IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 RSA.No. 765 of 2010(G) --------------------------------- [AS.NO.63/2006 OF ADDITIONAL DISTRICT COURT (ADHOC-I), MANJERI, OS.NO.83/2002 OF MUNSIFF'S COURT, MANJERI] .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- MUHAMMED HILAL K.V., S/O.KOYAKUTTY, KOORIMANNIL VALIYAMANNIL HOUSE, ANAKKAYAM AMSOM, DESOM. BY ADV. SRI.P.VENUGOPAL. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. MANNIYIL ABDU, S/O.MOHAMMED, VETTUPURAM, PULLIYILANGADI, ANAKKAYAM AMSOM DESOM, ERNAD TALUK, MALAPPURAM. 2. PARAMBAN NASEEMA, W/O.MANNIYIL ABDU, VETTUPURAM, PULLIYILANGADI, ANAKKAYAM AMSOM DESOM, ERNAD TALUK, MALAPPURAM. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- R.S.A No. 765 of 2010 -------------------------- Dated this the 20th July, 2010 J U D G M E N T Aggrieved by the concurrent findings against him, the plaintiff in O.S. No.83/2002 before the Munsiff's Court, Manjeri has come up in appeal before this Court. 2. The suit was instituted for declaration and injunction. Plaint A schedule property belonged to Koyakutty as per Ext.A1 partition deed. The said person is the father of the plaintiff. After the death of his father, the plaintiff claims title and possession of the property. Plaintiff claimed that B schedule property is a part of plaint A schedule property. It is alleged that 1st defendant is in possession of 7.5 cents in R.S No.294/1 of Anakkayam Village. There is a house in that plot. It is alleged that 2nd defendant approached the Land Tribunal, Malappuram for getting purchase certificate for 60 cents of property. That was dismissed by the Land Tribunal. The allegation in the plaint is that defendants tried to trespass into the plaint schedule property and reduce a portion of it into their possession. Plaintiff apprehends R.S.A No. 765 of 2010 2 they will trespass into B schedule property. He therefore seeks a declaration that plaint B schedule property is part of the A schedule property which was obtained from his father as per the partition deed. 3. Defendants resisted the suit. They denied the nature of the allegation in the plaint. It is pointed out that plaintiff is bound to get the property identified. First defendant claimed that he had obtained certain extent of property on oral lease in 1969 and has been possessing the same. He has effected improvements in his property and is residing therein. First defendant was also having some properties which he had obtained under a registered deed which he had assigned to the second defendant and he is in possession of the same. The suit has been instituted showing a portion of the property of defendant as belonging to plaintiff. These two properties were separated by well defined boundaries. They prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. Exts.A1 to A3 were marked from the side of R.S.A No. 765 of 2010 3 the plaintiff. Exts. C1 and C2 are the commission report and plan. No oral evidence was adduced by the plaintiff. 5. The trial court found that the commissioner was unable to find out plaint B schedule property. She could not identify the property even with the aid of Taluk Surveyor,plaintiff and defendants. The lower appellate court found that as the identity of plaint B schedule property could not be established, the suit was dismissed. 6. The matter was carried in appeal by the defendants as A.S 63/2006 before the District Court, Manjeri. The lower appellate court considered the matter in detail and concurred with the trial court and dismissed the suit. 7. Learned counsel appearing for the appellant pointed out that the courts below were not justified in dismissing the suit. It is pointed out that even going by the plaint, B schedule is a portion of plaint A schedule property. There is no reason for the commissioner to have opined that B schedule could not be identified. It is pointed out that plaint B schedule lies on the north eastern R.S.A No. 765 of 2010 4 side of A schedule property. 8. Though those arguments are interesting, they are without any substance. Plaintiff claimed to own 80 cents of property. Even going by the averments in the plaint, property located by the Commissioner shown as ABHIJKLMNDA has an extent of 88 cents. The Commissioner has in his report stated that the plaintiff was unable to show plaint B schedule property and that it was impossible to identify the same. It is pointed out that the extent of property identified by her as per plaintiff's demand has an extent of 88 cents. No objection is seen to have been filed to commission report. 9. The lower appellate court has tried to locate the B schedule with reference to the boundaries. It is found that going by the boundaries, plaint B schedule was on the southern side of plaint A schedule property. 10. The lower court has also noticed the commission report, it is stated that even with the aid of Taluk Surveyor, plaint B schedule could not be located. R.S.A No. 765 of 2010 5 11. It is the case of plaintiff that B schedule is a portion of A schedule. It is to be noted the agent of the plaintiff was unable to locate the B schedule at the request of the commissioner. The court below noted that if the boundaries of A schedule as shown in the commission report is taken, the boundaries of B schedule will not tally. To crown it all, plaintiff did not feel it necessary to mount the box. The anomalies, discrepancies and inconsistencies remain unexplained. 12. The courts have considered the matter in detail and come to the conclusion that there is no plaint B schedule property as described in the plaint available on site which the plaintiff claims to have obtained from his father. There is no merit in this Appeal and it is accordingly dismissed. P.BHAVADASAN, JUDGE ma R.S.A No. 765 of 2010 6 R.S.A No. 765 of 2010 7