Kerala High Court
Chumar vs Narayanan Nair on 25 October, 1985
Equivalent citations: AIR 1986 KERALA 236
JUDGMENT Varghese Kalliath, J.
1. This is an appeal by the defeated plaintiff. The suit was for recovery of possession of plaint schedule property on the strength of title with future mesne profits and for a mandatory injunction directing the defendant to remove a granite bund constructed by him in the plaint schedule property. The plaint schedule property is only 1/3rd of a cent of a large paddy field in Sy.
No. 44/1. The plaintiff and defendant are adjacent owners.
2. The short question to be considered is whether the plaint schedule property is included in the title deed of the plaintiff. Of course, the plaintiff contends that it is part of his property and that it is included in his title deed. Defendant also with equal force submits that the plaint property is included in his title deed and that he is in possession of the same as part of his holding. He maintained in the written statement that he had/has no intention to trespass into the plaintiff's property. He put up the granite bund only in his property. This contention was not accepted by the trial court. The trial court held that the property is not included in the title deed of the defendant and that it formed part of the property owned by the plaintiff. On this finding, the suit was decreed.
3. The defendant filed an appeal. The appellate court made a thorough re-appraisal of the evidence. The appellate court has taken great pain in analysing the facts of the case. The appellate court held that though the survey number of the property is not seen included in the title deed of the defendant, on a careful examination of the description of the property which has been given in kole measurements, it is seen that the disputed property is included in the title deed of the defendant. Ext. D1 assignment deed is the title deed of the defendant. Ext. P1 is the title deed of the plaintiff.
4. The appellate court after a careful examination of both these titles, observed that at the time of Ext. P1 pattamachit or earlier as well as at the time of Ext. D1 assignment deed, the parties could not have known that the survey boundary goes through the point 'A' and therefore, they could not have known that the portion lying to the south of that point is part of survey number 44/1. Survey number 44/1 is the survey number of the disputed property. The parties were careful in delineating the property by giving all the side measurements of the property in their title deeds. It is seen that in regard to certain side measurements, it is given with so much accuracy to note even fractions of the dhandu measurements. In Ext. D1 assignment deed, which was executed on 29th Dhanu, 1112, the north-south measurement given is 20% dhandus, whereas in the east-west direction there are two measurements shown even though the difference is only one-fourth dhandu. All these have been done to ensure the accuracy of the description of the property. From an analysis of these measurements in the light of the commission report and plan, the appellate court found that Ext. Dl title deed of the defendant would take in the disputed property also. On this finding, the appellate court dismissed the suit. It has to be remembered that where on a construction of a document transferring title to hold a property, it is clear that the intention of the parties was to transfer a parcel of land within well defined boundaries, any erroneous statement or omission to state survey number, should be rejected as falsa demonstratis.
5. I need not say that it is now well settled that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. The only point that has been urged by the learned counsel for the appellant is that the finding of the appellate court is erroneous. Of course, the learned counsel submitted that when he urges that the finding is erroneous, he only meant that the conclusion drawn by the appellate court from the factual situation emerged from the evidence and other circumstances considered in the case is wrong and that the soundness of the conclusion drawn from the finding of facts is always a matter of law. The counsel may be correct. True, the proper legal effect of a proved fact is necessarily a question of law. But on a careful consideration of the evidence which was very clearly analysed by the appellate court, I have to agree with the conclusion of the appellate court, since in my view that is the only conclusion that is possible from the findings of facts recorded by the appellate court. Since the counsel wanted to tell me what is a question of law, I am tempted to refer Rose v. Humbles, (1970) 2 All ER 519 though here it may not have much relevance. Under Section 56(6) of the Taxes Management Act, 1970, the courts have power to determine only a question or questions of law arising on the case stated, but in Rose v. Humbles (Inspector of Taxes) it was decided that the question whether or not an adjournment should have been granted is such a question. This case was followed in Ottley v. Morris, (1979) 1 All ER 65.
I see no merit in this appeal. The appeal is dismissed. In the circumstances of the case, I make no order as to costs.