SUMATHY AMMA Vs. SANKARA PILLAI

JUDGEMENT

(1.) Plaintiffs in O.S. 165 of 1982 of the Sub Court, Pathanamthitta are the appellants. Plaintiffs filed the snit for directing the defendants to set up boundary wall on the northern side of their (defendants') property and for recovery of the plaint schedule property which has been trespassed upon by them. Plaintiffs have claimed Rs. 5000/- as mesne profits per annum. The learned Sub Judge dismissed the suit finding that the plaintiffs are not entitled to any reliefs claimed in the plaint.

(2.) 1st plaintiff and her husband Gopala Pillai purchased Kannimelazhikam Rubber Estate as per documents prior to 1945 and they made their son (2nd plaintiff) as a co-owner as per settlement deed. Total extent of the property has been found on actual measurements to be 19 acres 50 cents though in the documents it has been mentioned as 23 acres 80 cents. It is the case of the plaintiffs that in 1976, the estate was measured and divided into four equal plots as A, B, C and D and the southernmost plot was sold to the 1st defendant's younger brother Gopinathan Nair and the adjoining northern plot to the 1st defendant by means of two registered sale deeds (Exts. A1 and A2) with plans appended thereto. Ext. A2 relates to plot A and Ext. A1 relates to plot B in the plans. Ext. B1 is the original of Ext. A1. According to the plaintiffs, Plots A and B comprising an extent of 9 acres 75 cents were thus sold and the remaining northern portion of equal extent remained in their possession. When 1st plaintiff wanted to put up barbed wire fence on the southern boundary of the plaintiffs property in June 1981 and when pillars were planted, the 3rd defendant removed the same and obstructed the erection of any demarcating boundary between AB and CD plots contending that they can do so only on the northern boundary of the property of the defendants having an extent of 11 acres 90 cents. 1st plaintiff was constrained to construct fence on the PQK line shown in Ext. C4 plan. Defendants have no manner of right over the plaint schedule property which is the area south of the PQK line and north of RB line in Ext. C4 plan. Defendants contended that the plans appended to Exts. A1 and A2 are not correctly prepared, that the extent of the property in each survey sub-division has been clearly mentioned in the sale deeds and hence plaintiffs cannot retract from it.

(3.) The crucial question to be decided is as to whether the defendants can claim the extent of property mentioned in the schedules to Exts. A1 and A2 or whether they are entitled only to one half of the actual extent of property found on actual measurement and mentioned specifically in the documents. According to the plaintiffs, defendants can only claim rights over 9.75 acres which is just half of 19.50 acres. Defendants contended that in Exts. A1 and A2 specific survey sub-divisions are mentioned with respective extent and as plaintiffs have conveyed the land as per the said documents, they cannot canvass a contention contrary to the recitals in it. In other words, defendants contended that as per Exts. A2 and A1 sale deeds, plots A and B respectively were conveyed and as per each sale deed the respective defendants are entitled to 5 acres 95 cents each and the plaintiffs cannot claim any portion of the property which has been covered by the aforesaid documents.