V.S. Thankamani vs Sreedevi

Sathish Ninan, J.

The suit for fixation of boundary and injunction was dismissed by the trial court. The decree was reversed in Appeal. The defendants are in Second Appeal.

The plaint schedule property has an extent of 19 cents. Plaintiffs claim title over the same as per Ext A1 sale deed of the year 1985. The sale deed was executed by one Bhaskara Kurup. On the southern side of the plaint schedule property is the property of the defendants. Ext B1 is the document of title relating to the said property, which stands in the name of the 1st defendant. Ext B2 is its prior deed. It is executed by Sreedhara Kurup, the brother of Bhaskara Kurup. The basic document of both Ext A1 and Ext B2 documents is, Ext A2 Partition Deed. Ext B3 is the gift deed executed by the 1st defendant to defendants 2 to 4. Alleging attempt to trespass, the suit has been filed.

The defendants contended that the plaintiffs are attempting to grab a portion of their property. They denied the allegation of attempted trespass.

Before the trial court, an Advocate Commissioner was deputed with the assistance of a Surveyor to measure out and identify the plaint schedule property. Ext C1 is the Commissioner's report and Ext C1(a) is the plan attached therewith. The trial court found that the description of the plaint schedule property by extent is not correct and that the Commissioner has in Ext C1 and Ext C1(a) proceeded to identify the property based on extent. It was held that a decree cannot be passed on the basis of Ext C1(a) plan. Accordingly, the suit was dismissed. On Appeal by the plaintiffs, the first appellate court accepted the identification done in Ext C1 report and Ext C1(a) plan, and granted a decree. It is aggrieved thereby that the defendants have filed this Regular Second Appeal.

Heard the learned counsel Smt.M.A Zohra on behalf of the appellants – defendants and Sri.B.Sajeev Kumar, learned counsel for the respondents – plaintiffs on the following substantial question of law.

“Generally, are not the physical features of the properties and the description by the nature/category of the properties to prevail over description by extent, for identification of the property?”

Ext A2 is the basic document of title of both the plaintiffs and defendants. It is a partition deed. The properties allotted to the predecessors in interest of both the plaintiffs and the defendants in the partition are situated in the same survey number. The property of the plaintiffs is described as having an extent of 19 cents. It is described as 'purayidom'. The property allotted to the defendants' predecessor has an extent of 14 cents and is described as 'nilam'. The plaintiffs have no case that they had at any point of time converted any portion of their purayidom as nilam. The Commissioner has, in Ext C1(a) plan, indicated the plaint schedule property of the plaintiffs in green shade, as having an extent of 19 cents. He has in Ext C1 report stated that, to make up the extent of 19 cents, a portion of nilam on the south is also included. There being no case that any portion of the plaintiffs' property was converted as a nilam, necessarily they cannot claim any portion of the nilam on the south under the guise of deficit in extent. In the case at hand, there could be no doubt that description of the property by its nature, would be least subject to error and would prevail over the description by extent. The claim of the plaintiffs based on extent is thus bound to fail. Substantial question of law is answered accordingly.

The decree granted by the first appellate court is liable to be set aside.

Being a suit for fixation of boundary, and there being dispute between the parties regarding the boundary, it is only appropriate that the boundary separating the property of the plaintiffs (plaint schedule) and the property of the defendants on the south be fixed. The separating line should be the northern boundary of the nilam which separates the northern purayidom of the plaintiffs. Though Ext C1 report mentions that a portion of the nilam has also been included in the green shade, the exact area of nilam included in the green shade has not been shown in the plan. The northern boundary of the nilam is to be shown as the boundary line. The Commissioner's report and plan needs to be remitted back to the Commissioner and Surveyor for marking the demarcating line as above in Ext C1(a) plan. The matter needs to be remanded to the trial court for the said purpose.

Accordingly, it is held that, the plaintiffs are entitled to get the boundary separating their property (purayidom) with the nilam belonging to the defendants on the south fixed. The plaintiffs cannot claim right over any portion of the nilam on the south of their property(purayidom). The trial court shall remit the Commissioner's report and plan (to the very same Commissioner and Surveyor, if available) and require them to indicate in C1(a) plan the boundary line in the manner ordered above. The trial court shall dispose of the suit within a period of three months.

Regular Second Appeal is allowed as above.