IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 RSA.No. 946 of 2009() --------------------- AS.122/2004 of I ADDL. SUB COURT, TRIVANDRUM OS.1720/1999 of M.C.,TRIVANDRUM .................... APPELLANTS: APPELLANTS 1 &2/PLAINTIFFS 1 &2: ----------------------------------------- 1. VISWADAS, S/O.LATE PACKIAM, AYTHUMOOLA, PUTHUVAL PUTHEN VEEDU, THAMALAM, RESIDING AT BETHEL HOUSE, CHITTAZHA, VATTAPPARA POST, THIRUVANANTHAPURAM. 2. PUSHPITHA, W/O.VISWADAS, BETHEL HOUSE, CHITTAZHA, VATTAPPARA POST, THIRUVANANTHAPURAM. BY ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. RESPONDENTS: RESPONDENTS 1 TO 4/ DEFENDANTS 1 TO 4: ---------------------------------------------- 1. SHIBA, W/O.THANKAN, AYTHUMOOLA, MELEPUTHEN VEEDU, THAMALAM, POOJAPPURA P.O., THIRUVANANTHAPURAM. 2. SUNDARADAS, S/O.PACKIAM, RESIDING AT SUNDAR COTTAGE, THAMALAM, POOJAPPURA P.O., THIRUVANANTHAPURAM. 3. GNANADAS, S/O.PACKIAM, RESIDING AT AYTHUMOOLA MELE PUTHEN VEEDU, THAMALAM, POOJAPPURA P.O., THIRUVANANTHAPURAM. 4. SWARNABAI, D/O.RASALAMMA, RESIDING AT THATHAMANGALAM, THAMALAM, POOJAPPURA P.O., THIRUVANANTHAPURAM. ADV. SRI.K.B.PRADEEP FOR R1 TO 4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.946 of 2009D --------------------------------------- Dated this 24th day of November, 2009 JUDGMENT Respondents appear through Adv. K B Pradeep. 2. The second appeal arises from judgment and decree of learned First Additional Sub Judge, Thiruvananthapuram in A.S.No.12 of 2004. That appeal arose from judgment and decree of learned Munsiff, Thiruvananthapuram in O.S.No.1720 of 1999. Appellants filed the suit seeking fixation of boundary and prohibitory injunction concerning 12 cents in survey No.2034/2 which the appellants claimed as per Ext.A1, sale deed No.1964 of 1967. They claimed that the suit property is part of a total extent of 2.45 acres. Respondent Nos.1 and 2 are residing on the west of the suit property. Respondent Nos. 3 and 4 are residing on the north of the suit property. Appellants claimed that themselves and respondent Nos.1 and 2 have access to their properties from Thamalam road through the pathway along east of the suit property having a width of 4 feet. Respondent Nos.1 and 2 closed that pathway in their attempt to make a new pathway through the schedule property. Hence the suit claiming reliefs as first above stated. 3. Respondents contended that assignor of appellants had no right over the property mentioned in Ext.A1 to be assigned to them. They contended that the property described in Ext.A1 has no nexus with the property described in the plaint schedule which according to R.S.A.No.946 of 2009 2 them cannot be identified. They also disputed existence of the way as claimed by the appellants. Trial court found from Exts.C1 and C1(a), report and plan prepared by the Advocate Commissioner with the assistance of Surveyor and the evidence of PW1 that the suit property has not been properly identified. According to the Commissioner and Surveyor (PWs.2 and 3), property shown by the appellants as described in Ext.A1 is 'ABCD' plot in Ext.C1(a) but PW1 stated that ABCD plot is not the property belonging to him as per Ext.A1. In view of that, trial court dismissed the suit as the suit property has not been identifiable. That was confirmed by the first appellate court. 4. I have gone through the judgment under challenge and heard counsel on both sides. There is real dispute regarding identity of the property. Appellants do not agree that property identified by the Advocate Commissioner and the Surveyor in Exts.C1 and C1(a) is the property they are claiming title and possession as per Ext.A1. Without settling disputes as to title, possession and identity of the property no decree for fixation of boundary could be granted as held in Bapputty (a) Sydali and Others Vs. Cheriakutty (a) Veerankhani Rawther (1990 (1) KLJ 218) and Anjil Vellachi and Others Vs. Mamuni Bhaskaran (a) Vattayil Bhaskaran (2009 (3) KHC 728). In the light of the above, the proper remedy of appellant is to sue for declaration of title and other appropriate reliefs. Findings entered by R.S.A.No.946 of 2009 3 the courts below on identity and title claimed by the appellants and the validity of Ext.A1 are set aside and those findings shall not affect the right of appellants to seek appropriate reliefs if they are otherwise entitled to that course. Without prejudice to that right if any of the appellants, second appeal is dismissed as it involves no substantial question of law. THOMAS P JOSEPH, JUDGE Sbna/