Partly allowed

Kesava Panicker Madhusoodanan v. Kesava Panicker Viswambharan

Kerala HC15 Jul 2019RSA/91/2010

Case brief

AI extract

What is this about?

In a suit for declaration of title regarding disputed land, the Kerala High Court held that inferior courts were unjustified in dismissing the case due to plan inconsistencies without addressing the substantial question of document construction. The judgment allows the appeal in part and remands the matter for a fresh survey and disposal.

What did the court decide?

The appeal is allowed in part. The judgment and decrees of lower courts are set aside. The matter is remanded to the trial court for fresh disposal after appointing a survey commission to locate prope

Kesava Panicker Madhusoodanan Vs Kesava Panicker Viswambharan — Partition | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

MONDAY, THE 15TH DAY OF JULY 2019 / 24TH ASHADHA, 1941

¶5

RSA.No.91 of 2010

¶6

AGAINST THE JUDGMENT AND DECREE IN AS 121/2003 of SUB COURT, NEYYATTINKARA DATED 30-07-2009

¶7

AGAINST THE JUDGMENT AND DECREE IN OS 353/1997 of PRINCIPAL MUNSIFF'S COURT, NEYYATTINKARA DATED 07-11-2002

¶8

APPELLANT/APPELLANT/PLAINTIFF:

¶9

KESAVA PANICKER MADHUSOODANAN VELAMKUZHI KIZHAKKUMKARA PUTHEN VEEDU, KOVILNEDUMGODE DESOM, ANAVOOR VILLAGE, NEYYATTINKARA TALUK, REP.BY HIS POWER OF ATTORNEY HOLDER KESAVA PANICKER RAMABHADRAN, ROADARIKATHU KADAYARA PUTHEN VEEDU, PALIYODE JUNCTION FROM VELAMKUZHI KIZHAKKUMKARA PUTHEN VEEDU, KOVILNEDUMGODE DESOM, ANAVOOR VILLAGE.

¶10

BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH

¶11

RESPONDENTS/APPELLANTS/DEFENDANTS:

¶12

1 KESAVAN PANICKER VISWAMBHARAN VELAMKUZHI KIZHAKKUMKARA PUTHEN VEEDU, KOVILNEDUMGODE DESOM, ANAVOOR VILLAGE, KOTTAKKAL.P.O, NEYYATTINKARA.

¶13

2 DAKSHAYANI MAYALETHA CALLED AS MANGALAM OF VELAMKUZHI KIZHAKKUMKARA PUTHEN VEEDU, KOVILNEDUMGODE DESOM, ANAVOOR VILLAGE, KOTTAKKAL.P.O, NEYYATTINKARA.

¶14

3 KESAVA PANICKER SUGATHAN VELAMKUZHI KIZHAKKUMKARA PUTHEN VEEDU, KOVILNEDUMGODE DESOM, ANAVOOR VILLAGE, KOTTAKKAL.P.O, NEYYATTINKARA.

¶15

RSA.No.91 of 2010 2

¶16

4 SUKUMARA PANICKER SUMITHRAN, AGED 42 KADAYARA PUTHEN VEEDU, VADAKKEVILA, KOTTAKKAL DESOM, ANAVOOR VILLAGE, KOTTAKKAL.P.O, NEYYATTINKARA.

¶17

5 OMANA MINIKUMARY, AGED 40 SAI BHAVAN, KADAYARA PUTHEN VEEDU, VADAKKEVILA, KOTTAKKAL DESOM, ANAVOOR VILLAGE, KOTTAKKAL.P.O,, NEYYATTINKARA.

¶18

6 OMANA RENUKA DEVI, AGED 38 KADAYARA PUTHEN VEEDU, VADAKKEVILA, KOTTAKKAL DESOM, ANAVOOR VILLAGE, KOTTAKKAL.P.O, NEYYATTINKARA.

¶19

7 SUKUMARA PANICKER NANDAN, AGED 45 KADAYARA PUTHEN VEEDU, VADAKKEVILA, KOTTAKKAL DESOM, ANAVOOR VILLAGE, KOTTAKKAL.P.O,, NEYYATTINKARA.

¶20

BY ADVS. R4 BY SRI.G.S.REGHUNATH R5 BY SRI.R.GOPAN

¶21

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶22

RSA.No.91 of 2010

¶23

¶24

JUDGMENT

¶25

A suit for declaration of title and possession ended in dismissal in both the courts below. Aggrieved by the said decree and judgment the plaintiff came up with this second appeal.

¶26

The dispute is pertaining to B schedule property over which the plaintiff claims declaration of his right title and interest. According to the plaintiff, the C schedule is a part of B schedule. The A schedule property is the property of the defendant having an extent of 6 cents. B schedule is having an extent of 25 cents and C schedule is the encroached portion out of the B schedule.

¶27

An extent of 2 acres 30 cents originally belonged to Moolayikkara family comprised in Survey No.287/1. It was partitioned in the year 1103 M.E. and there was a subsequent partition with respect to the 1 acre 25 ½ cents of property comprised in Survey No.287/1, wherein it was allotted to the share of Lakshmi Pilla Neelamma Pilla. She had assigned that property in the year 1111 M.E. to one Njanamuthan Thomas. Out of the said property Njanamuthan Thomas assigned 75 ½ cents to one Kesava Panicker in

¶28

the year 1121 M.E. Kesava Panicker is the father of the plaintiff and defendants herein. Thereafter, the balance 50 cents of property was given to Njanaprakasam Michael & another. The property, at that time,

¶29

RSA.No.91 of 2010

¶30

¶31

was outstanding in a mortgage in favour of one Achupillai. Achupillai, in turn, given the mortgage right in favour of one Chinnan Chuppan through his legal heirs by which the mortgage right over 50 cents of property was released in favour of one Njanaprakasam and another who had obtained title over the property by virtue of sale deed Ext.A3. While so, Kesava Panicker, the father of the plaintiff and the defendants filed a suit in O.S. No.21/1120 M.E. for redeeming the mortgage right over 75 ½ cents and a decree Ext.A10 was passed on 28.02.1915 and obtained delivery of property from the mortgagee by preparing Ext.A9 survey plan. Kesava Panicker had given 15 cents of property out of the large extent of 75 ½ cents to the plaintiff under Ext.A3 dated 14.12.1976. Thereafter, he had executed Ext.A1 settlement deed on 01.06.1977 and the entire balance of 50 cents were given to his legal heirs. Thereafter, the legal heirs executed Ext.A5 with respect to 10 cents of property lying just east to the property covered by Ext.A3, i.e., 15 cents out of the 75 ½ cents. This 15 cents and 10 cents together scheduled in the plaint as B schedule as a single compact plot.

¶32

Earlier, on 01.04.1959, the first defendant purchased 2 cents of property under Ext.A1 document out of the 50 cents property purchased by Njanaprakasam and another. Subsequently, on 18.01.1971 an adjoining 4 cents of property was also purchased under

¶33

RSA.No.91 of 2010

¶34

¶35

Ext.A2 and the same is mentioned in the document as lying on the north and west of the two cents of property purchased under Ext.A1. The defendant also claims possession of 10 cents of property besides their registered plot. In the property, which was purchased by the first defendant, he had constructed permanent structures, buildings, shop rooms, etc. about 25 years back and claimed a right of perfection of title by adverse possession and limitation, insofar as, the property wherein the structures are situated.

¶36

A survey commission was deputed in the trial court, who in turn visited the property and got prepared 3 plans which were Exts.C4(a), (b) and (c) and Ext.C3 report. Both the courts below not accepted these 3 plans so as to grant a decree in favour of the plaintiff. It was submitted by the learned counsel for the respondent that both the trial court and the first appellate court accepted Ext.C4(b) and (c) plans and found that the plaintiff failed to prove the identity of plaint B and C schedule property and as such, no decree was granted. The following questions came up for consideration:

¶37

i) Whether the trial court and the first appellate court justified in dismissing the suit when the plan prepared by the survey commissioner found to be wrong and not in accordance with document of title and survey report? Is it permissible for the first appellate court to dismiss the suit on that reason without providing an opportunity to

¶38

RSA.No.91 of 2010

¶39

¶40

locate the property in accordance with the document of title and survey records?

¶41

Before going into the question of location of property and the correctness of 3 plans by the Survey Commissioner, it is necessary to understand what actually purchased by the parties to the suit under various documents of title. It is, by virtue of Exts.A3 and A5 that the plaintiff claims title over the 15 + 10 = 25 cents scheduled in the plaint as B schedule. In Ext.A3, the description of property is stated as part of 1 acre 25 ½ cents. It is, further stated that the property given under Ext.A3 will form part of western 50 cents out of 1 acre 25 ½ cents. As per Ext.A3, the extent 15 cents purchased would form the western part of the large extent of 75 ½ cents, being part of Pazhavila Pattu Purayidam, out of large extent of 11 acre 16 cents out of Sy. No.287/1A. The property, which was given under Ext.A5 stated to be lying just east to the property given under Ext.A3 having an extent of 10 cents. In that document, the boundaries were shown as north by road, west by Sy. No.290/1, east by property of plaintiff covered under Ext.A3 and south by the property belongs to Chingan & others. In Ext.A3, an entirely different boundary description is given insofar as 15 cents covered by that document and the eastern property is stated as the property wherein mid-wife centre is functioning and the northern property is stated as the property of Sukumara Panicker.

¶42

RSA.No.91 of 2010

¶43

¶44

In Ext.A1, pertaining the property of the defendant, the property is stated as part of 50 cents of property being the western portion of 1 acre 25 ½ cents. It is the two cents lying adjoining to the eastern road lying in north-south out of 5 cents of property lying in a square shape being the eastern part of 50 cents which would form the western part of large extent of 1 acre 25 ½ cents. This would clearly show that 2 cents of property claimed by the defendant as per their document of title, Ext.A1 title deed is lying adjoining to the eastern road lying in north to south direction. But no such a road was drawn or located by the Survey Commission while locating this 2 cents of property in these 3 plans. It is, by virtue of Ext.A2 on 18.01.1971 the remaining 4 cents of property was purchased by the first defendant where in also the eastern boundary of 15 cents belong to the executant is stated as road lying in north-south direction and what is given under that document, the 4 cents lying on west and north of the 2 cents of property earlier purchased under Ext.A1 document. No such property is seen located by the Commissioner on the northern and western side of 2 cents of property covered by Ext.A1 document. In short, the property claimed by the defendants under Exts.A1 and A2 were not located in accordance with the description given in the title deed - Exts.A1 and A2. The very same mistake has been committed by the Surveyor and the Commissioner while locating the property of

¶45

RSA.No.91 of 2010

¶46

¶47

the plaintiff under Exts.A3 and A5 documents. It is true that in Ext.C4(b) plan and its expansion Ext.C 4(c) plan the properties of both the plaintiff and the defendants were located by drawing different plots situated in different locations. In Ext.C4(b) plan the B schedule is seen located based on the possession by drawing a plot. Again it was located based on the survey plan and the document by drawing another plot, which are not tallying each other. The survey plan pertaining to the property in dispute neither produced nor let in evidence. It is not clear where is the location of the road made a mention in the document of title of the defendants as well as the plaintiffs. It goes without saying that both are claiming different portions out of a large extent of 1 acre 25 ½ cents. That was really located by the Commissioner in Ext.C4(b) plan by starting measurement from the point B1 where a survey stone is seen located by the Surveyor. The earlier plan prepared in execution of earlier suit (Ext.A10) cannot be relied on simply because of the reason that it was prepared at the time of execution and not at the trial stage can be rendered based on the plan prepared at the execution stage. The first defendant is not a party, who is the owner of property covered by Exts.A1 and A2 properties in that proceedings. So, no much reliance can be placed on Ext.A10 plan but the property has to be located based on the survey plan and the document of title. Needless to say

¶48

RSA.No.91 of 2010

¶49

¶50

that after locating the large extent the property, the portions of properties given under various documents should be located in its chronological order out of the large extent. That is not seen done by the Commissioner while preparing these three plans. The first severance is by way of 17 ½ cents of property out of a large extent of 11 acre 16 cents in Survey No.287/1/A. The subsequent purchase of the 10 cents of property shall be located based on the said location of property covered by Ext.A3. The property of the defendant has to be located by severing 15 cents of properties out of the large extent of 1 acre 25 ½ cents being part of large extent of 11 acres 16 cents. While locating these three properties, the Surveyor and the Commissioner has to take into consideration the description given in the document of title with respect to the existence of the road, if any, available so as to ascertain whether it is a mistake crept in the description. It is seemed to be so strange that though Ext.C 4(b) plan was accepted by both the courts below, no decree was granted in favour of the plaintiff eventhough a property was located as that of them, based on possession and another property was located based on document, may be because of the inconsistency in the description given in the document of title of both the parties. That has to be resolved by locating the large extent of property 11 acres 16 cents and also by locating 1 acre 25 ½ cents which according to both the parties would

¶51

RSA.No.91 of 2010

¶52

¶53

constitute the property of B schedule as well as A schedule and to find out whether there is any question of encroachment as alleged in the

¶54

plaint in respect of C schedule to the plaint.

¶55

Neither the trial court nor the first appellate court addressed the question of adverse possession on the reason that the plaintiff has failed to prove the identity of property. It is true that unless the property belonged to the plaintiff identified in accordance with the survey plan and document of title no adjudication can be rendered on the question of adverse possession. Hence, a remand of the matter to the trial court cannot be avoided.

¶56

The learned counsel for the respondent relied on two decisions in Tata Tea Ltd. v. Valarmathi [2017(1) KLT 1032] rendered by this Court and the Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran And Others [(2017) 3 Supreme Court Cases 702] rendered by the Apex Court. The decision rendered by this court is on the question whether a concurrent finding regarding non-identity of property rendered by both the courts below being a finding on fact is capable of interference by way of a second appeal. What is dealt under is that the finding regarding non-identity of property cannot be interfered as it is a finding on fact. But construction of a document of title and the description of property involved is a substantial question for the

¶57

RSA.No.91 of 2010

¶58

¶59

purpose of second appeal. There are ever so many inconsistencies in the description of property claimed by both the parties as per their document of title and that has been reflected in the plan prepared by the Survey Commissioner. The other decision rendered by the Apex court is pertaining to the question of non-inclusion of a prayer for recovery of possession in a suit for declaration of title, and limit of jurisdiction under Section 100 CPC. As discussed in earlier paragraphs, the material defect crept in the preparation of plan by the commissioner has to be rectified by locating the property as mentioned above. Hence the decree and judgment of both the trial court and the first appellate court are liable to be set aside. The matter is remanded back to the trial court for fresh disposal, in accordance with the law, based on the observation made above, by appointing a Survey Commission. The trial court shall appoint a serving Surveyor for that purpose. The survey commission may be directed to locate the properties by giving different shades. When there is overlapping, it should be shaded differently by giving a peculiar colour. The survey commission shall locate the property based on the survey plan as well as the respective document of title locating the large extent of property at first and portions covered by subsequent documents in its chronological order. The trial court shall dispose of the matter afresh within a reasonable time, positively, within a period of six months from

¶60

RSA.No.91 of 2010

¶61

¶62

the date of appearance of the parties before the trial court. The

¶63

parties shall appear before the trial court on 05.08.2019.

¶64

The appeal is allowed in part, accordingly. No order as to costs.

¶65

Sd/-

¶66