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Kerala High Court
Kunhilakshmi Ammal vs T.Vasumathi on 15 January, 2010




RSA.No. 8 of 2010()

                      ...  Petitioner


                       ...       Respondent





                For Petitioner  :SRI.T.RAMPRASAD UNNI

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :15/01/2010

 O R D E R
                        THOMAS P JOSEPH, J.


                         R.S.A.No.8 of 2010A


               Dated this 15th day of January, 2010


The second appeal arises from judgment and decree of learned District Judge, Palakkad in A.S.No.249 of 2006 granting decree for recovery of possession of the suit property on the strength of title claimed by the respondents and allowing recovery of damages to the tune of Rs.1,000/- for allegedly cutting and removing a rose wood tree from the disputed property.

2. Respondents/plaintiffs claimed that the plaint A schedule, described as 1.92 acres belonged to their predecessor-in-interest, Krishnankutty Gupthan as per Ext.A1, assignment deed No.858 of 1972 dated 14-03-1972 and on his death that property devolved on the respondents, his legal heirs. Of the said property, 1.79 acres towards northern side was sold. The rest of the property over which according to the respondents they have title is 13 cents described in plaint B schedule. Property of appellants is situated on the south of plaint B schedule. Respondents alleged that on 06-03-1996 appellants trespassed into the plaint B schedule, took forcible possession of the same and cut down a rose wood tree from it causing loss of Rs.15000/- to them. Hence the suit. Appellants disputed the extent and boundaries of plaint A and B schedule items and contended that plaint R.S.A.No.8 of 2010 2 B schedule was never part of plant A schedule. They claimed that the B schedule is part of the property belonging to them. The disputed property along with property admittedly belonging to them belonged to and was in the possession of their predecessor-in-interest, Narayana Gupthan who was possessing and enjoying the same from 1962 onwards. Disputed rose wood tree stood in the property belonging to them. Alternatively a plea of adverse possession and limitation is also raised. Trial court dismissed the suit holding that identity of the disputed property is not proved and that in view of the report of the Advocate Commissioner (Exts.C1 to C2(a)), contention of respondents that after sale of 1.79 acres in Sy.No. 45 they are entitled to 13 cents as per Ext.A1 cannot be sustained. Trial court also found in favour of plea of adverse possession and limitation raised by the appellants holding that the alleged trespass on 06-03-1996 is absolutely false. Respondents challenged judgment and decree of the trial court in appeal. Learned District Judge found title of the disputed property in favour of the respondents and held that plea of adverse possession is not established. First appellate court has referred to the decision of the apex court in P.T.Munichikkanna Reddy & Others Vs. Revamma and Others (2007(6) SCC 59) to hold that plea of adverse possession and limitation raised by the appellants cannot stand. Accordingly respondents were given a decree for recovery of possession on the strength of their title. Accepting the case of the R.S.A.No.8 of 2010 3 appellants regarding value of the rose wood tree which admittedly was removed by them from the suit property, respondents were given a decree for damages to the tune of Rs.1000/-. That judgment and decree are under challenge in the second appeal at the instance of appellants/defendants raising by way of substantial questions of law whether in case of conflict between boundary and measurement which shall prevail to determine the identity, possession and title of the property, whether without examining the Advocate Commissioner his report is admissible in evidence and could be acted upon and whether finding of the first appellate court that appellants have not perfected title by adverse possession and limitation is legally correct. Learned Senior Advocate appearing for appellants contended that first appellate court was not legally correct in reversing judgment and decree of the trial court. It is argued by learned Senior Advocate that Exts.C1 to C2

(a) should not have been accepted and acted upon since the Advocate Commissioner and Surveyor who prepared the same were not examined by the respondents. The further contention is that in a case of this nature where there is conflict between boundary and survey number, the first appellate court ought to have accepted boundary as the determining factor to decide title. Reliance is placed on the decision of the apex court in Subhaga and Ors. Vs. Shobha and Ors. (2006 (5) SCC 466) where in para 6 it is stated, "a property can be identified either by boundary or R.S.A.No.8 of 2010 4 by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail."

(emphasis supplied) It is necessary to refer to evidence on record to consider the contention raised by learned Senior Advocate. As per Ext.A1, 1.92 acres falling in Sy.No.45 and 20 cents in 53/1A were acquired by Krishnankutty Gupthan, predecessor-in-interest of the respondents. The said 1.92 acres in Sy.No.45 is described in plaint A schedule. It is the case of respondents that of the said 1.92 acres, 1.79 acres towards the northern side is already sold and what remained is 13 cents (plaint B schedule). Respondents produced Ext.A2 to prove the transfer. Learned Munsiff was under a wrong impression that as per Ext.A2, 1.79 acres were sold and admittedly another 7 cents also was sold making the property already disposed of to 1.86 acres in which case version of respondents that the remaining extent is 13 cents cannot be accepted. But sale as per Ext.A2 was of 1.72 acres, though reference was made in Ext.A2 to another 7 cents already sold. Ext.A2 thus evidenced sale of 1.79 acres. Hence what remained from the plaint A schedule is 13 cents in Sy.No.45. It is clear that trial court was R.S.A.No.8 of 2010 5 under a wrong impression as to the extent of property sold while holding that respondents have no title over the 13 cents referred to in plaint B schedule.

2. So far as title of the respondents over the said 13 cents is concerned, it is revealed from Exts.C2 and C2(a) that the said 13 cents (plaint B schedule) formed part of the plaint A schedule the 1.92 acres in Sy.No.45. Properties were measured with the assistance of the Taluk Surveyor. On measurement it was found that out of the 1.92 acres in Sy.45, 1.79 acres has already been sold. The portion already assigned - 1.79 acres is marked in yellow shade in Ext.C2(a). The remaining extent is the 13 cents in Sy.No.45 given in green colour in Ext.C2(a). The said 13 cents along with the property already assigned made up the total extent up to 1.92 acres stated in Ext.A1. It is also reported by the Advocate Commissioner that property admittedly belonging to the appellants is comprised in Sy.Nos.53/2, 3, 7 and 43. But the disputed property (plaint B schedule) does not come within any of the above survey numbers. On the other hand the disputed property came in Sy.No. 45 which is referred to in Ext.A1. It is true that in Ext.A1 survey number 53/1A is also mentioned. But the 1.92 acres referred to in plaint A schedule of which, plaint B schedule forms part is identified to be comprised in Sy.No.45. Basing on Exts.A1, A2 and C1 to C2(a), the first appellate court found title of the plaint B schedule in favour of the respondents. Though being a suit on title R.S.A.No.8 of 2010 6 respondents have to win on the strength of the title claimed by them and the weakness of the case of appellants in no reason to find in favour of the respondents. It is relevant to note that appellants who claimed title over plaint B schedule under Narayana Gupthan did not care to produce their title deeds. None of the appellants even mounted the witness box.

3. One contention raised is that without examining the Advocate Commissioner and the Surveyor Exts.C2 and C2(a) could not have been admitted in evidence and acted upon. The Commissioner and Surveyor have inspected the property and measured the same with notice to the appellants. In that situation the report and plan prepared by the Advocate Commissioner and Surveyor form part of the records of the case and is evidence even without examining them in view of Order 26 Rule 10(2) of the Code of Civil Procedure (for short, "the Code") brought in by the amendment of 1976. If appellants had any objection to the report and plan it was for them to examine the Commissioner and Surveyor. It has been so held by a Division Bench of this court in State of Kerala Vs. Kottammal Mammeeriyakutty and Ors. (AIR 1985 Kerala 109). It is held, referring to sub rule (2) of Rule 10 of Order 26 of the Code that report of Commissioner and not merely the evidence shall form part of the record of the case, can be treated as evidence and that if the opposite party objected to the report it is for him to examine the Commissioner and elicit such R.S.A.No.8 of 2010 7 information as is required. Appellants have not examined the Commissioner or Surveyor to substantiate their objection if any to Exts.C2 and C2(a). Hence first appellate court is justified in acting upon Exts.C2 and C2(a) even without respondents examining the Commissioner or Surveyor.

4. Next contention is that the boundary description ought to have been preferred to description by extent and survey number. It is in this connection that learned Senior Advocate has relied on the decision of the Supreme Court (supra). This court in Savithri Ammal Vilasini Ammal Vs. Jayaram Pillai Padmavathi Amma (1989 (2) KLJ 709) held after referring to the decisions in Krishnan Vs. Mathai (1957 KLT 42) and Krishnamurthi Iyer Vs. Janaki Amma (1957 KLT 886) that there is no invariable rule that in case of conflict between extent, survey number, boundaries and other descriptions, the one should prevail over the other. It is a matter of construction of the document and the one or other description which is more clearer and specific will prevail. The decision of the Supreme Court relied on by the appellants does not go against the above principle as it is held there also that 'normally' it is the boundaries that will prevail.

5. The argument advanced by learned Senior Advocate is that the report of the Advocate Commissioner would show that there is a specific boundary in between the 1.79 acres already sold by respondents as stated in Ext.A2 and the 13 cents on the further south R.S.A.No.8 of 2010 8 (plaint B schedule), the said 13 cents and property admittedly belonging to the appellants on its south lie contiguous which indicate that up to the boundary on the north reported by the Advocate Commissioner, title of appellants extended. The Commissioner has reported that along the southern boundary line of the 1.79 acres already sold (from plaint A schedule) there was an old fence and boundary wall the oldness of which was assessed as about 10 years. But that does not by itself mean that up to that boundary appellants have title. Nor have the appellants produced oral or documentary evidence that up to the said boundary wall they have title. I must also bear in mind that the advocate commissioner with the assistance of the Surveyor measured the properties with reference to the documents of title and the survey records and plaint B schedule was found to be forming part of plaint A schedule. Description of plaint B schedule tallied with the findings in Exts.C2 and C2(a). The survey number and extent tallied. Boundary description did not also go against the respondents. There is therefore no scope for a contention that the boundaries should prevail and that proved title of the appellants. In the light of Exts.C2 and C2(a) and going by the survey numbers and extent, there is no possibility of the disputed 13 cents being part of the property belonging to the appellants. Having regard to the facts, evidence and circumstance the first appellate court was legally and factually correct in relying on Exts.A1, A2, C2 and C2(a) to hold that R.S.A.No.8 of 2010 9 the disputed property formed part of property belonging to the appellants as per Ext.A1.

6. So far as the claim of adverse possession is concerned, trial court observed that the contention of the respondents regarding trespass on 06-03-1996 is absolutely false and that plaint B schedule must have been in the possession and enjoyment of appellants for "many years" prior to the filing of the suit. That finding is based on the report of Advocate Commissioner that oldness of the boundary wall between plaint B schedule and the 1.79 acres on its north already sold is about 10 years. Trial court did not say that appellants are in possession of the disputed property for the statutory period. First appellate court has referred to the relevant circumstance to hold that the plea of adverse possession cannot be sustained. Assuming that trespass into plaint B schedule was on 06-03-1996 as pleaded by the respondents, that did not mean that respondents could not recover the property on the strength of title. Once title is proved the only defence available is that such title is lost by adverse possession and limitation. Here is a case where appellants claimed title for themselves and alternatively contended that title if any, of respondents is lost by adverse possession and limitation. The Supreme court had held in Krishnamurthy S. Setlur Vs. O. V. Narasimha Setty and Ors. (2007 (3) SCC 569) that when a plea of adverse possession is raised, the person concerned has to plead and prove that his possession was R.S.A.No.8 of 2010 10 continuous, exclusive and undisturbed to the knowledge of the real owner of the land. He has also to show a hostile title. He has to communicate his hostility to the real owner. It is also held by the Supreme Court that adverse possession should start with wrongful dispossession of the rightful owner and be actual, visible, exclusive and continued over the statutory period (see Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan (2008 (4) KLT 357 (SC)). In Ramzan Vs. Gafooran (2008(2) KLT S.N..68- case No.82) the Allahabad High Court has held that when the possessor exercised right over the property as owner, it cannot be said that he claimed title adverse to the true owner. In the present case appellants did not admit title of the respondents over plaint B schedule. They claimed title for themselves in which case it cannot be said that they were holding the property adverse to the title of respondents or, with the necessary hostile animus to them. That a plea of adverse possession is raised alternatively is not by itself sufficient. Also, there is no oral or documentary evidence to prove that appellants have been in possession of plaint B schedule for the statutory period. The mere fact that Commissioner has reported oldness of the boundary wall between the 1.79 acres sold and plaint B schedule as about 10 years is not by itself sufficient to prove possession for the statutory period. In the circumstances first appellate court is justified in holding against the plea of adverse possession and limitation. Consequently respondents R.S.A.No.8 of 2010 11 were given a decree for recovery of possession on the strength of their title. The finding regarding damages is on admitted fact that the rose wood tree which was cut and removed by the appellants from the disputed property is valued at Rs.1000/-. Having heard learned Senior Advocate and gone through the judgment under challenge I am not satisfied that any any substantial question of law is involved in this appeal requiring its admission.

The second appeal is dismissed in limine.