MANU/KE/3452/2023

Equivalent/Neutral Citation: 2023/KER/74902, 2023 (7) KHC 418

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 420 of 2007
Decided On: 28.11.2023
Elambilan Nani Amma and Ors. Vs. Mulavana Antony and Ors.
Hon'ble Judges/Coram:
K. Babu, J.
Counsels:
For Appellant/Petitioner/Plaintiff: K.V. Sohan and Sreeja Sohan K., Advs.
For Respondents/Defendant: Jayanandan Madayi Puthiyaveettil and K.V. Pavithran, Advs.
JUDGMENT
K. Babu, J.
1. This Regular Second Appeal arises from the judgment and decree dated 28.7.2006 in
A.S. No. 71 of 2003 passed by the Additional Subordinate Judge's Court, Thalassery.
The Appeal Suit arose from the decree and judgment of the Munsiff Court,
Kuthuparamba, in O.S. No. 141 of 1997.
2 . The defendants are the appellants. During the course of the proceedings, the
respondent/plaintiff died. His legal representatives were impleaded as additional
respondent Nos. 2 to 9.
3 . The plaintiff instituted the original suit for declaration of title, fixation of boundary
and consequential injunction with respect to the plaint schedule property. The plaint
schedule property is 15.89 cents of land in Re-Survey No. 91/1 (Old Survey No. 25) of
Payam amsom. The plaint schedule property originally belonged to late Krishnan
Nambiar. After his lifetime, his wife Parvathi Amma and defendant Nos. 1 to 3, his
children and one Velayudhan Nambiar succeeded to the property. A small strip of land
on the northern boundary of the property was utilised for the construction of a road.
Originally, Krishnan Nambiar had possessed 75 cents of property. Seven cents of land
was surrendered for the construction of the northern road. He retained the remaining 68
cents in his possession. The legal representatives of Krishnan Nambiar executed
partition deed No. 3469/1979, by which the property was partitioned among them.
Parvathi Amma, wife of Krishnan Nambiar, received cash in lieu of her share. Thus, the
entire 68 cents were shared equally among the other four persons, each obtaining 17
cents. Velayudhan Nambiar and defendant Nos. 2 and 3 took their share in single plots
measuring 17 cents each. Defendant No. 1 took her share in two plots: item No. 1,
containing 2½ cents, and item No. 2, measuring 14½ cents.
4 . Even prior to the partition of the property, the plaintiff had entered into an
understanding with Sri. Velayudhan Nambiar to buy his entire share of the property.
After the partition, the plaintiff purchased the entire 17 cents from Velayudhan Nambiar.
Item No. 4 in the partition deed was allotted to the share of Velayudhan Nambar.
Defendant No. 3 had transferred his share in favour of defendant No. 4. After the
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partition, shallow trenches were dug to separate the shares. Defendant No. 4 destroyed
the trench constructed as the boundary separating the properties of defendant Nos. 2
and 3. On 28.2.1998 defendant Nos. 1 and 4 to 6 commenced construction of a building
on the property. They attempted to meddle with the boundary separating the plaint
schedule property from the property of defendant Nos. 1 and 3 to 6. The plaintiff
intervened, but the defendants destroyed the boundaries. The plaintiff, therefore,
instituted the suit initially for fixation of boundary and permanent prohibitory
injunction. When the Commissioner submitted Ext.C8 plan, the plaintiff incorporated
amendments in the plaint and prayed for declaring his title over the property.
5. The defendants resisted the suit. They pleaded as follows:-
The identity of the plaint schedule property is not clear from the pleading. The
allegation that shallow trenches were dug to separate the property allotted to
the sharers soon after the partition is incorrect. The averment that the
defendants meddled with the boundary marks is baseless. The defendants have
no intention to trespass on the plaintiff's property. The construction of the
building was done on the property of the defendants.
6. The trial Court framed the following issues:-
1. What is the correct identity of the plaint schedule property?
2. Whether the plaintiff is entitled to an injunction as prayed for?
3. Whether the plaintiff is entitled to a decree for fixation of boundary?
4. Whether there is any cause of action for the suit?
5. Whether the trespass alleged is true?
6. Whether the defendants are entitled to compensatory costs?
7. Relief and costs?
7. On the side of the plaintiff PW1 was examined, and Exts.A1 to A3(g) were marked.
DW1 was examined, and Exts.B1 to B3 were marked on the side of the defendants.
Exts.C1 to C8 were marked as Court Exhibits.
8 . The trial Court decreed the suit declaring plaintiffs' title over plots A, A1 to A12 in
Ext.C8 plan and directed fixation of boundary in accordance with the measurements in
Ext.C8 plan. The defendants were also restrained by an order of permanent prohibitory
injunction from trespassing upon the plaint property.
9. The defendants challenged the decree and judgment passed by the trial Court in A.S.
No. 71 of 2003. The First Appellate Court confirmed the judgment and decree passed by
the trial Court.
The concurrent findings of the trial Court and the First Appellate Court are under
challenge in this Regular Second Appeal filed under Section 100 of the CPC.
10. After hearing both sides, this Court re-formulated the substantial questions of law
as follows:-
(1) Has not the Court below misconstrued the evidence when it declared that

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 the plaintiff acquired title over A and A1 to A12 plots in Ext.C8 plan?
(3) Have the Courts below drawn necessary inferences and presumptions based
on the pleadings and evidence?
(4) When the demarcation of boundaries of immovable property is based on the
title deed, and it is found that the actual enjoyment boundary is within the
permissible error under Rule 56 of the Kerala Survey and Boundary Rules,
1964, whether the court will be justified in refixing the boundary.
11. The case of the plaintiff is that he has acquired title and possession over 15.89
cents of land identified as plots A and A1 to A12 in Ext.C8 plan. The further case of the
plaintiff is that at the time of the partition of the property, after the death of Krishnan
Nambiar, the properties acquired by the different sharers were separated by shallow
trenches, and the said boundaries were in existence when the plaintiff purchased the
property from Velayudhan Nambiar, one of the legal representatives of Krishnan
Nambiar. The plaintiff further pleaded that at the time of construction of the building on
the property of the defendants, they deliberately destroyed the boundary separating
their property with the plaint schedule property.
12. The case of the defendants is that the plaintiff has not obtained possession of the
entire plaint schedule property as pleaded and his attempt is to acquire a portion of the
property in the possession of the defendants.
13. The plaintiff gave evidence as PW1. He deposed that at the time of partition, the
property was measured and divided into five plots, and shallow trenches having a depth
of 2 feet were dug to separate the shares. PW1 further stated that some boundaries
were destroyed by the defendants. DW1/defendant No. 3 gave evidence in support of
the case of the defendants. He would state that the total extent of the property covered
by the partition deed was 68 cents, and 4 sharers got 17 cents each. He would further
state that the properties were not measured at the time of partition. DW1 would further
depose that there were only 68 cents of land after the widening of the road. In Exts.C1
to C8 Commission Reports, the Commissioner reported that even now, the extent of the
entire property is between 68-70 cents. Ext.A1 title deed shows that all the allottees
except defendant No. 1 took their shares in a single plot. The property allotted to
defendant No. 1 was in two plots, 2½ cents in one plot and 14½ cents in another.
Ext.C8 plan goes to show that plots B, B1 to B10 in Ext.C8 plan are the items given to
defendant No. 1. Plots B7 and B8 together constitute 2½ cents and plots B1 to B6, B9
and B10 together constitute 14½ cents. Ext.A1 would further show that the property
allotted to Velayudhan Nambiar (the predecessor of the plaintiff) was on the west of the
property allotted to defendant No. 1. Ext.C8 plan would show that the portion of item
No. 2 in Ext.A1 was surrendered for the construction of the road. There is no dispute
regarding plot 'C' identified as Nandini's property. Plots D and D1 allotted in favour of
Raghavan together constitute 17 cents. The case of the plaintiff is that plot D forms a
portion of his property, and plots F1 and D, the property of Raghavan, together
constitute 17 cents. According to the plaintiff, a 'Tak kila' is the southern boundary of
item No. 5, on the south of F and F1 plots, which is tallying with the boundaries
mentioned in Ext.A1.
14. The trial Court found that the defendants cannot claim plot E, as the said property
was held by the plaintiff even prior to the partition. While giving evidence, DW1 put up
a case that the plaintiff only possesses plots A, A3 & E2. If that be the case, the plaintiff
obtained only around 12 cents of property. Ext.C8 report and plan would show that the

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extent of the property is between 68 and 71 cents. The trial Court rightly noted that the
defendants have no case that they possessed property on the strength of any document
other than Ext.A1 partition deed. Therefore, the trial Court disbelieved the version of
DW1.
15. The learned counsel for the appellants would contend that the shortage in extent of
the property in the possession of the plaintiff is within the allowable limits of error as
provided under Rule 56 of the Kerala Survey & Boundaries Rules, 1964 (for short 'the
Rules'). The learned counsel heavily relied on Rule 56 of the Rules to contend that the
shortage in extent is only 0.31 cents, which is the difference between the plots A7 to
A12 (2.11 cents) and E2 to E4 (1.80 cents), which is less than the permissible extent of
0.34 cents being 2% of the registered extent of 17 cents.
16. Rule 56 of the Rules reads thus:-
"56. Limits of error in the case of recorded areas of fields or sub-divisions.-In
the case of recorded areas of fields or sub-divisions, the allowable limits of
error shall be as follows:-
(a) in the case of survey fields or sub-divisions in the Corporation or
Municipal areas, One per cent of the registered extent subject to a
minimum of 10 square meters;
(b) in other cases, two per cent of the registered extent subject to a
minimum of 20 square meters."
17. The learned counsel submitted that in the case of recorded areas of fields or sub-
divisions, the allowable limits of error shall be 2% of the registered extent subject to a
minimum of 20 square meters in areas other than Corporation or Municipal areas. Rule
56 of the Rules was notified in exercise of the powers under Section 22 of the Kerala
Survey & Boundaries Act (for short 'the Act'). The provisions of the Kerala Survey &
Boundaries Act and the Rules made thereunder can only be made applicable to the
survey of lands as provided in Chapter II of the Act. The survey conducted in this case
is not in accordance with the survey process as provided in Chapter II of the Act. It is
also trite that the decisions of the survey authorities under Chapter II of the Act will not
affect the right and title of the property acquired by a party as per a valid title deed. The
right and title to property have to be determined not with reference to the survey
demarcation but based on other cogent materials, the primary of which is the title deed.
The record of the survey result shall be conclusive proof that the boundaries were
determined and recorded therein correctly. (Vide: Cheriyanad Grama Panchayat v. The
State of Kerala and Ors. (MANU/KE/4733/2019 : 2019 (5) KHC 699, Venugopalan Nair
v. Saraswathy Amma (MANU/KE/1056/2013 : 2013 (4) KLT 717), Karthyayani v.
Balakrishnan [MANU/KE/0271/2014 : 2014 (2) Suppl. 67 (Ker.)], Ibrahim v.
Saythumuhammed (MANU/KE/1083/2013 : 2013 (4) KLT 435) and Achama Alexander
(Died. Lrs impleaded) and Others v. Assistant Director, Survey and Land Records and
Others (MANU/KE/3799/2021 : 2021:KER:49636 : 2022 (2) KHC 131).
18. In the present case, the dispute is not a 'boundary dispute' as provided in Chapter
II of the Act, and therefore, the theory of 'error' deduced from Rule 56 of the Rules has
no application when the right of a party is adjudicated based on title deeds and
possession.
19. Yet another contention of the appellants is that a strip of land scheduled in the
plaint is in the possession of the defendants, for which the plaintiff should have sought
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recovery of possession to succeed. Going by the pleadings and the unchallenged Ext.C8
report and plan, it is evident that the dispute only relates to a narrow strip of land lying
on the boundary of the plaint schedule property. It is to be presumed that, that strip of
land is in the possession of the plaintiff and that the boundary of his property extends
up to the line noted by the Commissioner in Ext.C8 plan. This view is fortified by the
decision of the Apex Court in Achuthan Nair v. Narayanan Nair (MANU/SC/0509/1987 :
AIR 1987 SC 2187), and the decisions of this Court in Kathirummal Chirammal
Karyhyayani v. Kunnool Balakrishnan and Others (MANU/KE/0271/2014 : 2014(2) KHC
108), and Susi v. Sujathan and Another (MANU/KE/3765/2021 : 2021:KER:42869 :
2022 (1) KHC 671).
20. Both the trial Court and the First Appellate Court held that the plaintiff proved his
title over the property noted as plots A & A1 to A12. The defendants failed to establish
any right over the disputed land. The trial Court has drawn necessary inferences and
presumptions based on the pleadings and evidence. I have not come across any
misconstruction of evidence by the courts below. The substantial questions of law are
answered accordingly against the appellants.
The Regular Second Appeal stands dismissed.
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