K.A. Premalatha vs Anandaraj

K. Abraham Mathew, J.—The appellant is the plaintiff and the respondent is the defendant in O.S. No. 138/1995 which is for partition. The appellant has 42/43 shares and the respondent has 1/43 share in the property. There is a dispute between the parties with regard to the extent of the property. The measurements in the title deeds are given in ''kole''. A preliminary decree was passed. In A.S.669/2001 this court issued the following directions: "the court below shall apply its mind to the documents and if necessary by issuing a commissioner to find out the extent of the property available, then permit both parties to adduce evidence with reference to the respective contentions and thereafter dispose of the matter in accordance with law". Accordingly, the trial court deputed a commissioner to measure the property. The commissioner found that the extent of the property available for partition is 0.42 cents. In this appeal the appellant''s contention is that the extent of the property is 3 cents and the measurement done by the commissioner with the assistance of the surveyor is not acceptable.

Heard Sri. Tom K. Thomas, learned counsel for the appellant and Sri. Sajan Varghese K., learned counsel for the respondent.

The first document in chronological order relating to the property in dispute is Ext. B1, which was executed in 1907. In it the side measurements are given as ''4 1/4 x 8 asari kole''. It is specifically stated that the standard is not ''six foot kole''. The next document is Ext. B2 lease deed executed by one Govindan Nair on 22.05.1981. In this document the side measurements are shown as ''4 1/2 x 8 asari kole''. The extent is shown as 3 cents. Three days later Govindan Nair executed Ext. B3 sale deed in favour of one Hamsa. Here also the measurements shown are those given in Ext. B2. The purchaser, Hamsa and the lessee, Basheer jointly executed Ext. B4 in favour of Muhammed Ali and his wife Hawwa Umma on 25.01.1988. On 29.12.1989 they sold the property to the appellant by Ext. B5. In Exts. B1, B4 and B5 the side measurements are shown as ''4 1/2 x 8 asari kole'' and the extent as 3 cents. This is the basis on which the appellant now claims that the extent of the property is 3 cents.

The appellant purchased the property in a court auction in O.S. No. 139/1982 of Sub Court, Palakkad. The side measurements are shown as ''4 1/4 x 8 asari kole'' and the extent as 1 cent.

The learned counsel for the appellant submits that the side measurements should be taken as ''six foot kole''. This is not acceptable for the reason that in Ext. B1 it is specifically mentioned that it is ''asari kole'' and not ''six foot kole''. When there is a positive statement with a negative statement there is no room for any interpretation. So the measurement can be done only on the basis that the side measurements given in ''asari kole''. There is no dispute that one ''asari kole'' is 2 1/4 feet. Calculations show that ''4 1/4 x 8 asari kole'' is 0.42 cents.

74 years after the execution of Ext. B1, in Ext. B2 lease deed executed by Govindan Nair in 1981, the side measurements are given as ''4 1/2 x 8 asari kole'', and the extent as 3 cents. There is no explanation how the side measurements happened to be shown as ''4 1/2 x 8 asari kole'' instead of ''4 1/4 x 8 asari kole'' shown in Ext. B1. Calculations show that ''4 1/2 x 8 asari kole'' is less than 1/2 cent. In the subsequent documents including Ext. B5 document in favour of the appellant, the side measurements are given as ''4 1/2 x 8 asari kole'' and the extent as 3 cents. There is no doubt that there was no foundation for giving the side measurements as ''4 1/2 x 8 asari kole'' and the extent as 3 cents. Mere execution of a document will not confer title on any person. Govindan Nair could not have given a better title than he had under Ext. B1. So I reject the argument of the learned counsel for the appellant that the actual extent of the property is 3 cents. When there is a dispute with regard to the extent of the property, the court has to go by the side measurements. Going by the side measurements in Ext. B1, the extent of the property is only 0.42 cents. This is the extent shown by the commissioner in his commission report.

Now the only question is whether there is any mistake committed by the commissioner. In the appeal memorandum it is stated that "the specific direction of this Hon''ble Court in the remand order was to the effect that court below should find out the extent of the property available by issuing the commissioner, if required. It was never the intention of this Hon''ble Court to identify the plaint schedule property by deputing an advocate commissioner". I have to disagree. The direction of this court was to appoint a commissioner to ascertain the extent of the property available for partition. This is actually what the trial court has done.

The other grounds in the appeal memorandum relate to the measurements of the property. As mentioned earlier, the appellant cannot be heard to say that instead of ''asari kole'' ''six foot kole'' should have been the basis for making measurements. The commissioner was examined as CW1. I find nothing in his examination to hold that he has committed some errors in identifying the property or making measurements of it.

It is true that the extent of the property shown in Ext. B6 purchase certificate issued to Govindan Nair is 3 cents. The purchase certificate was issued in 1978. It may be taken for granted that the extent shown in it is correct but that will not entitle the appellant to get a share in 3 cents. The extent of the property purchased by her in O.S. No. 139/1982 Sub Court, Palakkad is not 3 cents. The extent is shown as 1 cent in it, but the side measurements are given as 4 1/4 x 8, which means that the extent was only 0.42 cents. The appellant is not entitled to plead that she has a right to get a share in 3 cents though she purchased a share only in 0.42 cents.

In any view of the matter, the appellant''s contention cannot be accepted. She is entitled to get a share only in 0.42 cents. The commissioner''s report is only to be accepted.

The second decree passed by the trial court, the correctness of which is assailed in this appeal, should be taken as a supplementary preliminary decree. The interested party may file a final decree application. It is made clear that the property need not be measured again. Final decree can be passed on the basis of the second plan dated 27.01.2011 produced along with the commission report dated 29.01.2011.

In the result, this appeal is dismissed.