Kerala High Court
P.N. Prema Gangadharan Nair vs Kottara Balan Nair
Author: K.Ramakrishnan
Bench: K. Ramakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K. RAMAKRISHNAN
THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939
S.A.NO.684 OF 1998 (F)
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AGAINST THE DECREE & JUDGMENT DATED 17.6.1998 IN AS 53/1997 OF
I ADDITIONAL SUB COURT, KOZHIKODE
AGAINST THE DECREE & JUDGMENT DATED 7.12.1996 IN OS 420/1991 OF
ADDITIONAL MUNSIFF COURT, KOZHIKODE-II
APPELLANT/RESPONDENT/PLAINTIFF:
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P.N. PREMA GANGADHARAN NAIR, AGED 17,
S/O. KRISHNANKUTTY KURUP,
EDAKKATTUPARAMBATH HOUSE,
NELLIKKODE VILLAGE, KOZHIKODE.
BY ADV.SRI. P.U. SHAILAJAN
RESPONDENTS/APPELLANTS/DEFENDANTS:
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1. KOTTARA BALAN NAIR, AGED 57,
S/O. RAMANKUTTY NAIR, NITHIYA
SREE HOUSE, NELLIKKODE VILLAGE,
KOZHIKODE.
2. KOTTARA PADMANABHAN NAIR, AGED 52,
S/O. RAMANKUTTY NAIR, -DO- -DO-
ADDL.R3 THE SECRETARY, HINDUSTAN LEVER EMPLOYEES AND
EX-EMPLOYEES CO-OPERATIVE SOCIETY LTD.NO.D 2372,
KOZHIKODE.
ADDL.R3 IS IMPLEADED AS PER ORDER DATED 19.9.2014 IN
IA.686/2014
R1&R2 BY ADVS.SRI.M. KRISHNAKUMAR
SMT. PRABHA R.MENON
R1 BY ADVS.SRI.T. SETHUMADHAVAN (SR.)
SRI.PUSHPARAJAN KODOTH
SRI.K. JAYESH MOHANKUMAR
ADDL.R3 BY ADV.SRI.AVM. SALAHUDIN
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 4.8.2017, THE
COURT ON 31.8.2017 DELIVERED THE FOLLOWING:
K.RAMAKRISHNAN, J.
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S.A. No.684 of 1998
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Dated this the 31st day of August, 2017
JUDGMENT
Plaintiff in O.S.420/1991 on the file of the Additional Munsiff Court-II, Kozhikode is the appellant herein. The suit was one filed by the plaintiff for permanent prohibitory injunction restraining the defendants and their men from trespassing into the plaint schedule property and interfering with the plaintiff's peaceful possession and enjoyment of the same by constructing a compound wall on the boundary of the plaint schedule property. It is alleged in the plaint that the plaint schedule property originally belonged to one Idavalakandiyil Unneri Nair. Late Padmavathiyamma, the mother of the plaintiff purchased the property from the above said Unneri Nair as per registered document of the year 1979 and thereafter she has been in possession and enjoyment of the same. After the death of the said Padmavathiyamma, her right in the property devolved on the plaintiff and his sisters, Sathyabhama Amma, Sobhanakumari and Shylaja and they were in joint possession of the same. On 18.04.1986, the sisters of the plaintiff executed a registered release deed in respect of their share in the plaint schedule property in favour of the plaintiff on receiving consideration and thereafter he has been in possession and S.A. No.684 of 1998 2 enjoyment of the plaint schedule property. After purchasing said property, the plaintiff had made several improvements in it. He had also decided to protect the property by constructing a compound wall arround it. On 31.05.1991, the plaintiff attempted to construct a compound wall on the southern side of the property, but it was objected by the defendants. The defendants has no manner of right to prevent the plaintiff from constructing a compound wall. The defendants are having property on the southern side of the plaint schedule property. There is a well defined boundary separating the property of the plaintiff and the defendants. If the compound wall is not constructed, it would be difficult to protect the property of the plaintiff. So the plaitnfif had no other remedy, except to approach the court for permanent prohibitory injunction as prayed for. Hence the suit.
2. Defendants filed written statement contending as follows:
The property having an extent of 70 cents comprised in R.S. No.75/1 of Nellithodu village, of which plaint schedule property is a part originally belonged to Ramankutty Nair, the father of the defendants and under the said Ramankutty Nair, the property was in the possession of Idavalakandiyil Unneri Nair as mumbattavakasam. While so, he surrendered possession of the property to Ramankutty Nair as per release deed dated 02.12.1964, but on the same day, from S.A. No.684 of 1998 3 the northern side of the entire property, 17= cents of the land was re- transfered to the said Unneri Nair by the said Ramankutty Nair as per mumbatta kaichit. Thereafter first defendant got right over the remaining 52= cents of land in R.S.No.75/1 which is the balance of the above said 70 cents after deducting 17= cents given to Unneri Nair as per will deed executed by his father Ramankutty Nair. The above said 17= cents of land is the plaint schedule property. The immediate northern side of the plaint schedule property comprised in survey No.75/1 situate the property comprised in resurvey No.77 and this property is known by the name Idakkattuparambathu thazham nilam. Through the eastern and northern boundary of the property comprised in survey No.75/1, there lies a thodu and this thodu also comes within R.S.No.75/1 The area which is occupied by the above said thodu is also a portion comes within the property which the above said Unneri Nair got as per mumbatta kaichit dated 02.12.1964. Plaintiff as well as his predecessor in interest had made several alterations and modifications in the said thodu and now the thodu situate more towards south than in its original position. Actually some portion of the land which now situates in the northern side of the above said thodu also comes within R.S.No.75/1and that portion is higher in level than that of the ground level of the thodu and the plaintiff had planted coconut trees in the bund that situates in east S.A. No.684 of 1998 4 west direction in that place. So it can be seen well that Unneri Nair and his successor in interest were having right and possession over certain portions of the land that situates even on the northern side of the above said thodu and this can be brought out only in evidence if an Advocate Commissioner was appointed to measure the property. The defendant's father Ramankutty Nair got purchase certificate in respect of the above said 52= cents of land which is now in the ownership and possession of the first defendant from the Land Tribunal, Kozhikode in the year 1976. Plaintiff's property is situated on the northern side of nadavaramba that leads to Idakkattuparambathu paramba. Actually two pieces of paddy land situates on the north of above said nadavaramba alone is in the ownership and possession of the plaintiff. During April, 1991, plaintiff made an attempt to take away some portions from the northern side of nadavaramba towards his land, then police interfered in the matter and plaintiff was warned against such encroachment and any portion of the above said nadavaramba. Even after filing of the suit, plaintiff had made attempt to trespass into the property, which belongs to the first defendant and tried to occupy certain portion of it. In connection with that incident, first defendant lodged a complaint before the Sub Divisional Magistrate and thereupon police had registered crime No.124/91 against the plaintiff and lodged final report before the Sub Divisional Magistrate Court. Plaintiff has no S.A. No.684 of 1998 5 manner of right over the above said 52= cents of land, which is in the absolute ownership and enjoyment of the first defendant. The first defendant has no objection in the plaintiff constructing a compound wall in and around the property actually owned and possessed by the plaintiff. At the same time, plaintiff has no manner of right to construct any compound wall adding any portion from the property of the first defendant. He had filed the suit without any bonafides and mischievous intention to grab some portion of the property belonging to the first defendant. The second defendant is an unnecessary party to the suit. The plaintiff is not entitled to get any relief and they prayed for dismissal of the suit.
3. On the basis of the pleadings following issues were framed by the trial court for consideration:
1. What are the correct measurements, extent and boundaries of the plaint and adjacent properties?
2. Whether the alleged attempt of trespass is true?
3. Whether the plaintiff is entitled for the injunction prayed for?
4. What order as to costs?
4. In order to prove the case of the plaintiff, plaintiff himself was examined as PW1 and Exts.A1 to A7 and C1 to C5 were marked on his side. The first defendant was examined as PW1 and Exts.B1 to B5 were marked on the side of the first defendant. After considering the evidence on record, the trial court came to the conclusion that the S.A. No.684 of 1998 6 plaintiff is in possession of the property on the northern side of the nadavaramba which includes a strip of land on the eastern side of plot ABCD, identified by the commissioner in Ext.C5 plan and granted an injunction in respect of plot ABCD, excluding the portion occupied by the existing nadavaramba including the eastern portion up to the boundary from plot ABCD, restraining the defendant from trespassing into that portion of the property and obstructing the plaintiff from putting up a compound wall on the northern and eastern side of the nadavaramba.
5. Dissatisfied with the same, defendants filed A.S.61/97 before District Court, Kozhikode which was made over to Sub Court, Kozhikode for disposal where it was renumbered as A.S.57/97 and further made over to First Additional Sub Court, for disposal. After re- appreciating the evidence and hearing the submissions of both sides, the First Appellate Court came to the conclusion that plaintiff is not entitled to get an injunction as prayed for as there is dispute in respect of the southern boundary and without making any attempt to fix the boundary, suit for injunction simplicitor is not maintainable and allowed the appeal dismissing the suit. Dissatisfied with the same, the present second appeal has been preferred by the appellant/plaintiff before the court below.
6. While admitting the second appeal, this court appears to have S.A. No.684 of 1998 7 accepted the substantial question of law raised in the appeal memorandum for consideration, which reads as follows:
i. Whether the lower appellate court was justified in deviating from the well settled principle that when there is a conflict between extent, measurement and boundaries the boundaries will prevail?
ii. In the facts and circumstances of the case whether a suit for injunction is not maintainable in law?
7. Earlier the second appeal was disposed of by this court by judgment dated 30.3.2009. Thereafter the first respondent filed R.P.1133/2009 to review the judgment and this court by order dated 25.08.2011 allowed the same and reviewed the judgment and recalled the earlier judgment and posted for fresh consideration. Thereafter the appeal was dismissed for default on 9.4.2012 and thereafter restored to file as per order in MJC No.399/2012 dated 19.7.2012. Additional third defendant was impleaded as per order in I.A.No.686/2014 dated 19.09.2014.
8. Heard Sri.P.U.Shylajan, learned counsel appearing for the appellant and Smt.Deepa, learned counsel who represented Sri.Sethumadhavan, learned senior counsel appearing for the first respondent and Sri.A.V.M.Salahuddeen, learned counsel appearing for the additional third respondent.
9. The counsel for the appellant argued that it is a simple suit for injunction and the relevant question to be considered is only who was S.A. No.684 of 1998 8 in possession of the property as on the date of suit. Even according to the defendants in the written statement, the appellant is in possession of the property on the northern side of the nadavaramba and the first defendant is in possession of the property on southern side of the nadavaramba and they did not make any claim in respect of any portion of the land on the northern side of the nadavaramba. So from the evidence, it is clear that he is in possession of the property on the northern side of the nadavaramba and court below had correctly appreciated the evidence and intention of parties and rightly gave a judgment in favour of the appellant. The lower appellate court was not justified in dismissing the suit especially when the defendants did not dispute the right of the plaintiff over 17= cents on the northern side of the nadavaramba. The lower appellate court ought to have at least accepted Ext.C5 plan in respect of the plot ABCD and should have granted an injunction accordingly. He had relied on the decisions reported in Abdulla v. Damodaran Namboodiri (1972 KHC 13), Venkiteswara Kammathi Balakrishna Kammathi v. Anantha Pai Ganesha Pai & Others (1954 KLT 87), Chacko Joseph v. Varghese Markose (1957 KLT 485), Pattathari Kuttiraman v. Puthukkudi Narayanan (2010 (3) KHC 136), in support of his case.
10. On the other hand, the counsel for the respondent submitted that the plaintiff had claimed only possession of 17= cents S.A. No.684 of 1998 9 of land covered by a sale deed executed by the predecessor in the interest of defendants, where survey number, boundaries, extent and measurement have been given specifically. So the plaintiff is only entitled to get that much extent of property and he is not entitled to get any extent more. He had not stated in the plaint as to whether he is in possession of the excess land and if so how he got the same etc. He had no case that though the extent is shown as 17= cents, he is entitled to get more extent and he is in possession of the property within the boundaries mentioned in the document. Learned senior counsel also submitted that, the lower appellate court was perfectly justified in coming to the conclusion that when the boundaries are disputed, without prayer for fixation of boundary or declaration of title the plaintiff is not entitled to get the relief claimed and rightly dismissed the suit. The trial court was not justified in fixing the boundary on the southern side of the plaint schedule property as the nadavarmba, especially when measurements were given. Further the lower appellate court was also not justified in fixing the boundary of the plaint schedule property as plot ABCD and the excess land on the east up to the boundary. In the absence of any evidence regarding excess possession of property by the plaintiff, he is not entitled to get injunction in respect of the eastern portion of the plaint schedule property which is situated on the east of plot ABCD in Ext.C5 plan. The S.A. No.684 of 1998 10 counsel has relied on the decision reported in Arikkulangara Kunhikkeloth Righesh Babu and Another v. Pullanhodan Kunnoth Gopalan Nambiar (Died) by LRs and Others (2014 (4) KHC 294); Vishram alias Prasad Govekar and Others v. Sudesh Govekar (D) by LRs and Others (2017 KHC 2209) and Ananthula Sudhakar v. P. Buchi Reddy (Dead) by LRs and Others (2008 KHC 6249) in support of her case.
11. The case of the plaintiff in the plaint was that he had obtained 17 = cents of land as per Exts.A1 and A2 documents. The property originally belonged to Ramankutty Nair, the father of the 1st defendant as per Ext.A7 document dated 30.09.1950. Thereafter out of that property, 17 = cents of land was taken by one Unneeri Nair, on the northern side of the entire property and same was obtained by late Padmavathi Amma from Unneeri Nair, who is the mother of the plaintiff as per Ext.A1 assignment deed dated 28.01.1979. After her death, her right in the property devolved on the plaintiff and his three sisters, namely, Sathyabhama Amma, Shobhanakumari and Shylaja, who had released their right in favour of the plaintiff as per Ext.A2 release deed. Thereafter he has been in possession and enjoyment of the same. But on 31.05.1991, when the plaintiff wanted to construct a compound wall, it was objected by the defendants which lead to the filing of the suit. According to the defendants, it was admitted that the S.A. No.684 of 1998 11 property was in the possession of the Unneeri Nair who had surrendered his right to Ramankutty Nair who is the father of the defendants in the year 1950 as per Ext.A7 document and on the same day, Unneeri Nair obtained lease on the basis of Mumpatta kachit in respect of 17 = cents of land on the northern side of the entire property. That right has been obtained by the plaintiff, by change of hands. The 'thodu' mentioned on the northern side is not the boundary on the northern side as claimed by the plaintiff. But in fact 'thodu' is also included in the property and it is comprised in Survey No.75/1 and later the 'thodu' was deviated due to filling of the land by the plaintiff and his predecessor and the plaintiff is having property on the northern side of the 'thodu' also. The attempt of the plaintiff is to encroach into the property of defendants by showing the 'thodu' as the northern boundary. Further, he had no property beyond the 'Nadavarmba', which is the southern boundary of the property. Except 17 = cents as mentioned above, the plaintiff has no right or possession of any land and the remaining property is in the possession and ownership of father of the 1st defendant Ramankutty Nair who had obtained purchase certificate as per Ext.B1 document and his right was bequeathed in favour of the 1st defendant as per Ext.A6 will and thereby he has been in possession and enjoyment of the remaining property. According to him, the total extent of the property obtained S.A. No.684 of 1998 12 by his father was 70 cents, out of which 17 = cents was assigned in favour of Unneeri Nair and remaining 52 = cents of land is in his possession. The plaintiff had attempted to trespass into their property, which was objected by him and he had no objection in properly fixing the boundary by measuring the property by an Advocate Commissioner to decide the case.
12. Admittedly, the plaint schedule property originally belonged to Ramankutty Nair from whom the predecessor interest of the plaintiff obtained 17 = cents of land. The case of the plaintiff at the time of evidence was that though the extent of the property was shown as 17 = cents of land, in fact he has been in possession of the property within the boundaries mentioned in the document, but such a claim was not made by him in the plaint. Further his case was that as per the measurement in Ext.A7, Ramankutty Nair obtained only 61 < cents of land and after assignment of 17 = cents, he was having only remaining extent of 43 > cents of land and not 52 = cents as claimed by the first defendant. But it may be mentioned here that the plaintiff has to prove that he has obtained the property within the boundaries and not the extent mentioned in the document and the intention of the parties was to give property as claimed by him. Further, the northern boundary 'thodu' and not the survey boundary. Admittedly, the northern property is in the possession of the 3rd party S.A. No.684 of 1998 13 comprised in resurvey No.77 and the property of the plaintiff and defendants is comprised in Survey No.75/1. The Commissioner had measured the property with the help of surveyor and submitted Ext.C5 plan.
13. In Ext.C5 plan, the Commissioner had identified the plaint schedule property as per the documents with the measurement therein as A B C D while taking the northern boundary as 'thodu'. But, admittedly, the survey boundary of plot comprised in survey No.75/1 is the line JH in Ext.C5 plan and the north of line JH is in survey No.77, admittedly belonged to the third party. On the western side, the survey number is shown as 76 and the on the eastern side the survey number is shown as 74 and the southern side of entire property comprised in survey No.75/1 is 75/2. So it is clear from this that boundary of the plot comprised in survey No.75/1 is bounded by different survey numbers.
14. Further, it will be seen from Ext.A1 document the property assigned was described as follows: I`?_5D^f]K .?A^G IyOJm D^]"
.?A^G IyOfJ fI^AaK H?UxO_fa U?AaM^7" xIa 5I" H_\" 6 K`xmeHm 5_I 20 = fDU 10 <, 20 = , 10 <, 37.49 X 18.75 N`xVe17 = fXam 2G{Um 70 fXamXm. The boundaries were shown as 5_]Am *;{H_\Ua" gD^?a" fDAm I`?_5D^f] .Km .?A^Gm IyOfJeD^]" H_\"eI?_E^ym '?gJ^fG IyOfJ IyOm U?Am gD^?a". But in Ext.A7 the description of the property was S.A. No.684 of 1998 14 shown as I`?_5Am D^f]e.Km .?A^Gme IyOfJ eD^]" H_\" Survey No.112/1, Resurvey No.75/1 cent 70. The measurement was shown as 5_I 21 fDU 35, 6 K`xm g5^W. The boundaries were shown as 5_]Am *;{H_\Ua" gD^?a"efDAm h5MayJ^f] H_\" I?_E^yme.?A^Gm IyOfJ IyOmeU?Am .?A^fG IyOfJ IyOm D^]" H_\". So the northern boundary of the entire property as per Ext.A7 is not 'thodu', but it was a paddy field known as .?A^Gm IyOJ^]" H_\". Only in Ext.A1 the northern boundary was shown as 'thodu' .
15. Further, it is seen from Ext.C4 Commissioner's report that 'thodu' is within the survey No.75/1 and the survey boundary as per resurvey record is the line JH. It will be seen from Ext.A1 that Unneeri Nair obtained the property as per document No.2821/1964 but that document was not produced by either of the parties, which alone will show as to what was the northern boundary shown in the document and only with that one can understand whether 'thodu' was part of the property given to Unneeri Nair or it was excluding that the right was given. Further, the evidence of PW1 and on this aspect it is very material. He had admitted that in resurvey No.75/1 except the plaintiff and 1st defendant, none has got any right and he had also admitted that in Ext.C5 plan, the survey line was shown as JH and at points J and H, there were two survey stones. He had further stated that he did not know whether on the north of JH line the property is in S.A. No.684 of 1998 15 survey No.77. On the south, the property is in resurvey No.75/1. He had also admitted that as per document, he had no right beyond the 'Nadavaramba' on the south. He had admitted in the cross examination that he is in possession of more than 17 = cents of land. He had further stated that he is not satisfied with A B C D plot in Ext.C5 but he must get relief in respect of the property covered by the boundaries. He had also admitted as follows: Resurvey No.77 fa boundary line (JH) Hm fD^Gm fDAm UVJm .H_A\o^fD Nx^VAa" %U5^V" '\o. But, at the same time he had further stated "g:yaG_5aybM_fa U5 JH Hm U?Am %\o gD^?^Cme%D_xm gD^?me5]_E^Cm g:yaG_5aybM_fa XmE\". g:yaG_5aybM_fa XmE\"eResurvey No.77 \^Cm .H_Am 5_G_O_GaU XmE\J`fa U?fA %D_xm .?A^fG D^]" IyOm .Kq_Ha I5x" gD^?^Cm .Km fDx_ .]aD_O_GaUq\o.
16. It is also mentioned in Ext.C4 commissioner's report that if measurement is made from survey line JH, then 'Nadavaramba will not be included in the property of the plaintiff. But if the measurement is taken from the 'thodu' then half of the 'Nadavarmba' will be included in the property of the plaintiff. So it is clear from this that there is some dispute regarding the boundaries and which was the property given to the Unneeri Nair, the predecessor in interest of the plaintiff. The case of the defendants was that except 17 = given, the plaintiff has no right in respect of the remaining land.
S.A. No.684 of 1998 16
17. In the decision reported in Arikkulangara Kunhikkeloth Righesh Babu and Another v. Pullanhodan Kunnoth Gopalan Nambiar (Died) by Lrs.and Others 2014(4) KHC 294 it has been held that :
18. In a suit for perpetual and mandatory injunction in order to get a decree, the plaintiff will have to prove their possession. Mere attempt of the plaintiff to prove that the disputed property does not belong to the defendant, will not improve the case of the plaintiffs. The plaintiffs has to win his case on his own strength and not on the weakness of the other side.
19. Further, it has been held in the same decision that:
In a suit for perpetual injunction based on possession, it is necessary for the plaintiffs to prove that the property has well defined physical boundaries and thus it can be identified from the adjoining properties. If there is no such line separating the properties of the plaintiff and the defendant, the proper remedy is to file a suit for fixation of boundary .
20. Further in the decision reported in Vishram alias Prasad Govekar and Others v. Sudesh Govekar (D) by Lrs. and Others 2017 KHC 2209 it has been held that:
When plaintiffs proving his ownership and has nowhere in his pleading admitted joint ownership and joint possession with defendants, if any trespass has been made, plaintiff is entitled to succeed in the suit for permanent injunction and mandatory injunction for demolition as the plaintiff has title to the property.
21. In the decision reported in Anathula Sudhakar v. P.Buchi S.A. No.684 of 1998 17 Reddy (Dead) By LRs and Others 2008 KHC 6249, the Apex Court has held that:
When the plaintiff's title is under doubt, the remedy is to file a suit for declaration and possession with consequential injunction. If his title is not disputed but he is out of possession then the remedy is suit for possession with consequential injunction. If there is mere interference with plaintiff's lawful possession or there is threat of dispossession, suit for injunction simpliciter would be sufficient.
22. It is further held in the same decision that:
Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
23. It is further held in the same decision that;
Where as a suit for prohibitory injunction simpliciter relating to immovable property is concerned with possession only, in the absence of necessary pleadings and appropriate issue regarding title, decision would be given with reference to finding on possession and not on the question of title.
24. In the decision reported in Chacko Joseph v. Varghese Markose 1957 KLT 485 it has been held that:
Where on construction of sale deed, it is clear that intention of the parties was to sell a parcel of land within well defined boundaries, any S.A. No.684 of 1998 18 erroneous statement regarding its extent to be rejected as falsa demonstratio. This has been so held relying on the decision reported in Kondal Rao v. Dhanakoti AIR 1938 Madras 81 and also in Delli Gramani v.Ramachandran AIR 1953 Mad.769. It has been further held that:
In the last of these cases it was ruled that where, on a construction of the sale deed, it is clear that the intention of the parties was to sell a parcel of land within well defined boundaries any erroneous statement regarding its extent should be rejected as falsa demonstratio. This rule has to prevail in the present case also because it is absolutely clear from the statement of Ext.D that the parties were dealing only with the property enclosed by the rubble walls mentioned as its boundaries and as there has been no express or implied warranty that it is the real extent that is as stated in the document.
25. In the decision reported in Venkiteswara Kammathi Balakrishna Kammathi v. Anantha Pai Ganesha Pai and Others 1954 KLT 87, it has been held that rule is that in a case of dispute between boundaries and extent, the former shall prevail has been well established in ILR 41 Cal. 493 (PC), AIR 1939 Rang.396 and AIR 1952 Pat.146, the boundaries in this case are clear and definite. Items 1 and 2 being held under lease from Devaswom it admitted and observed by the learned Judge that the item in question is included in the mortgage sued on there was positive evidence adduced on the side of the defendants that the item is also taken in by the boundaries shown in the plaint, decree and certificate of sale. Applying the rule mentioned above and accepting the evidence tendered, the conclusion reached by the court below that the properties are covered by the boundaries for which the plaintiff is entitled to get S.A. No.684 of 1998 19 the relief is affirmed.
26. In the decision reported in Pattathari Kuttiraman v. Puthukkudi Narayanan (2010 (3) KHC 136), it has been held that:
"In a suit for injunction what is relevant is whether plaintiff was in possession of suit property on the date of suit. Reference to title is required only if it is necessary to decide question of possession. Identification of property is compulsory. Extent is not relevant, if property is properly identified by boundaries".
27. In the decision reported in Siddu Venkappa Devadiga v. Smt.Raangu S. Devadigaand others (AIR 1977 SC 890), it has been held that:
"It is well settled that the decision of a case cannot be based on grounds outside the plea of the parties, and that it is the case pleaded which has to be found".
28. In the decision reported in Bachhaj Nahar v. Nilima Mandal and another (2009 (4) MLJ 900 (SC)=AIR 2009 SC 1103, it has been held that:
"A case not specifically pleaded can be considered by the Court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the Court is fully satisfied that the pleadings and issues S.A. No.684 of 1998 20 generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the Court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad, AIR1966 SC 735 and Ram Sarup Gupta, AIR 1987 SC 1242, and several other decisions of the Supreme Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the Court can consider such a case not specifically pleaded, only when one of the parties raised the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the Court cannot obviously make out such a case not pleaded, suo motu".
29. In the decision reported Smt. N.Savithramma and others v. Dr. B.N. Sheshadri (ILR 1999 KAR 4336), it has been held that :
"The plaintiff claiming 85' x 70' even though his vendor appears to have had tie only over 40" x 65" on the strength of the boundaries stated in the Sale Deeds. Trial Court and the First Appellate Court decreed the suit of the Plaintiff. Defendant challenged them in Second Appeal. Main question that arose for decision was "whether under the guise of the Dictum that S.A. No.684 of 1998 21 "Boundaries shall prevail over the Measurements", the plaintiff is entitled to claim larger extent than what is sold. It has been held that prima facie, the theory shall not be used to confer undue advantage to the plaintiff for example, if the land purchased under a Deed is only 100 square feet, can 1000 square feet be claimed on the ground that boundaries given in the Sale Deed Cover an area of 1000 square feet? Clearly, the claim that boundaries shall prevail should not be mis interpreted to confer a larger area of entire 1000 square feet as against the entitlement of area of 100 square feet. The Theory should be applied only to make a "MARGINAL ADJUSTMENTS" and not to the extent of giving undue advantage of the person who claims to have purchased Under Boundaries enclosing a Larger-Extent"
30. In the decision reported in Narasimha Shastry v. Mangesha Devaru ( ILR 1988 KAR 554), it has been held that:
"The actual extent of the land was not clear, in such event, the boundaries shall be directed to be prevailed".
31. In the decision reported in M/s. Roy and Co. and another v. Smt. Nani Bala Dey and others (AIR 1979 Cal. 50), it has been held that:
"In a case of conflict between the area and the boundary, the description of the boundary will prevail. Between the area and the boundaries was not considered and therefore, the appellants argument in that regard was not accepted".
32. In the decision reported in Chitturi Perraju and another v. S.A. No.684 of 1998 22 Yednapudi Venkamma and others (AIR 1971 A.P. 74) it has been held that:
"It was a definite case of the boundaries given with precision. Boundaries prevail even if there is some discrepancy about actual extent of land. The area "some" is important to be noted. That was a case wherein it is found it is not anybodies case that there is a difficulty about the boundaries. It is well settled that even if there is some discrepancy about the actual measurement of the land, the boundaries shall prevail. It is also found that the reference to the plan annexed to decree".
33. In the decision reported in M. Rajagopal Mudaliar v. K.R. Venkataraman by power agent K.G. Ramanathan (2002 (1) MLJ
529), it has been held that:
"The suit for declaration of title to suit property where the sale deed giving out measurement of land as 32 feet by 75 feet but giving boundaries which include a larger area, measurement in sale deed alone will be considered".
34. In the decision reported in Dina Malar v. Tiruchirapalli Municipality (1984 (2) MLJ 306, it has been held that:
"Only in the absence of definite materials to show the actual extent intended to be sold the boundaries should outweigh the doubtful extent mentioned in the document. If the recitals in the document and the circumstances of the case show that a lesser extent only was conveyed than the area covered by the boundaries and there is clear evidence as to the intention of the parties with S.A. No.684 of 1998 23 reference to the extent conveyed, then the extent should prevail over the boundaries".
35. In the decision reported in Church of S.I.T.A v. Rajja Ambrose (1978 (2) MLJ 620), it has been held that:
"Where the deed sets out the extent and measurements correctly there can be no difficulty in determining the subject matter of the grant. But where no measurements are given or the extent mentioned in the deed is either vague or is only a rough and ready approximation, one has to look to other indications in the deed in order to fix the identity of the property which is the subject of the grant. If the deed in question sets out the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and they will conclude not only the exact positioning of the property conveyed but also its true extent".
36. In the decision reported in Kumaran Krishnan v. Ulahannan Mathai (1957 KLT 42), it has been held that:
"The evidence supplied by boundaries, extent, survey numbers and lekhoms forms the determining factors when the identity of the property is put in issue. If all these factors harmonize 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 rest which is most unlikely S.A. No.684 of 1998 24 to be vitiated by error".
37. In the decision reported in Ibrahim Koyakutty v. Varghese Varghese (1951 KLT 117), it has been that:
"In the absence of circumstances indicating that application of the boundaries in determining the extent of the land that passed under the conveyance will lead to an error, usually in cases of conflict between the area, survey number and the boundaries mentioned in the document the boundaries predominate and the rest is considered only as false or erroneous description".
38. In the decision reported in Krishnamurthi Iyer v. Janaki Amma (1957 KLT 886), it has been held that:
"The usual rule is 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. This is not an inflexible or infallible rule. When from the proved circumstances, it is clear that the intention of the parties was only to convey the extent mentioned in the document, even though the boundaries would take in larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail".
39. In the decision reported in Savithri Ammal v. Padmavathi Amma (1990 (1) KLT 187), it has been 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 S.A. No.684 of 1998 25 clearer and more specific has to be preferred. In some cases it may be the boundary. In some other cases it may be the extent and in yet other cases it may be the side measurements. There is no invariable rule in this regard. The usual rule is 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. This is not an inflexible rule. When from the proved circumstances it is clear that the intention of the parties was only to convey the extent mentioned in the document, even though the boundaries would take in a larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail".
40. So it is clear from the above decisions that when there is dispute regarding the extent and boundaries, normally the boundary will prevail. But in a case where the extent, measurement, survey number, boundaries etc were given and from the recitals in the document if it is clear what is sold is only the extent of the property mentioned, then that extent will prevail and not the boundaries. Further in a case where there is a dispute regarding the title and boundaries, then mere suit for injunction simplicitor will not be maintainable.
41. In this case, the case of the plaintiff was that he obtained the plaint schedule property as per Exts.A1 and A2 documents having an extent of 17 = cents. He had no case in the plaint that though S.A. No.684 of 1998 26 the extent was mentioned as 17 = cents, he is having more extent and he is in possession of the property within the boundaries. In Exts.A1 and A2 documents, apart from the boundaries and extent, middle measurement of the property was also mentioned and calculation of the measurement and extent tallies. Further there is no evidence adduced on the side of the parties to prove the intention of the parties as to what is the extent to be conveyed as well. Further the prior document by which Unni Nair obtained 17 = cents, namely the document of 1964 mentioned in Ext.A1, was not produced which alone will go to show that the boundaries mentioned in the document so as to infer as to whether northern boundary was shown as thodu or property of another person as mentioned in Ext.A7 document by which the predecessor in interest of the defendants had obtained the property. If really the northern boundary was shown as property of another instead of thodu in that document, then northern boundary shown as thodu in the subsequent document will have no relevance and the attempt is only to push down the property to get more extent than the extent actually conveyed. Further in the plaint, the plaintiff had no case that though the extent was shown as 17 = cents, he is in possession of more area and he is in possession of the land surrounded by the boundaries mentioned in the document. Further S.A. No.684 of 1998 27 the defendants have a case that the northern boundary is not thodu, but it is a property of another person in different survey number and thodu was part of the property given to the predecessor of the plaintiff. If that be the case, the thodu mentioned in Exts.A1 and A2 cannot be taken as the northern boundary to start measurement of the property from the thodu. It can be inferable only from the document by which the predecessor in interest of the plaintiff had got 17 = cents land. Further when there is dispute regarding all these aspects, it is clear from the above decisions that the intention of the parties as to the extent of the property that has been conveyed will prevail over other aspects. In the absence of such evidence only, the rule of boundary will prevail in the case of conflict between area, extent, measurement and survey number will apply. No such evidence was adduced in this case. Since the identity of the property, description of the property, boundaries etc were disputed by the defendants, then all those things cannot be settled in a simple suit for injunction alone as has been done in this case. So the appellate court was perfectly justified in coming to the conclusion that without a prayer for fixation of boundary, the suit is not maintainable cannot be said to be erroneous. But at the same time, considering the fact that the suit has been filed by the parties in the year 1991 and fighting for getting their right established since long S.A. No.684 of 1998 28 time, instead of driving the parties to go for another suit, this Court feels that an opportunity can be given to the appellant to amend the plaint for incorporating appropriate reliefs and also making necessary amendment in the pleadings as to how he derives title to the property and giving opportunity to the parties to produce prior title document of the predecessor in interest of the plaintiff and then identify the property on the basis of the descriptions given in that document and also giving evidence regarding the intention of the parties when the property was assigned etc and then dispose of the case in accordance law. For that purpose the decree and judgment passed by the courts below have to be set aside and the matter has to be remitted to the court below for fresh disposal in accordance with law. So the second appeal is allowed and the decree and judgment passed by the appellate court dismissing the suit is set aside and the matter is remitted to the trial court for fresh disposal in accordance with law. The plaintiff is given liberty to file an application for amendment of pleadings and also seeking appropriate relief and produce further documents as directed in the judgment and then identify the property and giving opportunity to the defendants also to file additional written statement on the basis of the amendment application filed, if it is allowed and adduce further evidence, if any required by both parties and then decide the case afresh in accordance with law. Parties are S.A. No.684 of 1998 29 directed to appear before the court below on 23.10.2017. Considering the fact that the suit is of the year 1991 the trial court is directed to expedite the disposal of the case as expeditiously as possible, at any rate, within nine months from the date of receipt of a copy of this judgment or appearance of the parties, whichever is later.
Registry is directed to communicate a copy of this judgment to the concerned court immediately and send back the records to the court below so that the trial court can proceed with the case without delay.
Sd/-
K. RAMAKRISHNAN, JUDGE.
/true copy/ P.S to Judge ss/rmm/cl