GOPINATH PILLAI v. CHANDRASEKHARA PILLAI

plaintiff.

2. The plaintiff and defendants 1 and 2 are the children of late Bhargavi Amma. The plaint 'A' schedule item No.1 belongs to the plaintiff as per Ext.A1 Settlement Deed of the year 1998 executed by the mother. Plaint 'A' schedule item No.2 is on the immediate eastern side of item No.1. The plaintiff obtained title over the same from the mother, as per Ext.A2 Settlement Deed of the year 2005. On the northern and western sides of plaint 'A' schedule is the plaint 'B' schedule which belongs to the second defendant. The second defendant obtained title over the same as per Ext.B2 Gift Deed of the year 1973 executed by the mother. On the southern side of plaint 'A' schedule item No.1 is the plaint 'C' R.S.A. No.894 of 2014 -: 2 :- schedule which belongs to the first defendant as per Ext.B4 Sale Deed executed by the second defendant. The property to its east and to the south of plaint 'A' schedule item Nos.1 and 2 belongs to defendants 3 and 4 as per Ext.B3 Sale Deed executed by Bhargavi Amma. On the eastern side of plaint 'A' schedule is a road. The plaintiff seeks for fixation of the northern, western and southern boundaries.

3. Defendants challenge the very existence of plaint 'A' schedule item No.2. The defendants contend that the plaintiff has not obtained any property under Ext.A2 document.

4. The trial court upheld the defendants contention and accordingly dismissed the suit. The decree was affirmed in appeal. It is challenging the same that the Regular Second Appeal has been filed.

5. I have heard the learned counsel on either side on the following substantial question of law :- R.S.A. No.894 of 2014 -: 3 :- “Were the courts right in having dismissed the suit for fixation of boundary when Exts.C2 Commissioner's reports and Exts.C2(c) & (d) Plans were available before the court for identifying the properties ?”

6. The properties of the plaintiff and the defendants originally belonged to Bhargavi Amma, the mother of plaintiff and defendants 1 and 2 as per Ext.A5 Gift Deed dated 25.04.1950. The total extent of property which was obtained by Bhargavi Amma under Ext.A5 was 118 cents. From the said extent, on 13.11.1956 as per Ext.B3 Bhargavi Amma conveyed 5 cents of property to defendants 3 and 4. The remaining extent available is 113 cents. On

20.11.1973 Bhargavi Amma executed Ext.B2 Gift Deed conveying 75 cents to the second defendant. After the conveyance the balance extent available is 38 cents. Thereafter on 11.06.1998, as per Ext.A1, Bhargavi Amma conveyed 38 cents to the plaintiff under Ext.A1. After the said conveyance no property remained with Bhargavi R.S.A. No.894 of 2014 -: 4 :- Amma. It is thereafter on 21.12.2005, that Bhargavi Amma executed Ext.A2 in favour of the plaintiff purporting to convey 90 square metres equivalent to 2¼ cents. Thus the contention of the defendants that Bhargavi Amma did not have any property remaining with her to be conveyed under Ext.A2, has force.

7. The plaintiff does not have a case that though under Ext.A5, the basic title deed, the total extent of property mentioned was 118 cents in fact there was excess extent available on land.

8. The Commissioner deputed in the suit noted that, on measurement it was found that there was deficit in the total extent. Thereupon he proceeded to prepare the plan making proportionate reductions in the extent from each of the documents. The course adopted by the Commissioner was obviously erroneous in the light of Section 48 of the Transfer of Property Act. The conveyances prior in point of time take the entire R.S.A. No.894 of 2014 -: 5 :- extent covered under the said documents. The deficit in extent if any has to be suffered by the latter assignee. Therefore the commissioner’s report and plans were rightly, not accepted by the courts to pass a decree.

9. The learned counsel for the appellant would argue that under Ext.A1 Bhargavi Amma had conveyed only

13.35 Ares which is equivalent to 33 cents; therefore, an extent of 5 cents remained with her. Therefore she had the title to execute Ext.A2. However, a reading of the schedule description in Ext.A1 would indicate that the property conveyed thereunder is stated to be, 13.35 Ares in RS 775/1-2 which is the 38 cents as per old survey number and prior deeds. The relevant portion reads thus :- “B.11 ð do-kÀ-sÆ 775/1.27 BÀ 58 N. ao-äÀ h-kv-Xp-hnð hnð-¸-\-bv¡v \o-¡n 775/1.2 F-óv k-_v Un-hn-j-\p- ÅXpw Sn G-ep-¡-bnð In-S-¡p-ó-Xp-am-b 13 BÀ-kv 35 N. ao-äÀ h-kv-Xphpw A-Xn-ep-Å ]-g-b ]p-cbpw k-I-e h- II-fp-am-Ipóp. Sn h-kv-Xp ap³ kÀ-sÆ N 1386 ð 5 R.S.A. No.894 of 2014 -: 6 :- skâpw DÄ-¸-sS 38 skâ v ap-óm-[m-c-{]-Im-cw tNÀ-¯n- cn-¡póp.” It is the 38 cents as per the old survey and documents that is described as the 13.35 ares in resurvey. It is to be borne in mind that the commissioner had reported deficit in the total extent. Therefore, the said contention has no force.

10. Be that as it may, having found that there is only deficit in extent and not excess extent Bhargavi Amma could not have conveyed anything in excess of 118 cents. As noticed above, no property remained with Bhargavi Amma after execution of Ext.A1 document in favour of the plaintiff. Therefore, the claim of the plaintiff over plaint 'A' schedule item No.2 based on Ext.A1 cannot be accepted.

11. The suit being one for fixation of boundary and the dispute between the parties being solely centered around plaint 'A' schedule item No.2, the suit is bound to fail. The courts were right in having dismissed the R.S.A. No.894 of 2014 -: 7 :- suit. The regular second appeal fails and is dismissed. No costs. kns/- Sd/- SATHISH NINAN JUDGE //True Copy// P.S. to Judge