could be no ambiguity in so far as the identity of the property is concerned. It is pertinent to note that, one of the vendors in Ext.B3 namely, the eldest son of Varghese, was examined as PW6. In cross-examination he has deposed that he is not aware if any extent of property remained with them on the western side of the property covered under Ext.A2 property. All these would conclusively prove that the plaintiff has title over the plaint schedule property and that the predecessor of the defendants did not have any property as described under Ext.B3 to be conveyed to the defendants. No doubt, the suit being one on title, the plaintiffs have to establish their title over the plaint schedule. Once evidence has been adduced by both sides, the court will appreciate the entire evidence on record and find out if the plaintiff has discharged his burden. On the evidence and circumstance as noticed supra, it could only be found that the plaintiff has title over the plaint schedule property. Ext.B3 conveyance cannot affect the plaint schedule property and the plaintiffs title thereto. The substantial question of law is answered accordingly. 11. Referring to the relief claimed in the plaint, the learned Senior Counsel for the defendants would contend that, what the plaintiffs have sought for is, declaration of title by adverse possession and not a derivative, proprietary title. Ext.B3 conveyance cannot affect the plaint schedule property and the plaintiffs title thereto. The substantial question of law is answered accordingly. 11. Referring to the relief claimed in the plaint, the learned Senior Counsel for the defendants would contend that, what the plaintiffs have sought for is, declaration of title by adverse possession and not a derivative, proprietary title. While it is true that in the relief portion, the plaintiffs have stated that they have prescribed title over the 13.160 cents, it is also stated that they have absolute title, ownership and possession over the plaint schedule property. Further a reading of the plaint in its entirety reveals that the plaintiffs claim title on the strength of their basic document of title Ext.B6 and Ext.A1 conveyance executed by their mother. There is no plea of adverse possession. As noticed supra, Ext.A1 Settlement Deed executed by the mother in their favour describes the extent of property as 13.165 cents and the plaintiffs claim title on its basis. Therefore, the contention of the learned Senior Counsel for the respondent has no merit. 12. Coming to the question of possession over the plaint schedule property, the mere fact that pursuant to Ext.B3 sale deed, the defendants paid tax for a portion of the plaint schedule property viz 3.165 cents do not establish possession by them. As noticed, PW6 the eldest son of Varghese, who is one of the vendors in Ext.B3, was not even aware whether any extent of property remained with them adjoining the plaint schedule property after Exts.A2, A6, A3 and A12 conveyances. The plaintiffs examined PW4 and PW5 to prove their possession over the plaint schedule property. PW4 is a nearby resident. PW5 is a worker who was engaged in manual labour at the property. There was an earlier suit as O.S.76 of 2002 filed by the plaintiffs against the predecessor in interest of the present defendants. Ext.A13 is the commissioner’s report in that case. It indicates that works of removal of soil from the property were going on. Though both the plaintiffs and defendants make rival claim as to who was doing the said works, the plaintiffs have produced Ext.A10 plan relating to construction of a building in the property. All these prove the possession of the plaint schedule property with the plaintiffs. It indicates that works of removal of soil from the property were going on. Though both the plaintiffs and defendants make rival claim as to who was doing the said works, the plaintiffs have produced Ext.A10 plan relating to construction of a building in the property. All these prove the possession of the plaint schedule property with the plaintiffs. The courts have failed to consider the significance of the boundary descriptions of the conveyances executed by the defendant's predecessor Varghese and his children as per Exts.A2, A3, A6 and A12 documents. The oral evidence of PW4, PW5 and PW6 have not been taken note of by the courts. The courts have proceeded as if the claim is based on adverse possession. The averments in the plaint has not been considered in its entirety. Material evidence, oral and documentary have been ignored/overlooked by the courts. As found above the plaintiffs have established their title and possession over the plaint schedule property. Resultantly, the Regular Second Appeals are allowed. It is declared that the plaintiffs have title and possession over the plaint schedule property, and that Ext.B3 sale deed bearing No.906/2001 does not affect the plaint schedule property and the title of the plaintiffs thereon. The defendants are restrained by a decree of prohibitory injunction from trespassing into the plaint schedule property and from interfering with the boundaries of the same. Parties to bear their respective costs.