Dismissed

Gopalakrishnan Nair v. Kalyani Santha

Kerala HC2 Dec 2016RSA/1189/2016

Case brief

AI extract

What is this about?

In a Regular Second Appeal challenging an order dismissing a suit for declaration of title and recovery of possession, the Court upheld the concurrent findings of courts below. It held that the plaintiff failed to prove the extent of 1 Acre 8 cents as alleged, as the boundary measurements relied upon were unreliable and based on a maid servant's estimation. The Court dismissed the appeal, finding

What did the court decide?

The Regular Second Appeal is dismissed, upholding the order dismissing the suit for declaration of title and recovery of possession.

Gopalakrishnan Nair Vs Kalyani Santha — 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 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938

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RSA.NO. 1189 OF 2016 (G)

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AGAINST THE JUDGMENT AND DECREE DATED 20-06-2016 IN A.S. NO.9/2005 OF THE SUB COURT, CHERTHALA

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AGAINST THE JUDGMENT AND DECREE DATED 15-10-2004 IN O.S. 108/1994 OF THE ADDITIONAL MUNSIFF COURT,CHERTHALA

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APPELLANTS/ADDITIONAL APPELLANTS 2-4 /LRS OF ORIGINAL PLAINTIFF:

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1. GOPALAKRISHNAN NAIR, S/O SANKARA PILLAI, KUNNEVELI, CHERTHALA SOUTH MURI, CHERTHALA SOUTH VILLAGE.

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2. LAKHA K.NAIR, W/O S.P. BALAKRISHNA PILLAI, KUNNEVELI, CHERTHALA SOUTH MURI, CHERTHALA SOUTH VILLAGE.

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3. JAYAN .G. MENON, S/O GOPALAKRISHNAN NAIR, KUNNEVELI, CHERTHALA SOUTH MURI, CHERTHALA SOUTH VILLAGE.

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BY ADVS.SRI.P.R.VENKETESH

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SRI.G.KEERTHIVAS

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RESPONDENTS/RESPONDENTS 2,4 TO 7:

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1. KALYANI SANTHA KANNARUKATTU, CHERTHALA SOUTH MURI, CHERTHALA SOUTH VILLAGE.

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2. JANAKI AMMA KANAKAMMA, KANAKALAYATHIL, CHERTHALA SOUTH MURI,CHERTHALA SOUTH VILLAGE.

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3. GOPALAKRISHNA PANICKER PADMAKUMAR, KANAKALAYATHIL, CHERTHALA SOUTH MURI,CHERTHALA SOUTH VILLAGE.

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4. RASHEED, S/O N.R.HARIHARAN, KANNARUKATTU, CHERTHALA SOUTH MURI,CHERTHALA SOUTH VILLAGE.

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RSA.NO. 1189 OF 2016 (G)

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5. HARISH, S/O N.R. HAIHARAN,KANNARUKATTU, CHERTHALA SOUTH MURI,CHERTHALA SOUTH VILLAGE.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = = = = = R.S.A. No.1189 of 2016

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December, 2016

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J U D G M E N T

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The appellants are the additional appellants 2

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to 4 in A.S. No.9/2005 on the files of the Sub Court, Cherthala and the deceased 1^st appellant in

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the said Appeal was the original plaintiff in O.S. No.108/1994 on the files of the Additional Munsiff's Court, Cherthala. The above suit was filed for a decree, declaring title and recovery of possession. According to the plaintiff, the plaint schedule properties form part of 1 Acre and 8 cents belongs to the plaintiff obtained by virtue of partition deed No.2769/1067. The defendants 1 to 3 are the holders of the property on the northern side and defendants 4 and 5 are the holders of the property on the eastern side adjacent to the plaint schedule property. The plaintiff's case is that defendants 1

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R.S.A. No.1189 of 2016

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to 3 encroached and took possession of item No.1 and

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put up a fencing, enclosing the encroached portion, on the northern side of the plaint schedule property. Similarly, defendants 4 and 5 encroached and took possession of item No.2 lies on the eastern side of the plaint schedule property. Item No.1 is having an extent of 11 cents and item No.2 is having an extent of 2 cents. According to the plaintiff, item Nos. 1 and 2 form part of the plaint schedule property, having a total extent of 1 Acre and 8 cents. The defendants have neither title; nor possession over item Nos.1 and 2 and they are trespassers only. Therefore, the plaintiff is entitled to get the title declared and item Nos.1 and 2 recovered from the unlawful possession of defendants 1 to 5.

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In the written statement, the defendants contended that the description of the plaint

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R.S.A. No.1189 of 2016

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-: 3 :-

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schedule property is not correct and the plaintiff has not obtained title and possession over 1 Acre and 8 cents, as per the partition deed No.2769/1967. According to them, item No.1 forms part of the property of defendants 1 to 3 and item No.2 forms part of the property of the defendants 4 and 5. They got the said property, by virtue of Exts.B1 to B3, and they have been in possession and enjoyment of the said property, as part of their properties. They denied the allegation that they have encroached the plaint schedule property and took possession of item Nos.1 and 2 and put up a fencing separating item Nos.1 and 2 from the remaining property of the plaintiff. They prayed for dismissal of the suit.

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On the aforesaid rival pleadings, both parties adduced evidence, consisting of the oral testimony of P.Ws.1 and 2, D.Ws. 1 to 5 and Exts.A1 to A3(a), B1 to B5(a) and C1 to C2(a). After

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R.S.A. No.1189 of 2016

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-: 4 :-

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considering the evidence, on record, the trial court dismissed the Original Suit, on a finding that the plaintiff failed to prove that item Nos.1 and 2 form part of 1 Acre and 8 cents of property, as alleged by the plaintiff. In appeal, the appellate court also confirmed the above said finding and dismissed the appeal. The legality and propriety of the concurrent findings of the courts below are assailed in this Regular Second Appeal.

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Heard the learned counsel for the

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appellants.

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The learned counsel for the appellants advanced arguments assailing the concurrent findings of the courts below. At last, the learned counsel for the appellants submits that if the Commission Report Ext.C1 and Ext.C1(a) plan were not reliable, the trial court ought to have remitted the same to the Commissioner for submitting a correct report.

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R.S.A. No.1189 of 2016

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-: 5 :-

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But, the court below went wrong by dismissing the suit itself.

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The sole question to be considered in this

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appeal is, whether the courts below are justified in finding that the plaintiff failed to prove that item Nos.1 and 2 properties form part of the plaint schedule property, having an extent of 1 Acre and 8 cents in Sy. No.189/4 of Cherthala South Village.

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It is the case of the plaintiff that the

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plaint schedule property, having an extent of 1 Acre and 8 cents, belongs to the plaintiff by virtue of Ext.A1 partition deed and she had been in possession

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and enjoyment of the said property. While so, defendants 2 to 3 encroached the northern portion of

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the plaint schedule property and took possession of item No.1, having an extent of 11 cents and put up

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a fencing enclosing the said portion to their property. Similarly, defendants 3 and 4 encroached

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R.S.A. No.1189 of 2016

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-: 6 :-

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the eastern portion of the plaint schedule property and took possession of item No.2, having an extent of 2 cents and put up a fencing enclosing the said portion to their property. According to the plaintiff, item Nos.1 and 2 form part of the plaint schedule property, which is described in the plaint schedule and lying within the side measurement shown in the plaint schedule. Admittedly, neither Ext.A1 partition deed; nor Ext.A2 prior deed shows the side measurement of 1 Acre and 8 cents, which was set apart in favour of the plaintiff in Ext.A1 partition deed. During the course of examination, the plaintiff herself admitted that the side measurements shown in the plaint schedule are taken by her maid servant by name 'Janaki' by using a coir yarn and she is an illiterate lady. Thus, it stands admitted that the description and extent of the property shown in the plaint schedule are based on

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R.S.A. No.1189 of 2016

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-: 7 :-

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the side measurements taken by the maid servant of

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the plaintiff. It follows that no reliance can be placed on the aforesaid side measurements taken by

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the maid servant, who does not know anything about the plaint schedule property.

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The Commissioner has measured the property and filed Ex.C1(a) report and Ext.C1(b) plan. The Commissioner has identified and located item Nos.1

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and 2 properties inside the 1 Acre and 8 cents. When the Commissioner and the Surveyor were examined as DW2 and DW5, they admitted that they have measured and located plaint item Nos.1 and 2, on the basis of the side measurements shown in the plaint schedule. In other words, they have located item Nos.1 and 2 properties on the basis of the measurements taken by the maid servant, 'Janaki', of the plaintiff. It follows that they have not measured the plaint schedule property on the basis of the descriptions

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R.S.A. No.1189 of 2016

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-: 8 :-

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in Ext.A1 partition deed by which the plaintiff has

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got title and possession over the property.

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Further, they admitted that in Ext.A1

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partition deed, from the total extent of property in Survey No.189/4, an extent of 1 Acre and 8 cents was set apart to the plaintiff and the remaining 50 cents was set apart to her brother 'Surendranatha Menon' and the property set apart to 'Surendranatha Menon' lies on the south-eastern side of the property allotted to the plaintiff. It is decipherable from the above said admission that the partition was effected under Ext.A1, without ascertaining the actual extent of property available in each survey number. Though, the side measurements of the 50 cents allotted to the plaintiff's brother 'Surendranatha Menon', are not shown in Ext.A1. The Commissioner and Surveyor admitted that if 1 Acre 8 cents was measured, in accordance with available

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R.S.A. No.1189 of 2016

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-: 9 :-

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measurements of 50 cents in Ext.A1 partition deed allotted to 'Surendranatha Menon', it would have changed the location of the property than the one shown in Ext.C1(a). It has also come out in evidence that the location of the property in Ext.C1(a) does not tally with Ext.A1 partition deed, and it is fully in consonance with the schedule description in the plaint only. I have already held that the schedule description is totally unreliable and cannot be taken as a basis for determining the boundaries of plaint schedule property. Thus, it stands proved that Ext.C1(a) report and Ext.C1(b) plan furnished by the Commissioner, which is fully based on the measurements in the plaint schedule, cannot be relied on at any rate to find that item Nos.1 and 2 properties would form a part of plaint schedule property under partition deed No.2669/1976 (Ext.A1). I do not find any kind of illegality or

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R.S.A. No.1189 of 2016

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-: 10 :-

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impropriety in the aforesaid findings of the courts

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below or perversity in the appreciation of evidence from which those findings have arrived at.

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The learned counsel for the appellant contended that when Exts.C1(a) and C1(b) were found unreliable, the trial court ought to have remitted the report to prepare a correct plan. I am unable to accept the said submission, on the reason that no purpose will be served by remitting the plan and report for fresh report and plan. Because, the

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property sought to be recovered in the plaint is based on the side measurements, which was found totally unreliable. The plaintiff has no prayer to measure the plaint schedule property, on the basis of Ext.A1 title deed. In the absence of such a prayer, the trial court is justified in dismissing

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the suit itself. I do not find any kind of illegality or impropriety in the impugned judgments

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R.S.A. No.1189 of 2016

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-: 11 :-

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under challenge. No question of law arises for

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consideration.

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This Regular Second Appeal is dismissed

accordingly.

Sd/- K. HARILAL,

JUDGE

NaN/DST

//True copy//

P.A. To Judge

Gopalakrishnan Nair v. Kalyani Santha

Case brief

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Gopalakrishnan Nair v. Kalyani Santha

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