UNNIAPPAN Vs. RAHAMATH

JUDGEMENT

(1.) Aggrieved by the decree and judgment in A.S.No.196 of 2004 of the District Court, Palakkad, dated 26.6.2009, and the decree and judgment in O.S.No.257 of 1993 on the file of the Principal Sub Court, Palakkad, dated 5.4.2004, the defendants came up with this second appeal.

(2.) The suit was originally filed by the plaintiffs for recovery of encroached portion of property. There are two schedules to the plaint, 'A' and 'B' schedule. 'A' schedule is described as one acre property out of a large extent of 3 acres 18 cents without specifying its location. Plaint 'B' schedule is the alleged encroached area having an extent of 18 cents. A survey commissioner was deputed in that suit, who in turn, visited the property and prepared Ext.C2 mahazar and Ext.C2(a) plan, wherein it was reported that some more extent of land was found to be in possession of the defendants. So, the plaint was subsequently amended incorporating an additional schedule 'C' schedule having an extent of 29 cents. By accepting the commissioner's report, the trial court decreed the suit. In appeal, it was confirmed. The challenge in the second appeal is against the concurrent finding of the trial court as well as the first appellate court and the decree passed thereon.

(3.) It is not in dispute that both the parties derived their title from a common ancestor who is having an extent of 3 acres 18 cents of registered holding. The plaintiffs purchased the property under Ext.A1 sale deed in the year 1992. Prior to that, in the year 1988, two acres of property was purchased by the defendants under Ext.A2 sale deed. With respect to the respective title obtained by the plaintiffs and defendants, there is no dispute. The Commissioner who visited the property reported that in Sy.No.45/4 there is an extent of 3 acres 18 cents. There is no reduction of excess land attached to Sy.No.45/4. The commissioner has also located the entire extent of 3 acres 18 cents comprised in Sy.No.45/4 based on title deeds. But at the time of locating the property of plaintiffs and defendants committed a very serious mistake by locating the property of defendants on the northern portion and the property of the plaintiffs on the southern portion. In Ext.A2 sale deed of the year 1988, the property which was given to the defendants, having an extent of 2 acres, was specified as the eastern portion of the large extent of 3 acres 18 cents (registered holding). In the document relied on by the plaintiffs, exhibited as A1 sale deed, the property given to them having an extent of 1 acre 18 cents was described as western part of the paddy field out of a large extent of 3 acres 18 cents. There is no conflict between the description of properties in Ext.A2 and A1 documents. There cannot be any dispute in that behalf because of the reason that the description and its location as enumerated in both the title deeds are clear and unambiguous. It is the two acres of property being the eastern part of the large extent of 3 acres 18 cents was given to the defendants, but the commissioner who prepared Ext.C2 mahazar and Ext.C2(a) plan had mistakenly located the two acres of property as on the southern part instead of eastern part. The property of plaintiffs was located on the northern side instead of western side. It was submitted by the learned counsel for the appellants/defendants that though the same was brought to the notice of both the trial court and the first appellate court, no discussion had been done by the two courts and simply rejected the contention without discussing its merits or demerits. Though the learned counsel for the respondents/plaintiffs tried to advance a case that the property of the plaintiffs is actually situated on the southern side of the large extent of 3 acres 18 cents, even going by the plaint description it is clear that their property is situated on the western side. Their allegation is that 'B' schedule is the encroached portion and its description is stated as the property being the eastern portion of their property. If that be so, it amounts to an admission that the eastern part of the large extent of 3 acres 18 cents belonged to the defendants besides the recital contained in Exts.A1 and A2 documents. The mistake is so crucial and has to be rectified.