Dismissed

The Chembra Peak Estate Limited v. Mariyappan (Died)

Kerala HC11 Apr 2012RSA/429/2012

Case brief

AI extract

What is this about?

In a regular second appeal challenging a decree for recovery of possession, the High Court of Kerala held that the Land Tribunal's order correcting a survey number mistake without notice to the appellant was valid as sufficient remedy existed to challenge the order. The Court found no substantial question of law, noting boundaries aligned and improvements recognized the respondent's right.

What the court decided

AI extract

The Chembra Peak Estate Limited Vs Mariyappan (Died) — Partition | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 11TH DAY OF APRIL 2012/22ND CHAITHRA 1934

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RSA.No. 429 of 2012 () ---------------------AS.1/1998 of SUB COURT, SULTHAN BATHERY OS.209/1977 of MUNSIFF COURT, KALPETTA

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APPELLANT/RESPONDENT/PLAINTIFF:

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THE CHEMBRA PEAK ESTATE LIMITED REPRESENTED BY THE GENERAL MANAGER, 32 CRESENT ROAD, HIGH GROUNDS BANGALORE AND NOW ELSTONE AND INDUSTRIES LTD, KALPETTA AMSOM AND DESOM VYTHIRI TALUK, WAYANAD DISTRICT

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BY ADVS.SMT.T.D.RAJALAKSHMI

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SRI.R.VENUGOPAL

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RESPONDENTS/APPELLANTS/DEFENDANT & LEGAL REPRESENTATIVES OF

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DEFENDANT:

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MARIYAPPAN

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S/O.KARUPPASWAMI (DIED)

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PARVATHY

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W/O.LATE MARIYAPPAN AGED 58 YEARS

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BHAVANI

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D/O.LATE MARIYAPPAN AGED 41 YEARS

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KAMAKSHI

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D/O.LATE MARIYAP[PAN

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UNNIKRISHNAN

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S/O.LATE MARIYAPPAN AGED 20 YEARS ALL ARE RESIDING AT PULPARA KALPETTA AMSOM DESOM VYTHIRI TALUK PIN 673 121

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A.No.429 of 2012

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Dated this 11^th day of April, 2012

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JUDGMENT

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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.

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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.

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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).

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R.S.A.No.429 of 2012

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-: 2 :-

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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.

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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

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R.S.A.No.429 of 2012

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-: 3 :-

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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.

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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.

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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

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R.S.A.No.429 of 2012

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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.

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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.

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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

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R.S.A.No.429 of 2012

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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.

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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.

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This second appeal is dismissed.

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(THOMAS P. JOSEPH, JUDGE)

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Sbna/-

The Chembra Peak Estate Limited v. Mariyappan (Died)

Case brief

What is this about?

What the court decided

The Chembra Peak Estate Limited v. Mariyappan (Died)

Case brief

What is this about?

What the court decided

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