Chandrakumar vs Narayana Bahuleyan on 24 March, 2011

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 ORDER 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
Indian Kanoon - http://indiankanoon.org/doc/146617413/ 1

Chandrakumar vs Narayana Bahuleyan on 24 March, 2011

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, the extent 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 :
Indian Kanoon - http://indiankanoon.org/doc/146617413/ 2

Chandrakumar vs Narayana Bahuleyan on 24 March, 2011

(i) Since one of the executants in Exhibit A2 did not put her signature in the said partition deed, the donor of Exhibit A1 did not get title. (ii) Fixation of boundary as per resurvey does not confer title to the plaintiffs over a larger extent of land than that shown in the title deed. Therefore, the court below was not justified in decreeing the suit. (iii) The extent, shown in Exhibit A1 is 5.67 Ares which is equivalent to 14 cents. In the absence of any pleading as to how the plaintiffs happened to get possession of a larger extent, the plaintiffs are not entitled to get a decree in respect of a property having an extent of 18.5 cents. 8. Sri.M.C.Madhavan, the learned counsel appearing for the respondents/plaintiffs submitted that non signing of S.A.No.290/1999 7 Exhibit A2 document by one of the executants would not constitute a defect in title. He also submitted that the resurvey was completed as evidenced by Exhibit A5 resurvey plan produced at the appellate stage. Sri.Madhavan submitted that when there is a discrepancy in extent, survey number and boundaries, the boundaries will prevail. 9. In Exhibit A2 partition deed, one of the executants did not put her signature. The question is whether the defendant, who is not a party to that document and who does not claim title thereunder, can dispute the binding nature of the document and on that ground, deny the title of the plaintiffs. There is no dispute among the executants of Exhibit A2 regarding the validity or otherwise of that document. There is no case that Kamalamma, who did not put her signature in Exhibit A2, ever challenged the validity of Exhibit A2. The defendant is not claiming under Kamalamma or any of the executants of Exhibit A2. The title S.A.No.290/1999 8 claimed by the defendant is unconnected with and unrelated to Exhibit A2. The defendant is not a party to Exhibit A2. It is true that even a person who is not executant of a document is also entitled to challenge the validity of a document [See Kannan Nambiar vs. Narayani Amma and others (1984 KLT 855); Devi Das vs. Mohan Lal (AIR 1982 SC 1213) ; Krishnan Assari vs. Parameswaran Pillai (1989 (1) KLT 63)]. But such denial or challenge to title must be in relation to the claim put forward by the party who challenges the validity of the document. In the present case, the defendant claims title to his property under a different document and that claim has no relation to Exhibit A2. If the partition deed is held to be not valid for the reason that one of the executants did not put her signature in it, what would follow is only that all the co-owners who are parties to the document would be having title to the properties. If so, the plaintiffs could claim only the fractional right of Raghava Panicker, as against the other co-owners. But a stranger would not be entitled to challenge the title of the plaintiffs on that ground. S.A.No.290/1999 9 Therefore, I am of the view that the defendant is not entitled to raise the contention that Exhibit A2 does not confer any title on Raghava Panicker, one of the executants of Exhibit A1 settlement deed. 10. The extent shown in item No.2 in Exhibit A1, which is the plaint schedule property, is 14 cents. The only contention raised by the plaintiffs is that at the time of resurvey settlement, the extent was found to be 17.5 cents. The Commissioner, on measurement of the property in accordance with the boundaries, found that the extent of the property is 7 Ares 40 Sq.m. equivalent to roughly 18.5 cents. No averments are made in the plaint as to how the excess extent happened to be in the possession of the plaintiffs. This would have assumed importance if the boundaries of the property could not be fixed in accordance with the description of boundaries shown in the title deeds. If the boundary is to be fixed only on the basis of the extent, this difference in S.A.No.290/1999 10 extent and lack of pleadings may assume importance. When the description of boundaries is clear, and within the four boundaries stated in the document more extent of land than that shown in the document is found to be
Indian Kanoon - http://indiankanoon.org/doc/146617413/ 3

Chandrakumar vs Narayana Bahuleyan on 24 March, 2011

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 the boundaries 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 held relying 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
Indian Kanoon - http://indiankanoon.org/doc/146617413/ 4

Chandrakumar vs Narayana Bahuleyan on 24 March, 2011

"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 accepted in 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

Indian Kanoon - http://indiankanoon.org/doc/146617413/

Chandrakumar vs Narayana Bahuleyan on 24 March, 2011

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 in the 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 the Commissioner. 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 with the decision of the lower appellate court. The Second Appeal is accordingly dismissed. No costs. K.T.SANKARAN JUDGE csl

Indian Kanoon - http://indiankanoon.org/doc/146617413/