Dismissed

C.V. Sunny v. T.N. Baby

Kerala HC7 Oct 2016RSA/1021/2016

Case brief

AI extract

What is this about?

In this second regular appeal regarding a suit for fixation of boundaries and recovery of possession, the Kerala High Court upheld the lower courts' dismissal. The Court held the suit was not maintainable as the plaintiff had sold the properties before filing it and found the plaint description did not match the actual property boundaries.

What did the court decide?

The regular second appeal (R.S.A. No. 1021 of 2016) is dismissed.

C.V. Sunny Vs T.N. Baby — Partition | Kerala HC (2016)

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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 K.HARILAL

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FRIDAY, THE 7TH DAY OF OCTOBER 2016/15TH ASWINA, 1938

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RSA.No. 1021 of 2016

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AGAINST THE JUDGMENT IN AS 210/2012 OF THE IV ADDITIONAL DISTRICT COURT, THRISSUR DATED 27-06-2016.

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AGAINST THE JUDGMENT IN OS 1267/2008 OF THE PRL. SUB COURT, THRISSUR DATED 30-03-2012.

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APPELLANT/APPELLANT/PLAINTIFF:

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C.V. SUNNY,

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AGED:70 YEARS, S/O CHUNGATH VARGHESE, 184/185, SAROJINI STREET, RAMNAGAR, GANDHIPURAM, COIMBATORE

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BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.K.R.ARUN KRISHNAN

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1. T.N. BABY, S/O.T.R.NARAYANAN, THAZHISSERY HOUSE, NEAR THANAPARAMBU TEMPLE, KOTTAPPADI-680 001.

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2. RAJI SUDHAN,

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AGED:49 YEARS, W/O T.N.SUDHAN, THAZHISSERY HOUSE, NEAR THANAPARAMBU TEMPLE, KOTTAPPADI-680 001.

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3. T.N.GIRIJAN, AGED:59 YEARS, S/O. T.R.NARAYANAN, THAZHISSERY HOUSE, NEAR THANAPARAMBU TEMPLE, KOTTAPPADI-680 001.

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.....2

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-2-

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4. AMMU, AGED:85 YEARS, W/O VALIYAVALAPPIL VEETTIL LATE NANU, NEAR THANAPPARAMBU TEMPLE, KOTTAPPADI-680 001.

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5. SULOCHANA, AGED:46 YEARS, D/O AMMU, VALIYAVALAPPIL VEETTIL LATE NANU, NEAR THANAPPARAMBU TEMPLE, KOTTAPPADI-680 001.

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6. SREEMATHY, AGED:46 YEARS, D/O AMMU, VALIYAVALAPPIL VEETTIL LATE NANU, NEAR THANAPPARAMBU TEMPLE, KOTTAPPADI-680 001.

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7. KOMALA, AGED:43 YEARS, W/O HARIDAS, VALIYAVALAPPIL VEETTIL, NEAR THANAPPARAMBU TEMPLE, KOTTAPPADI-680 001.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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-----------------------------------------------------R.S.A. No.1021 of 2016-E

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-----------------------------------------------------Dated this the 7^th day of October, 2016

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JUDGMENT

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The appellant is the plaintiff in O.S.No.1267/2008 on the files of the Sub Court, Thrissur, a suit for fixation of boundary and recovery of possession. The defendants are the land owners having properties on the northern side of plaint 'A' Schedule property. It is the case of the plaintiff that when plaint 'A' Schedule property was measured, it was found that the defendants have appropriated about 28 cents of property of the plaintiff and even though the plaintiff had demanded return of the said property, the defendants were not amenable for the same. According to the plaintiff, the said property was encroached upon by the defendants and the property

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R.S.A. No.1021 of 2016-E -: 2 :-

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is shown as 'B' Schedule property. The plaintiff came to know about the trespass by the defendants on 30/6/2008, when the plaintiff got the property measured. Hence he filed the suit with the aforesaid reliefs.

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The defendants contended that there was no cause of action for plaintiff to file such a suit against them as the suit is not maintainable. The description of the plaint 'A' Schedule property is not correct and the plaint 'A' Schedule property is not an identifiable one. It is also contended that the four boundaries and description of the plaint 'A' Schedule property are incorrect. According to them, if the extent of plaint 'A' Schedule property is calculated on the basis of the 'Kole' measurements, the extent will be 1.43 Acres; but if the extent is calculated on the basis of the Resurvey number, the extent will be 1.72 Acres. The boundaries are well identifiable. The plaintiff has constructed a granite stone foundation at a length of

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R.S.A. No.1021 of 2016-E -: 3 :-

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23 Mtrs. and width of 45 cms. so as to prevent soil erosion from the property of the plaintiff to the property of the defendants. Thus, there were specific boundaries and in the boundaries, there were hedges having old age of more than 25 years.

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On the above pleadings, both parties have adduced oral as well as documentary evidence and after considering the evidence on record, the courts below concurrently arrived at a finding that the boundaries are well identifiable and the possession over the property in accordance with the aforesaid well demarcated boundaries and the property described in plaint 'B' Schedule property could not be identified as it is an imaginary one. The legality and propriety of the aforesaid finding is under challenge in this appeal.

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Heard the learned counsel for the appellant.

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It stands admitted by the plaintiff himself in his evidence that he has sold away the plaint schedule

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R.S.A. No.1021 of 2016-E -: 4 :-

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properties before filing the suit. In view of the above admission, this Court is of the view that actually the plaintiff had no right or possession over the property at the time when he filed the aforesaid suit for fixation of boundary and recovery of possession. In other words, the suit itself was not maintainable and should have been dismissed at the threshold itself, in the absence of cause of action.

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Coming to the merits, the courts below, after analysing Ext.A1 Assignment Deed and the Commission Report, arrived at a finding that the plaint 'A' Schedule property is lying within well demarcated old boundaries and the plaint description does not tally with the actual lie of the plaint 'A' Schedule property. It is pertinent to note that as per the 'Kole' measurements, the total extent of the property is 1.43 Acres. The Advocate Commissioner has measured the properties on the basis of respective possession of the parties and reported that

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R.S.A. No.1021 of 2016-E -: 5 :-

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he was not able to measure the property. As the properties are not identifiable on the basis of the plaint description, the plaintiff is not entitled to get the relief of recovery of possession of plaint 'B' Schedule property. It is trite law that where there is a dispute or conflict between the extent of property as per the boundary and the extent of property described in the plaint schedule, the extent of property as per the boundary will prevail over there. The said finding is supported by the decisions reported in Kumaran Krishnan v. Ulahannan Mathai [1957 KLT 42]; Savithri Ammal v. Padmavathi Amma [1990 (1) KLT 187] and Chandrakumar v. Narayanan Bahuleyan and Another [2011 (3) KLT 185].

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The plaintiff has no case that his predecessor Kamalakshi Amma was in possession of the entire property narrated in different Survey numbers in Exts.A1 and B1. So also, there is no evidence suggesting that Kamalakshi Amma was in possession

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R.S.A. No.1021 of 2016-E -: 6 :-

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of the property having an extent of more than what can be seen from the boundary measurement of the properties involved in Exts.A1 and B1. There are clear boundaries separating the property in possession of the plaintiff from the property in possession of the defendants. What Kamalakshi Amma had assigned as per Exts.A1 and B1 are the property lies within the aforesaid boundaries only. Therefore, the plaintiff as well as the defendants cannot claim right and possession over the extent of property more than what was conveyed as per Exts.A1 and B1 respectively.

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Thus, the court below is justified in arriving at a finding that the relief prayed for cannot be allowed in view of the evidence on record. There is no illegality or impropriety in any of the findings whereby the courts below arrived at the aforesaid finding. Therefore, there is no circumstance or reason warranting interference of the aforesaid finding under

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R.S.A. No.1021 of 2016-E

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-: 7 :-

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Sec.100 of the Code of Civil Procedure. No question of

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law arises for consideration in this appeal.

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This R.S.A. is dismissed.

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Sd/-

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(K. HARILAL, JUDGE)

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Nan/

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//true copy//

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P.S. to Judge

C.V. Sunny v. T.N. Baby

Case brief

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C.V. Sunny v. T.N. Baby

Case brief

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