Kerala High Court
Omana Amma vs Chandrasekharan Pillai on 25 March, 2025
RSA No.323 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
RSA NO. 323 OF 2014
AGAINST THE JUDGMENT&DECREE DATED 31.03.2010 IN OS NO.96 OF 2006 OF
MUNSIFF MAGISTRATES COURT, PARAVOOR, ARISING OUT OF THE JUDGMENT&DECREE
DATED 11.12.2013 IN AS NO.179 OF 2010 OF ADDITIONAL DISTRICT COURT V,
KOLLAM .
APPELLANTS/APPELLANTS/DEFENDANTS:
1 OMANA AMMA, AGED 64
W/O.PRABHAKARAN PILLAI, RESIDING AT DEVI SADANAM,
E.S.I.JUNCTION, EZHIPPURAM CHERRY, PARIPPALLY VILLAGE,
KOLLAM.
2 NEHA KURUP, AGED 36
D/O.MAYADEVI, EDAYILA VEEDU, PAMPURAM MEVANAKONAM CHERRY,
PARIPPALLY VILLAGE, KOLLAM.
BY ADVS.
SRI.R.S.KALKURA
SMT.R.BINDU
SRI.HARISH GOPINATH
SRI.JOHNSON JOSE PANJIKKARAN
SRI.M.S.KALESH
SRI.K.KURIAN KOSHY
SMT.M.K.LEELAKUMARI
SRI.SANIL KUNJACHAN
RSA No.323 of 2014
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RESPONDENT/RESPONDENT/PLAINTIFF:
CHANDRASEKHARAN PILLAI
S/O.CHELLAPPAN PILLAI, RESIDING AT KOTTAVILA VEEDU,
E.S.I.JUNCTION, EZHIPPURAM CHERRY, PARIPPALY, KOLLAM.
BY ADVS.
P.B.SUBRAMANYAN
P.B.KRISHNAN(SR)
SAJU J PANICKER
SABU GEORGE
MANU VYASAN PETER
S.V.BALAKRISHNA IYER (SR.)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2025 ,
THE COURT ON 25.03.2025 DELIVERED THE FOLLOWING:
RSA No.323 of 2014
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JUDGMENT
1. Appellants are the defendants in the suit. The 2nd defendant is the grand daughter of the 1st defendant. The plaintiff and the 1st defendant are the children of one Sarasamma Amma. The 1st defendant is born to Raghava Kurup and the plaintiff is born to Chellappan Pillai. The suit was for fixation of boundary, partial cancellation of Ext.A4, recovery of possession with mesne profit, and consequential injunction.
2. Plaintiff's claim, in substance, is that the Plaint A schedule property having an extent of 19 ¾ cents belonged to the plaintiff as per 7th schedule in Ext.A1 Partition Deed of the year 1990. Plaint B schedule property having an extent of 6 cents is derived by the plaintiff as per Ext.A2 document. It is situated on the western side of plaint A schedule property. Both these properties are lying as a compact plot. It is recorded in resurvey as 11.50 ares. Sarasamma Amma derived plaint C schedule RSA No.323 of 2014 4 2025:KER:24971 property having an extent of 6 ¾ cents as per 1st schedule in Ext.A1 Partition deed. The said C schedule property is situated on the immediate northern side of A schedule property. In Re- survey, Plaint C schedule property is recorded as 2.40 ares in Resurvey No.251/11 in Block No.37 of Parippally Village. Though plaint C schedule property was allotted to Sarasamma Amma, the same was in absolute possession and enjoyment of the plaintiff, which was lying contiguous to plaint A and B schedule properties. The plaintiff was residing in the house in the property, which was in a dilapidated condition. He renovated it. He was looking after his mother, Sarasamma Amma, till her death. The mother had assured him to give plaint C schedule property to the plaintiff. Later, on 03.04.2006, the plaintiff came to know that Sarasamma Amma and DW2, who is another son of Sarasamma Amma had created Ext.A4 Settlement and Release deed in respect of Plaint C schedule property in favor RSA No.323 of 2014 5 2025:KER:24971 of the 1st defendant on 23.06.2003. Ext.A4 Deed covers not only Plaint C schedule property but also the property in which residential building of the plaintiff's father Chellappan Pillai is situated measuring 3.50 Ares making a total extent of 5.90 Ares. The document was registered at Chadayamangalam Sub Registrar Office. Sarasamma Amma had only 2.40 ares in Resurvey No.251/11. The 1st defendant filed O.S No.11/2006 against the wife of the plaintiff and the tenant occupying the residential building, showing the aforesaid description of the property having 5.90 ares. After obtaining an order of interim injunction, the 1st defendant dispossessed the tenant from the residential building and removed the belongings of the plaintiff's wife that were kept locked in one of the rooms in their residence. The interim order was later vacated, directing to maintain the status quo. Appeals were filed, and the appeals were disposed of, setting aside the Interim Order of the Trial Court with a RSA No.323 of 2014 6 2025:KER:24971 direction to take evidence and dispose of the case within six months. Thereafter, O.S.No.11/2006 was dismissed for default since the 1st defendant remained absent on the listed day for trial. Application for restoration of the suit was dismissed for non-payment of cost. Thus, the 1st defendant took illegal possession of the residential building of the plaintiff situated in A and B schedule properties bearing No. KPXII/35 after dispossessing the tenant under the cover of an injunction order in O.S No.11/2006. Since the 1st defendant has forcefully put her granddaughter/1st defendant and husband in possession of the residential building, it is liable to be recovered. The plaintiff is entitled to get a mesne profit @ Rs.1,000/- per month. Hence, the suit was filed for fixing the boundaries of A, B, and C schedule properties, recovery of possession of the house in the property, and to remove the part of the entries made in Ext.A4 document that the property covered thereunder is 5.90 Ares in RSA No.323 of 2014 7 2025:KER:24971 Sy No.8982/9-3 (Resurvey No.25/11).
3. The 1st defendant opposed the suit prayers by filing a Written Statement contending, inter alia, that the suit is bad for the non- joinder of necessary parties. The suit is barred by limitation. The extent of property wrongly stated with reference to resurvey cannot be acted upon. The plaintiff derived 19 ¾ cents, equivalent to 7.89 Ares, out of the 26 ½ cents of land in old survey No.8982/9/3 and 6 cents in old survey No.8982/1/6. But A schedule property is described as 8.40 Ares in the place of 7.89 Ares, along with trees and building and well. Plaint B schedule is having an extent of 6 cents as per document. But in Re-survey the same is recorded as 3.10 Ares. The actual extent of the ownership and possession of the plaintiff is 25.490 cents, equivalent to 10.32 Ares. But it is scheduled as 28.405 cents, equivalent to 11.50 Ares. It is made for the purpose of usurping the defendants' property. Mother Sarasamma Amma got first RSA No.323 of 2014 8 2025:KER:24971 schedule property in Ext.A1 with excess land along with residential building, bathroom and well which are mentioned in the said deed itself. The property comprised in survey No.8982/9/3 and 8982/5/1, along with excess land, had been in absolute possession and enjoyment of Sarasamma Amma as per Ext.A1 Partition deed. She, along with DW2, the second party in the said Partition Deed disposed the said property in favour of the 1st defendant as per Ext.A4 Settlement deed. The said property is scheduled as a counterclaim schedule property. She denied that the plaintiff came to know about Ext.A4 only on 03.04.2006. The first defendant had filed the suit when the plaintiff attempted to interfere with the property. There is no need to fix the boundary as the counterclaim schedule property is lying well separately. The plaintiff is attempting to take advantage of the mistake committed in the resurvey with respect to the excess land coming within the counterclaim RSA No.323 of 2014 9 2025:KER:24971 schedule property. The 1st defendant has settled the counterclaim schedule property in favour of the 2nd defendant. The defendants apprehend unnecessary interference from the plaintiff with respect to the enjoyment of the Counterclaim schedule property, and hence, the Counterclaim is made for a permanent prohibitory injunction.
4. The 2nd defendant also filed a Written Statement with the same contentions as those of the 1st defendant.
5. The plaintiff filed a Written Statement to the Counterclaim reiterating his contentions in the plaint.
6. On the side of the plaintiff, the wife of the plaintiff was examined as PW1, the Advocate Commissioner was examined as PW2, and Exts.A1 to A4 were marked. On the side of the defendants, the Village Officer was examined as DW1, and Sasidharan Pillai, who executed Ext.A4 along with Sarasamma Amma, was examined as DW2 and marked Exts.B1 to B6. The Commission RSA No.323 of 2014 10 2025:KER:24971 Report, Mahazar, and Plan were marked as Exts. C1, C2 and C2(a). Exts.X1 to X3 produced by DW1/Village Officer were marked as third-party exhibits.
7. The Trial Court decreed the suit fixing the boundary of the plaint A, B and C schedule properties as per Ext.C2(a) plan allowing the plaintiff to put up boundary through it, restraining the defendants from obstructing the plaintiff constructing the boundaries in the property as per Ext.C2(a) plan, cancelling the recitals in Ext.A4 as to the extent of the property of the defendant as 5.90 Ares and correcting it as 6 ¾ cents, directing the defendants to surrender possession of the residential building in the A schedule within one month failing which the plaintiff is allowed to recover possession through the Court, granting mesne profits to the plaintiff @ Rs.1000/- per month from 23.02.2006 till the defendants surrender vacant possession of the property to the plaintiff, charging plaint C RSA No.323 of 2014 11 2025:KER:24971 schedule property with the amount of mesne profits, directing to issue certificate along with the copy of the judgment to the Sub Registrar office Chadayamangalam for effecting cancellation of the extent of the property made as per decree and to make corresponding changes. The Counterclaim raised by the defendants was dismissed.
8. The defendants filed A.S.No. 179/2010 as a composite appeal challenging the judgment and decree in the suit as well as in the counterclaim. The First Appellate Court dismissed the appeal confirming the judgment and decree of the Trial Court decreeing the suit and dismissing the counterclaim. The present Regular Second Appeal is also a composite appeal filed by the defendants. It is admitted on the following substantial question of law.
"When the property has been described in the documents should not the property be identified as per the document rather than RSA No.323 of 2014 12 2025:KER:24971 based on survey records? In that event should not have the Court below ignored Exts.C2 and C2(a) Plan as wrong?
9. I heard the learned Counsel for the appellant, Sri. R. S Kalkura, and the learned Senior Counsel for the respondent, Sri. S. V Balakrishna Iyer, instructed by Adv. Sri P. B. Subramaniam.
10. The learned Counsel for the appellant contended that, admittedly, the house is situated in the property allotted to Sarasamma Amma as per the 1st Schedule of Ext.A1 Partition Deed. There is no mention about any building in the property allotted to the plaintiff as per 7th Schedule of Ext.A1 Partition Deed. The plaintiff derived only 19¾ cents, equivalent to 7.89 Ares of land as per the 7th schedule of Ext.A1, but he has included a larger extent of 8.40 Ares, equivalent to 20.750 cents in A schedule, in order to stake a false claim over the house. Even though the plaintiff has shown excess area compared to his title deed, no declaration of title was sought. The plaintiff has RSA No.323 of 2014 13 2025:KER:24971 sought for recovery of the house alone, without seeking recovery of the land. The Commission Report and Plan are not on the basis of title deeds of the parties. The Commissioner could not find out any survey stone. The measurement and identification of the properties were done solely on the basis of the plaint descriptions. The prayer for partial cancellation of Ext.A4 could not be granted under S. 32 of the Specific Relief Act since the rights conveyed as per Ext.A4 is not distinct or different. The right is conveyed over a certain extent of land only to a single person. S.32 of the Specific Reliefs Act, is applicable only if different extent of land or different rights are assigned to different persons. In the case of Ext.A4, S.32 of the Specific Relief Act is not applicable. The remedy of the plaintiff was to seek cancellation of entire Ext.A4, but the same was not sought for by the plaintiff. The Appellate Court blamed the defendants for not entering the witness box, but the Appellate Court omitted RSA No.323 of 2014 14 2025:KER:24971 to note that the plaintiff himself failed to enter the witness box to prove his case. It is for the plaintiff to discharge his initial burden with respect to his claim. Learned counsel concluded by praying to allow the appeal answering the substantial question of law in favour of the appellants and dismissing the suit.
11. On the other hand, the learned Senior Counsel for the respondent contended that the Trial Court, as well as the First Appellate Court, correctly appreciated the pleading and evidence in the case and arrived at the right conclusion. Both the Courts made concurrent findings on facts, which could not be interfered with in a Second Appeal by this Court. The recital in the First schedule of Ext.A1 that the house is situated in the said property is proved and found to be a misdescription. The Advocate Commissioner correctly identified the properties and found that the house is situated in A schedule property belonging to the plaintiff. The plaintiff produced several RSA No.323 of 2014 15 2025:KER:24971 documents to prove the ownership and possession of the house by the plaintiff. The defendant could not produce any document in support of their claim over the house rather than relying on the wrong description of the property including the house in the First schedule of Ext.A1. Even though Sarasamma Amma derived only 6 ¾ cents of land equivalent to 2.73 Ares as per the First Schedule of Ext.A1, she, along with DW2, executed Ext.A4 settlement deed with respect to 5.90 Ares in order to stake a false claim over the house on the strength of the wrong description of property in the First schedule. Sarasamma Amma derived 2.73 Ares in old Sy.No 8982/5/1 as per the First schedule of Ext.A1. But when she executed Ext.A4, she included Old Sy. No.8982/9-3 also in order to justify the inclusion of a larger extent of 5.90 Ares in Ext.A4. Partial cancellation of documents is perfectly legal under S.32 of the Specific Relief Act. The learned Senior Counsel invited my attention to the RSA No.323 of 2014 16 2025:KER:24971 commentary of the Specific Relief Act by Pollock and Mulla 14th Edition in this regard. The learned Senior Counsel cited the decision of this Court in Chandrakumar v. Narayanan Bahuleyan and another [2011 (2) KHC 884] to substantiate the point that even a person who is not an executant of a document is entitled to challenge the validity of the document. The learned Senior counsel contended that the bar under S.92 of the Evidence Act is only against the parties to the document and not against third parties. Since the plaintiff is not a party to the Ext.A4 document, he can very well adduce evidence to prove that the recitals therein are wrong. The learned Senior Counsel cited the decision of Madras High Court in Ponnammal @ Guruvammal and others v. Kanthammal and others [AIR 1952 Madras 552] to substantiate the legal proposition that a person who is not a party to a decree or document is not bound to sue for cancellation. The learned Senior Counsel cited the RSA No.323 of 2014 17 2025:KER:24971 decision of the Rajasthan High Court in Sukhlal and others v. Devi Lal and others [AIR 1954 Rajasthan 170] to demonstrate the difference between a suit for cancellation of an instrument and a suit for declaration that the instrument is not binding on the plaintiff. It is held that when the plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstacle such as a decree or a deed to which he has been a party or by which he is otherwise bound, then quite clearly he must get that decree or deed canceled or declared void in toto and his suit is in substance a suit for cancellation of the decree or deed notwithstanding the fact that the suit may have been framed as a suit for declaration. Learned Senior counsel cited the decision of the Hon'ble Supreme Court in Parvinder Singh v. Renu Goutam [2004(4) SCC 794] to substantiate the point that the rule as to exclusion of oral by documentary evidence governs the parties to the deed in RSA No.323 of 2014 18 2025:KER:24971 writing; that a stranger to the document is not bound by the terms of the document and is therefore not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. The learned Senior Counsel concluded the arguments by submitting that the substantial question of law formulated does not arise in the facts and circumstances of the present case.
12. I have considered the rival contentions.
13. Plaintiff and the defendants claim right over their respective properties as per Ext.A1 partition deed. Plaintiff derived 19 ¾ cents equivalent to 7.89 Ares of land in Survey No. 8982/9-3 as per the 7th schedule of Ext.A1. The mother of the 1st defendant derived 6 ¾ cents, equivalent to 2.73 Ares in Survey No.8982/5/1. It is clear from the description in first and seventh schedule that the property of 6 ¾ cents in the first schedule is the northern part and the 19 ¾ cents is the southern RSA No.323 of 2014 19 2025:KER:24971 part of a plot of 26 ½ cents of land. In Resurvey, the property of the plaintiff is recorded as 8.40 ares and the property of the defendant was recorded as 2.40 Ares. In resurvey, the property of the plaintiff is increased by about 0.51 ares, and the property of the defendant is reduced by 0.33 ares. It is a settled law that resurvey cannot change the title of the parties. When Ext.A4 settlement deed was executed by Sarasamma Amma and DW2 in favour of the 1st defendants the extent of the property is shown as 5.90 ares equivalent to 14.580 cents. Sarasamma Amma had derived only 2.73 Ares, equivalent to 6.750 cents as per the 1st schedule of Ext.A1. There is no indication in the 1st schedule of Ext.A1 that there is excess land. It is clear that Ext.A4 was executed for a larger extent without any title or possession for the same. It is clear that in order to justify the inclusion of excess land, Sy. No.8982/9-3 is wrongly included in Ext.A4. Sarasamma Amma did not have any property in Sy. RSA No.323 of 2014 20
2025:KER:24971 No.8982/9-3. Hence, the Trial Court, as well as the First Appellate Court, rightly found that the Ext.A4 document requires partial cancellation.
14. S.31 of The Specific Relief Act,1963 deals with the cancellation of instruments, and S.32 deals with the partial cancellation of instruments. Section 32 provides that where an instrument is evidence of different rights or different obligations, the court may, in a proper case, cancel it in part and allow it to stand for the residue. I am unable to accept the contention of the learned counsel for the appellant that the partial cancellation could be done only with reference to the rights or obligations and could not be done with reference to the subject matter of the instrument. The contention of the learned counsel for the appellant is that the remedy of the plaintiff is to seek cancellation of the entire Ext.A4. The plaintiff is aggrieved by the inclusion of the larger area in Ext.A4 than what is derived by Sarasamma RSA No.323 of 2014 21 2025:KER:24971 Amma as per the first schedule of Ext.A1, which affects his property rights. The plaintiff is aggrieved by the inclusion of the excess area alone. He wants to correct the extent of the property as 6¾ cents instead of 5.90 Ares. So, what is sought is essentially the cancellation of the rights of the 1st defendant over the excess area included in Ext.A4. He need not pray for the cancellation of the entire document. Even if such prayer is made, it could not be granted as the 1st defendant is entitled to maintain the document with respect to the property covered by the Deed with respect to which her vendor was having title. When the plaintiff is not having any grievance with respect to the inclusion of 2.73 Ares in Ext.A4 the plaintiff need not seek cancellation of the entire document. Partial cancellation with respect to the excess area included in the instrument is also partial cancellation of the rights contemplated in Section 32 of the Specific Relief Act.
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15. The Trial Court and the First Appellate Court relied on Ext.C2
(a) Plan to fix the boundary between Plaint A and C schedule properties. The house is found to be situated in Plaint A schedule property on the basis of Ext.C1 Report of the Advocate Commissioner relying on the measurements in the very same Ext.C2 (a) Plan. In Ext.C2 (a) Plan, the plaint A, B, and C schedule properties are identified by the Advocate Commissioner with the assistance of the Village Officer as per the Resurvey Plan. The Advocate Commissioner found that the residential building is situated in plaint A schedule property, and the toilet and well are situated in plaint C schedule property. As pointed out by the learned counsel for the appellant, the properties are not measured with reference to the title deed and old survey plan. The position of the residential building is also not seen marked in Ext.C2(a). Considering the variation of the extent of both parties in the resurvey, it could not be said that RSA No.323 of 2014 23 2025:KER:24971 the northern boundary of plaint A schedule property, which is the southern boundary of plant C schedule property, is correctly fixed by the Advocate Commissioner. The Advocate Commissioner ought to have identified the properties with reference to Ext.A1 Partition and Old Survey Plan. As stated earlier, in resurvey, the property of the plaintiff is increased by about 0.51 ares, and the property of the defendant is reduced by 0.33 ares. As per Ext.A1, the plaintiff has 7.89 cents in old survey No.8982/9-3, and the predecessor of the defendant derived 2.73 Ares in old survey No.8982/5-1 as per the First Schedule. It is a part of a total extent of 26 ½ cents. Only if the boundary is fixed as per Ext.A1 Partition Deed with reference to the old Survey Plan the location of the residential building could be confirmed. Without such measurement it could not be concluded that the residential building is situated in plaint A schedule property. It is true that the plaintiff has produced RSA No.323 of 2014 24 2025:KER:24971 several documents to prove his title and possession of the residential building, and the defendants could not produce any document to prove their title or possession of the residential building. Going by the smaller variation of the extent of the parties in resurvey, it is probable that the house could be situated only Plaint A schedule property. But when it is proved that the fixation of boundary as per resurvey is wrong, it is desirable to conclude the location of the residential building after fixation of the correct boundary between plaint A and C schedule properties.
16. Plaintiff also accepts allotment of property to him as per Ext.A1, even though he has not signed Ext.A1. Since the plaintiff has not signed Ext.A1, the plaintiff is entitled to adduce parol evidence to prove that the description in the 1st schedule of Ext.A1 is not correct. When it is found that the residential building is not situated in the property covered by the 1st RSA No.323 of 2014 25 2025:KER:24971 Schedule in Ext.A1, the Court is perfectly justified to hold there is a misdescription in the 1st schedule about the existence of the residential building on the principle of 'falsa demonstratio'.
17. Going by the pleadings and evidence in the case, it is clear that the main dispute between the plaintiff and the defendants is with respect to the residential building situated in the property. The specific contention of the plaintiff is that the defendants obtained possession of the residential building on the strength of the injunction order passed in O.S.No.11/2006 filed by the first defendant against the wife of the plaintiff and the tenant of the residential building. The subsequent conduct of the first defendants in not prosecuting O.S.No.11/2006 probabilize the case of the plaintiff. Ext.A20 order of the District Court in C.M.A.Nos.55/2006 and 59/2006, the District Court set aside the order of the Trial Court, holding that in the nature of the case and the rival contentions raised by the parties, it is better to RSA No.323 of 2014 26 2025:KER:24971 direct the Trial Court to decide the case itself on merit after affording the parties an opportunity to adduce evidence. The order of the Trial Court to maintain the status quo is set aside, and the Trial Court is directed to dispose of the suit itself on merits and if it is found that the appellant therein, namely the wife of the plaintiff, was in possession of the building as on the date of the suit and was forcibly evicted on the strength of the ex parte temporary injunction in I.A.No.48/2006, she is to be re- inducted in possession of the building. It is also ordered to dispose of the suit within six months. Thereafter, the first defendant did not prosecute with the suit. She did not appear on the day on which the case was listed for trial. Though a restoration petition was also filed, she allowed the same to be dismissed for non-payment of cost. The said conduct of the first defendant would clearly indicate that she wanted to avoid the trial of O.S.No.11/2006 to hide the true facts. RSA No.323 of 2014 27
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18. As rightly contended by the learned Senior counsel for the respondents, in view of Section 126 of the Bharatiya Sakshya Adhiniyam, 2023, corresponding to Section 120 of the Indian Evidence Act,1872, wife is a competent witness to give evidence on behalf of the husband. Hence, the examination of the wife of the plaintiff as PW1, who knows the subject matter of dispute is sufficient for the purpose of proving the case of the plaintiff. PW1 is a competent witness for and on behalf of her husband, who is the plaintiff in the suit. On the other hand, the defendants did not mount the box to give evidence in support of their contentions. It would definitely attract adverse inference against them as, in the facts and circumstances of the case, it would indicate that they wanted to avoid cross-examination by the plaintiff with respect to the earlier suit and non-production of any document with respect to the residential building in their name.
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19. When the conduct of the defendants, coupled with the large number of documents produced by the plaintiff to prove possession and title over the residential building, would indicate that it is the plaintiff who was in possession of the residential building. But as stated earlier, since the boundary of plaint A and C schedule properties is not correctly fixed as per Ext.A1 Partition Deed with reference to the old Survey Plan, it could not be concluded that the residential building is situated in plaint A schedule property. The Trial Court, as well as the First Appellate Court, acted illegally in fixing the boundary as per Ext.C2(a) and entering a finding that the residential building is situated in plaint A schedule property without identification of the properties which belonged to the plaintiff and the defendants as per Ext.A1 Partition Deed with reference to the old Survey Plan. Hence, the suit is liable to be remanded to the Trial Court for identifying the properties of the plaintiff and the defendants as per Ext.A1 with RSA No.323 of 2014 29 2025:KER:24971 reference to the old Survey Plan for fixation of boundaries and confirmation of the location of the residential building.
20. In view of the aforesaid discussion, I answer the substantial question of law in the affirmative and in favour of the appellant. The Regular Second Appeal is allowed in part without costs, setting aside the judgment and decree of the Trial Court in the suit as well as in the Counterclaim, which are confirmed by the First Appellate Court and further directing the Trial Court to obtain a fresh Commission Report and Plan with the assistance of a Surveyor for identifying the disputed properties of the plaintiff and the defendants with reference of 1st and 7th Schedules of Ext.A1 and Old Survey Plan to fix the boundary between A and C schedule properties and to confirm the location of the residential building and to pass appropriate orders in accordance with such Commission Report and Plan obtained by it. Parties are permitted to adduce evidence limited RSA No.323 of 2014 30 2025:KER:24971 to the identification of the properties. The parties are directed to appear before the Trial Court on 07.04.2025.
SD/-
M.A.ABDUL HAKHIM JUDGE jma/shg