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Kerala High Court

Kerala High Court

Chandrakumar vs Narayana Bahuleyan on 24 March, 2011

IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA.No. 290 of 1999(A)

1. CHANDRAKUMAR

... Petitioner

Vs

1. NARAYANA BAHULEYAN

... Respondent

For Petitioner :SRI.L.MOHANAN

For Respondent :SRI.M.C.MADHAVAN

The Hon'ble MR. Justice K.T.SANKARAN

Dated :24/03/2011

O R D E R

K.T.SANKARAN, J.

--------------------------------

S.A.No.290 of 1999

---------------------------------

Dated this the 24th day of March, 2011

JUDGMENT

The defendant in O.S.No.882 of 1991 on the file of the court of the First Additional Munsiff, Neyyattinkara,

who succeeded in the suit, but lost in A.S.No.1151 of 1994, Sub Court, Neyyattinkara, is the appellant.

2. The suit was filed by the respondents for declaration of title and possession over the plaint schedule

property, for injunction and for fixation of boundary. According to the plaintiffs, the plaint schedule property

belonged to Raghava Panicker as per Exhibit A2 partition deed of the year 1950. Raghava Panicker and his

wife Ammukutty executed Exhibit A1 settlement deed dated 6.2.1974 in favour of the plaintiffs, who are

respectively their son in law and daughter. The plaint schedule property is item No.2 in Exhibit A1 settlement

deed. The property of S.A.No.290/1999 2

the defendant lies on the southern side of the plaint schedule property. In Exhibit A1, the extent of the

property is shown as 5.67 Ares. In the plaint schedule, the extent was shown as 17.5 cents which was later

amended as 18.5 cents. The plaintiffs alleged that on 27.10.1991, the defendant tried to demolish the southern


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boundary and to trespass upon the plaint schedule property.

3. In the written statement filed by the defendant, he contended that Raghava Panicker and Ammukutty did

not get right in the plaint schedule property and therefore, they had no right to transfer the property to the

plaintiffs. Exhibit A1 settlement deed was not executed by Raghava Panicker and Ammukutty. It was

executed fraudulently and signatures of the executants were forged. The plaintiffs and their predecessors did

not have title and possession over 17.5 cents. The resurvey was not over and therefore, the plaintiffs are not

entitled to file a suit. The property of the defendant on S.A.No.290/1999 3

the southern side is a residential compound. The plaint schedule property is a Nilam and it was filled up and

coconut trees were planned. The extent of 17.5 cents would take in a portion of the defendant's property.

There is an Anjili tree in the defendant's property. The defendant alleged that the suit was filed to see that the

plaintiffs get the Anjili tree.

4. Before the trial court, PWs 1 to 4 and DWs 1 and 2 were examined and Exhibits A1 to A4, B1 to B3, C1

series and X1 were marked. Execution of Exhibit A1 was proved by examining one of the executants, namely,

Raghava Panicker as PW3. The first plaintiff was examined as PW1. An officer of Re-survey Department was

examined as PW2 and a neighbour was examined as PW4. On the side of the defendant, the Commissioner

and the Village Officer (who prepared Exhibit C1(a) plan) were examined as DWs 1 and 2.

5. The trial court dismissed the suit on the following S.A.No.290/1999 4

grounds :

(i) In Exhibit A2 partition deed, executant No.9 Kamalamma did not put her signature. There is no evidence to

show that Kamalamma had subsequently assented to the execution of Exhibit A2 and accepted her share.

Therefore, Raghava Panicker did not get title to the property as per Exhibit A2 partition deed and therefore, as

per Exhibit A1 settlement deed, the plaintiffs did not get any title to the property.

(ii) The extent of the property shown in Exhibit A1 is 5.67 Ares equivalent to 14 cents. In the plaint, theextent was shown as 17.5 cents originally and later, it was amended as 18.5 cents. There is no averment in the

plaint as to how the plaintiffs got possession of a larger extent of the property than what was stated in the title

deed.

(iii) The description of the plaint schedule property is S.A.No.290/1999 5

vague and it is not identifiable.

(iv) The resurvey proceedings have not been finalised.

6. On appeal by the plaintiffs, the lower appellate court set aside the judgment and decree of the trial court and

decreed the suit. The appellate court held that the plaintiffs have title and possession over the plaint schedule

property which was identified as plot A B C D E F G in Exhibit C1(a) plan submitted by the Commissioner.

The plaintiffs were also permitted to put up a boundary wall on the northern side of the ridge (Varambu)

running through C D E line marked in Exhibit C1(a).

7. Sri.L.Mohanan, the learned counsel appearing for the appellant/defendant submitted that the judgment and

decree of the lower appellate court are contrary to law. The counsel submitted the following points for

consideration, on the basis of the substantial questions of law formulated in the S.A.No.290/1999 6

Second Appeal :



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in the possession of the plaintiffs, the mere fact that there is larger extent than that shown in the document by

itself would not deprive the plaintiffs to get title to the excess extent. As per the field register and resurvey

plan, the total extent of the plaint schedule property comes to 7 Ares 40 sq.m. As held by the lower appellate

court, the important aspect to be considered is where exactly the southern boundary of the plaint schedule

property lies. The Commissioner reported, on inspection of the property, that on the southern boundary of the

property at C D E line, there is a ridge which is being used as a pathway. The resurvey stone was found at

point D. The Commissioner stated in the report that there is no dispute between the parties as to the location

of the survey stone. The Commissioner also noticed that as per the measurements, the S.A.No.290/1999 11

survey stone was found to be in the correct position. The Commissioner also saw that there is a

"Kalladukku" having a width of 36cm. on the southern boundary of the plaint schedule property at

C D line. He also stated in the report that the pathway passes through that area and further proceeds towards

east. According to the Commissioner, the pathway which is on a raised portion and which is almost at the

same level of the defendant's property, separates the plaintiffs' property and the defendant's property. The

Commissioner stated that the "Kalladukku" is very old. An Anjili tree was found on the northern

side of the C D E line, 88 cms. towards northern side of the line. The boundaries separating the property of the

plaintiffs and that of the defendant were found to be in tact. That was not a boundary fixed after the resurvey.

In the documents of title also, the southern boundary is shown as "Varambu". As held by the

lower appellate court, the Commissioner located the plaint schedule property, in accordance with theboundaries and S.A.No.290/1999 12

resurvey plan. Exhibit A5 produced at the appellate stage show that the resurvey settlement has become final.

The lower appellate court found that the measurements of the plot shown in the resurvey plan exactly tally

with the measurements shown in Exhibit C1(a) plan submitted by the Commissioner. The lower appellate

court also noticed that the defendant never claimed any manner of right or possession with respect to any

portion of the property on the northern side of the "Varambu" and the pathway which runs

through the southern side A B C D E F G marked in Exhibit C1(a).

11. The learned counsel for the appellant relied on Kannan vs. Kannan (1964 KLT 228) and contended that

the resurvey settlement is not conclusive of the title. In Kannan vs. Kannan (1964 KLT 228), it was heldrelying on Sri Sri Sri Krishna Chandra Gajapathi Narayana Deo vs. Pragada Ramamurthy Pantulu (AIR 1952

Madras 68) that the conclusiveness under Section 13 of the Madras Survey and S.A.No.290/1999 13

Boundaries Act, 1923 arises not from any jurisdiction with which the survey officer is endowed for

adjudicating title to immovable property, but is simply an indirect result of the fixation of the survey

boundary. In Kannan vs. Kannan (1964 KLT 228), it was held :

"In my judgment where the title to property has to be determined not with reference to the survey

demarcation, but on other and perhaps more cogent materials, the demarcation can be regarded as but one

circumstance affecting the decision on title."

12. The learned judge also referred to Ponnuswami vs. Mariappa Servai (AIR 1943 Madras 420) where it was

held : "It may be that if the dispute merely related to the title of the plot in dispute as distinguished from

a dispute as to its boundary, the order passed by the survey officer would not have become final."

13. There may be disputes between the parties on title based on survey demarcation alone or there may be

disputes S.A.No.290/1999 14

between the parties who have properties in the same survey subdivision. When the properties of the parties lie

in different survey numbers, the survey demarcation may resolve the dispute regarding boundary. But when

the survey demarcation as such has no relevance to the dispute, the boundary has to be determined with

recourse to other methods. In Kumaran Krishnan vs. Ulahannan Mathai (1957 KLT 42), it was held that



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"the evidence supplied by boundaries, extent, survey numbers and lekhoms forms the determining

factors when the identity of property is put in issue. If all these factors harmonise there is little difficulty to

identify the property in dispute. But when some of them are in conflict with the rest as when the extent and

survey numbers do not agree with the boundaries usually the boundaries predominate and the rest is regarded

as erroneous or inaccurate descriptions. This is not an inflexible rule and the guiding principle is to apply that

test which is most unlikely to be vitiated by error."

S.A.No.290/1999 15

14. In Savarimuthu Nadar Chellayan Nadar (1957 KLT 825) and Krishnamurthi Iyer vs. Janaki Amma (1957

KLT 886), it was held that when there is a conflict between the area and the boundaries, the description of the

boundaries should be accepted in preference to the area mentioned in the document for determining the extent

of the land conveyed thereunder. It was also held that this is not an inflexible rule. That which is more certain

and stable and the least likely to have been mistaken must prevail.

15. In Savithri Ammal vs. Padmavathi Amma (1990 (1) KLT 187), the Division Bench held that in cases

where there is a difference in the extent and the boundary covered by a document, one or the other which is

clearer and more specific has to be preferred. There is no invariable rule in this regard. The usual rule is that

when there is a conflict between the area and boundaries, the description of the boundaries should be acceptedin preference to the area mentioned. S.A.No.290/1999 16

16. In Velu and others vs. Padmavathy Amma and another (1983 KLN 38 Case No.39), after referring to

several decisions, it was held :

"According to learned counsel for the appellants, when there is conflict in description by measurements

and boundaries, measurements prevail over boundaries while according to learned counsel for the

respondents, the contrary is the correct position. I have been referred in this connection to the following

decisions : Zamindar of Pahipenta vs. Maharajah of Jeypore (XXIII M.L.J. 97) Subbayya Chakkiliyan vs.

Manjan Muthia Goundan and another (A.I.R. 1924 Mad. 493), Durga Prasad Singh vs. Rajendra Narain

Bagehi (I.L.R. 37 Cal. 293), Kumara Krishnan vs. Ulahannan Mathai (1957 K.L.T. 42), Chacko Joseph vs.Varghese Markose (1957 K.L.T. 485), Savarimuthu Nadar Chellayyan Nadar vs. Kanakku Rali Pillai

Padmanabha Pillai (1957 K.L.T.825) and Krishnamurthy Iyer vs. Janaki Amma (1957 K.L.T. 886). A golden

thread runs through all the decisions referred to above. A piece of land may be described in the document or

decree correctly or wrongly. Description may be given by reference to village, locality, survey number,

lekhom number, extent, S.A.No.290/1999 17

measurements or boundaries. At times, descriptions may tally pointing unerringly to a particular plot of land

in which case there will be no difficulty in locating the plot. Sometimes the various descriptions given in a

document or decree may be in conflict with each other. In such a case, the court is called upon to adjudicate

on the identity of the exact plot intended to be dealt with in the document or decree. No doubt, the court will

at first try to reconcile the various descriptions. If that be not possible, one or more of the descriptions may

have to be rejected and the other decision rested only on the other description or descriptions. When one of the

descriptions is vague and uncertain and another description is definite and certain, the latter may be preferred.

If none of the descriptions is vague or uncertain, that description which is more certain and stable and least

likely to have been mistaken or inserted inadvertently must be preferred if it sufficiently identified the subject

matter of the transaction and the other descriptions must be rejected as erroneous or inaccurate. This is not a

rule of law and therefore is not inflexible in character ; it is a mere rule of construction which appears to be

safe and almost an infallable guide."

S.A.No.290/1999 18



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17. In the present case, the description of boundaries is clear from the title deed. The boundaries were clearly

found by the Commissioner on inspection of the property. The property of the plaintiffs is nilam. However,

coconut trees have been planted in a portion of the land. The property of the defendant is admittedly lying on

a higher level and it is a "purayidam". Admittedly, a pathway (really a wide ridge) passes through

the southern side of the plaintiffs' property. The Commissioner found that ridge and fixed the southern

boundary. There is no dispute regarding the location of that ridge in the Commissioner's plan. The description

of boundaries are certain, identifiable and capable of fixing the boundary without any dispute. In such

circumstances, the extent as such may not be so important. That there is difference in the extent as shown inthe title deed and as found in the resurvey is not very material in fixing the boundary between the property of

the plaintiffs and the property of the defendant. Even if a person was found to be S.A.No.290/1999 19

having more extent of land than that shown in his title deed, however, within the four boundaries shown in the

title deed, his neighbour cannot aspire for getting that excess land, unless the latter has title to that excess

extent.

18. As contended by the learned counsel for the appellant, there is no explanation for the plaintiffs as to how

they happened to possess more extent of land than that shown in the title deed. But their case is specific

regarding the boundaries of the plaint schedule property. The boundaries on the northern, eastern and western

sides are undisputed boundaries. The southern boundary could be easily identified and it was so done by theCommissioner. Simply because the plaintiffs did not explain as to how they came into possession of a larger

extent than that shown in the title deed, I do not think they must be non suited. In paragraph 8 of the written

statement, the specific case of the defendant is that he got 66 cents of land in survey No.284/5

S.A.No.290/1999 20

as per a partition deed of the year 1991. That land is a purayidam. On the northern and western boundaries of

that property, wall and fixed boundaries are in existence. The statements in the written statement, in so far as

they relate to the boundaries, were found correct by the Commissioner on inspection of the land.

19. The court below considered all the facts and circumstances of the case and held that the plaintiffs are

entitled to a decree as prayed for. For the reasons mentioned above, I do not find any ground to interfere withthe decision of the lower appellate court.

The Second Appeal is accordingly dismissed. No costs. K.T.SANKARAN

JUDGE

csl



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