The decrees in O.S.Nos.97 of 1995 and 71 of 1996 on the file of the Sub Court, Kottarakkara are challenged in these appeals. 2. The plaintiff in O.S.No.97 of 1995 claims title to the property described in the plaint A schedule, he having purchased it by sale deed No.5838 of 1966. The first defendant purchased the adjoining eastern property in 1987. There was a barbed fence separating the two properties. The first defendant allegedly shifted the fence to the West annexing a portion of the plaint A schedule property to his eastern property. This trespassed area is described in the plaint B schedule. It is further alleged that the first defendant committed mischief by destroying the plantains and teak saplings in the plaint A schedule property causing the plaintiff a loss of Rs.35,000/-. The plaintiff prayed for declaration of his title to the plaint A schedule property, recovery of possession of plaint B schedule property, fixation of boundary, damages and perpetual injunction restraining trespass. The first defendant filed written statement denying trespass and all the other allegations. He along with his wife filed O.S.No.71 of 1996 against the plaintiff in O.S.No.97 of 1995. The only allegation in their plaint is that the defendant, who is the plaintiff in O.S.No.97 of 1995, attempted to trespass into their property described in the schedule to the plaint.
They prayed for declaration of their title and possession. On the basis of the commission report that a certain extent of the property in the possession of the defendant is the property comprised in the survey number of the properties covered by the title deed of the plaintiffs in O.S.No.71 of 1996, they prayed for its recovery also.
3. The learned Sub Judge dismissed O.S.No.97 of 1995 and decreed O.S.No.71 of 1996 declaring the plaintiffs title to the plaint schedule property and allowing recovery of 1.870 cents of land. In A.S.No.365 of 2007 and A.S.No.366 of 2007 the decrees in O.S.No.97 of 1995 and O.S.No.71 of 1996 respectively are challenged.
4. The property of the plaintiff in O.S.No.97 of 1995 is described in the plaint A schedule as follows:
17 ½ cents (including the half cent left out for the bye-lane at the West) out of the 18 cents comprised in survey number 379/10A/2 and the excess extent within the above boundaries.
The plaint B schedule property which is sought to be recovered is described as follows:
'About 300 sq.m.'
5. The property claimed by the plaintiffs in O.S.No.71 of 1996 is described in the plaint schedule as follows:
31 cents comprised in Survey No.379/ 9A and B.
6. To identify the properties of both parties the trial court appointed an advocate and a surveyor as joint commissioners. Ext C3 is the plan prepared by the surveyor. Ext C4 is the report and Ext C5 the mahazar prepared by the Advocate Commissioner.
7. Both parties did not file not even an objection to the report and the plan of the Commissioners, let alone an application to set aside them. But the trial court allowed examination of the commissioner and the surveyor. Their evidence requires to be considered. A copy of the survey plan obtained from the Central Survey Office was marked Ext A15 in the trial court. But the Advocate Commissioner, who was examined as PW2, stated that it is not on the basis of Ext A15 plan the survey was conducted. According to PW3 surveyor the properties were measured on the basis of an old survey plan. That survey plan is not made available to the court. There is no guarantee for the authenticity of the plan on the basis of which the properties were measured. There is no evidence that a plan other than Ext A15 is available in the survey office. In Ext A15 plan issued from the Central Survey Office, Thiruvananthapuram it is written 'copied 1969'. The endorsement shows that the relevant survey plans were not authenticated by the officers concerned and there was no means to ascertain their correctness as the original plans were not available. For these two reasons alone Ext C3 plan has to be rejected. There are other reasons also.
8. The description of the property in Ext A1 sale deed of the plaintiff in O.S.No.97 of 1995 shows that the extent of the property was 18 cents and the survey number is 379/10A/2 and half a cent was left out along its western boundary for a pathway and the remaining extent of 17.500 cents was transferred to him. PW3 has admitted that the strip of the land set apart for the way also is comprised in the same survey sub division number. But that property was not measured. It also affects the correctness of Ext C3 plan. It was brought out in the cross-examination of PW3 that the properties were measured on the basis of possession, which is another reason for holding that the measurement is not proper. The commission report or the plan is not acceptable to establish the title of the parties.
9. Ordinarily, when the plan prepared by the commissioner is not found acceptable, it is proper for the court to remand the case to enable the party concerned to take out another commission for measurement. But this is not possible in this case for the reason that there is no evidence that a plan other than Ext A15 is available and for other reasons which I shall presently discuss.
10. In Ext A1 title deed of the plaintiff in O.S.No.97 of 1995 the property is described as 17.500 cents and 'virivu'. 'Virivu' is the extent of the property in the possession of a party in excess of the extent mentioned his title deed. Exts B1 to B5 are the title deeds of the plaintiffs in O.S.No.71 of 1996. They purchased the property adjoining the property of the plaintiff in O.S.No.97 of 1995 by Ext B1. The extent of the property mentioned in Ext B1 is 10.504 cents, in Ext B2 is 6.625 cents, in Ext B3 is 4 cents and in Exts B4 and B5 is 5 cents each. The total extent is 31.129 cents. But in each of these title deeds it is mentioned that the properties have 'virivu'. The side measurements of the properties are not mentioned in the title deeds of both parties. (In Exts B3 and B5 some measurements are given; but those are not of the property conveyed by the deeds).
11. It is an admitted fact that neither the properties of the plaintiff in O.S.No.97 of 1995 nor of the plaintiffs in O.S.No.71 of 1996 were measured when the transfers were effected. In fact, the first plaintiff in O.S.No.91 of 1996, who was examined as DW1, admitted that in his title deeds the properties were described on the basis of the description in the prior title deeds. The conclusion is that both parties entered into the transactions without ascertaining the survey number or the actual extent of the properties. It means that the actual extent of the properties covered by the title deeds of both parties may be less or more than the extent mentioned in the deeds. Existence of 'virivu' is mentioned in every title deed indiscriminately. It is impossible to ascertain the survey number or the extent of the properties on the basis of the descriptions in the title deeds of both parties. Even if a correct survey plan is available it will be of no use to ascertain the identity of the properties covered by the title deeds. This is yet another reason not to remand the case directing measurement of the properties again.
12. In O.S.No.97 of 1995 the plaintiff cannot be granted a declaration of his title to the plaint A schedule property because a portion of the property is seen to have been comprised in another survey number and the extent is more than the one mentioned in his title deed.
13. The extent of the property is shown as 31 cents in the plaint schedule in O.S.No.71 of 1996. In fact, the plaintiffs are in possession of 29 cents only. In paragraph 19 of their plaint they have stated: “If the properties are surveyed with their present lie, plaint scheduled property is sure to be found to be less in area than conveyed by documents and property of defendant is sure to be found more in extent”. So they were sure that when they purchased the property, the actual extent of the property was less than the extent mentioned in their title deeds and they have no case that subsequent to it the plaintiff in O.S.No.97 of 1995 trespassed into their property. They are also not entitled to the declaration prayed for. It is also pertinent to note that the property sought to be recovered by them is not even described in a schedule in the plaint.
14. Even if Ext C3 plan cannot be relied on to establish the title of the parties, it can be accepted to prove the actual extent of the properties in their possession.
15. So far as the plaintiff in O.S.No.97 of 1995 is concerned he is in possession of more extent than what is shown in his Ext A1 title deed, the excess extent being 1.870 cents. A fence stood along the eastern boundary of this 1.870 cents. This line is shown as KLMNOE in Ext C3 plan.
16. In the witness box the first plaintiff in O.S.No.71 of 1996 admitted that when he bought the property adjoining the property of the other party a fence existed separating the properties. According to him, there has been no change in its position. This is the line marked KLMNOE in Ext C3 plan. He accepted it as the boundary between their properties from 1987 to 2002, the year in which the commissioner filed the report in this case. He has no case either in his plaint or in his evidence that the plaintiff in O.S.No.97 of 1995 trespassed into his property before or after the filing of the suit. He has prayed for recovery of possession of 1.870 cents from the other party merely because the latter was found to be in possession of that extent comprised in Survey No.379/10 A/2, which is the survey number of the properties covered by his title deeds. He is not entitled to recover possession of that property so long as he does not prove that it was part of the property he and the second plaintiff purchased under Ext B1 and the other party reduced into his possession later.
17. If the KLMNOE line of the fence is taken as the boundary, no prejudice or injustice will be caused to both parties.
18. I hold that neither the plaintiff in O.S.No.97 of 1995, nor the plaintiffs in O.S.No.71 of 1996 are entitled to the declaration of title and recovery of possession prayed for. The learned Sub Judge went wrong in declaring the title of the plaintiffs in O.S.No.71 of 1996.
19. The plaintiff in O.S.No.97 of 1995 has prayed for damages also on the allegation that the defendant in that suit (the first plaintiff in O.S.No.71 of 1996) committed mischief in his property and he sustained a loss of Rs.35,000/-. In his plaint the date on which the cause of action arose in respect of this relief is not mentioned. But in the witness box he (PW1) said that the incident took place in 1987. The suit was instituted only in 1995. Even if it is taken for granted that the allegation is true, his prayer is time barred.
In the result, both appeals are allowed and the judgment and the decrees of the trial court are set aside. O.S.No.97 of 1995 is decreed in part. The line KLMNOE shown in Ext C3 plan is declared the boundary between the plaint A schedule property in that suit and the plaint schedule property in O.S.No.71 of 1996. Ext C3 plan is made part of the decree. O.S.No.71 of 1996 is dismissed. The parties will bear their costs.
cms Sd/-
K.ABRAHAM MATHEW, JUDGE /True copy/ P.S.to Judge