The main legal point established is that the description of a property by extent alone is not conclusive in determining its identity, and the court must consider other verifiable materials to establish title and possession.

JUDGMENT :

RSA 1128 of 2006 arises from OS 95/2002 filed by the appellants herein as plaintiffs. The suit is one for declaration of title and possession, and for a declaration that Sale Deed No.906/2001(Ext.B3) does not affect the plaint schedule property. The plaint schedule property is, 13 cents 160 square links with building thereon.

2. RSA 1129/2006 arises from OS 82/2002, a cross suit. The suit is one for prohibitory injunction against trespass. The plaint schedule property therein is the eastern most 3 and 3/4 cents from out of the plaint schedule property in OS 95/2002.

3. The suits were jointly tried. OS 95/2002 was taken as the leading case. The appeals which arose therefrom, were heard jointly. It is being followed suit at this second appellate stage and the appeals are heard together. Since the plaint schedule in O.S.82/2002 is a portion of the plaint schedule in O.S.95/2002, the property in O.S 95/2002 is hereinafter referred to as, “the plaint schedule property” and the parties are referred to according to their status in O.S. 95/2002.

4. The plaintiffs claim title over the plaint schedule property as per Ext.A1 Settlement Deed of the year 1994. It was executed by their grandmother viz. Mariam @ Mariamma. On the northern side of the plaint schedule property is a way. Mariam had obtained the property as per Ext.B6 Partition Deed of the year 1110 ME, as included in ‘G’ schedule therein. The properties on the east, south and west of the plaint schedule property belonged to Varghese. He obtained it under the very same partition deed, Ext.B6. He was allotted the properties as included in the 'D' schedule therein. According to the plaintiffs, Varghese and his children had sold away his properties situated adjoining the plaint schedule on all the three sides. Thereafter, his children, as per Ext.B3 document of the year 2001, purported to convey an extent of 3 3/4 cents forming the eastern portion of the plaint schedule property, stating it to be portion of the properties allotted to Varghese under Ext.B6 partition. There remained no such property for Varghese or his successors to convey under Ext.B3. On the strength of Ext.B3, the vendees therein are attempting to trespass into the plaint schedule property. It is on these allegations that the suit is filed for a declaration of the plaintiffs' title, and that Ext.B3 does not affect the plaint schedule property.

5. The defendants contend that, under Ext.B6 partition, the plaintiff's predecessor had got only 10 cents of property and that the claim for 13.160 cents is unsustainable. The remaining 3.160 cents is part of the property of Varghese, which devolved on his children. By Ext.B3 sale, it became vested with the defendants. Thus they claim title and possession over the plaint schedule property.

6. The courts concurrently found that, under Ext.B6 partition, the predecessor of the plaintiff obtained only 10 cents and that the claim is in excess of that. Thereupon, the suit was dismissed.

7. Heard learned counsel Sri. M.P. Ramnath on behalf of the appellants-plaintiffs and learned Senior Counsel Sri. T. Krishnanunni on behalf of the respondents-defendants on the following substantial question of law:-

“Were the courts right in having fixed the identity of the property solely based on the extent, by ignoring other verifiable materials ?”

8. The plaint schedule property is described as, “property having an extent of 13.160 cents which is described as 11 cents as per thandaper”. As noticed, Ext.B6 Partition Deed is the basic document of title of both the plaintiffs and the defendant. The plaintiffs' property is included in the 'G' schedule to Ext.B6 and the defendants property is included in the 'D' schedule therein. In Ext.B6 the plaint schedule property is described as having an extent of 10 cents. Based on Ext.B6, a Settlement Deed was executed by Mariyam in favour of the plaintiffs. In Ext.A1 settlement deed, the property is described as, “property having an extent of 13.160 cents