IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 RSA.No. 610 of 2008() --------------------- AS.109/1998 of SUB COURT, TIRUR OS.47/1996 of MUNSIFF COURT, TIRUR .................... APPELLENTS/APPELLANTS 2 TO 6 AND 8 TO 13 /L.H OF ---------------------------------------------------------------------------------------- 1. FATHIMA SUHARA, D/O LATE AHAMMEDKUTTY, KAYALMADATHI, ANANTHAVOOR AMSOM KONNALLOOR DESOM, TIRUR TALUK, MALAPURAM DISTRICT. 2. BUSHARA, D/O. DO.....DO.... 3. SHAHIDA, D/O DO..... DO..... 4. MUHAMMED SABU, S/O DO....DO.... 5. JASMI DO......DO...... 6. KHADHEEJA DO.............DO.......... 7. MUMTHAS, DO........DO....... 8. NOUSHAD, DO..........DO..... 9. JAMSHEED, DO.......DO...... 10. ILLIAS, DO.....DO...... 11. PATHUMMA, W/O DO.....DO...... BY ADV. SRIC.M.MOHAMMED IQUABAL RESPONDENT(S): RESPONDENTS & 7TH APELLANT/PLAINTIFFS:- ------------------------------------------------------ 1. THITHEEMAKUTTY, D/O SAIDALIKUTTY, KAYALMADATHI, ANANTHAVOOR AMSOM, KONNALLOOR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. 2. BULKEES, D/O. DO......DO..... 3. KOYAMUTTY, S/O LATE AHAMMEDKUTTY, KAYALAMADATHI, ANANTHAVOOR AMSOM, KONNALLOOR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.610 of 2008 = = = = = = = = = = = = = = Dated this the 8 th day of January, 2009 JUDGMENT The legal representatives of the sole defendant in O.S.No.47 of 1996 on the file of the Munsiff's Court, Tirur are the appellants in this second appeal. The said suit was for fixation of the southern and eastern boundaries of plaint schedule item No.2 and for consequential injunction. The plaint schedule item No.1 admeasuring 21 cents is comprised in Re- survey No.188/6 and plaint schedule item No.2 lying to the west of item No.1 has an extent of 14 cents and is comprised in Re- survey No.188/3. The plaint schedule item No.1 was claimed by the 1st plaintiff as her absolute property. Plaint Schedule Item No.2 was claimed by the 2nd plaintiff as belonging to her. The plaintiffs claimed that the southern boundary of both plaint schedule item Nos.1 and 2 was the thodu running east-west and joining the larger thodu on the west and that the eastern boundary of plaint schedule item No.1 was also a thodu running north-south and the thottu-varambu(ridge) which was located to R.S.A.No. 610 of 2008 2 the west of the thodu on the east of item No.1 was situated within plaint schedule item No.1. 2. The suit was resisted by the defendant contending, inter alia, that the plaintiffs were guilty of suppressing the title deed in respect of plaint schedule item No.1, that Ext.A1 would not probabilise the plaintiff's case and that the claim of the plaintiffs that their properties extended up to the thodu on the south was not true and that the thottu-varambu (ridge) situated to the west of the eastern thodu was not part of plaint schedule item No.1. 3. On the side of the plaintiffs one witness was examined as PW1 and Exts.A1 to A10 were marked. On the side of the defendant he examined himself as DW1 and Exts.B1 to B6 were marked. The learned Munsiff issued an Advocate Commissioner on the request of the plaintiff. The Advocate Commissioner was examined as CW1 and Exts,.C1,C3 and C5 plans and C2, C4 and C6 report were marked through him. 4. The learned Munsiff, after trial, as per judgment and decree dated 31.3.98 decreed the suit as prayed for after holding that the eastern boundary of the plaint schedule item No.1 was the thodu running north-south to the east of the said item and R.S.A.No. 610 of 2008 3 that the Thottu-varamba(ridge) was within the plaint schedule Item No.1 and the defendants who were the owners of the property by name Mundakadan Nilam situated to the east of the said thodu could not lay any claim over the ridge, that the southern boundary of both plaint schedule item Nos.1 and 2 was the thodu running east-west and eventually joining the bigger thodu on the west and that the defendants who were the owners in possession of the southern property by name Varanasi nilam could not claim that the thodu was passing through their property. The suit was accordingly decreed as follows:- “1. The thodu referred to in Exhibits C5 plan is fixed as the southern and south-eastern boundary of item No.1 and southern boundary of item No.2 of the plaint schedule properties. The eastern boundary of R.S.188/6 is fixed as the remaining eastern boundary of item No.1 of the plaint schedule properties. The other boundaries of the suit property are fixed as shown in Exhibit C5 plan as there is no dispute in respect of those boundaries; 2. the defendant is restrained by a permanent injunction from trespassing into the plaint schedule properties and interfering with the plaintiffs' possession over it; and 3. the plaintiffs are entitled to get cost of the suit from the defendant.” R.S.A.No. 610 of 2008 4 5. On appeal preferred by the defendants, the lower appellate court as per judgment and decree dated 15.1.08 dismissed the appeal confirming the decree passed by the trial court. Hence this second appeal. 6. The following are the questions of law formulated in the memorandum of appeal:- a) Are the courts below justified in relying on Ext.A3 plan which is not properly proved and which is not acceptable in evidence in the suit? b) Are the courts below justified in relying on Exhibits A2 and A7 judgments to come to a decision with respect to the location of the boundary in between the properties of the plaintiffs and defendants since the same was not an issue in dispute of the earlier case? c) Are the courts below justified in holding that the description of the boundaries is to be preferred to survey numbers and measurement for identifying the properties belonging to the plaintiffs and defendant? d) Are not the judgments and decrees of both the courts below vitiated for not properly appreciating the evidence oral and documentary available in this case? 7. The learned counsel appearing for the appellants who are the legal representatives of the sole defendant made the following submissions before me in support of the appeal:- R.S.A.No. 610 of 2008 5 The courts below were not justified in relying on Ext.A2 judgment and A7 appellate judgment with regard to the earlier litigation between the predecessors-in-interest of the parties filed as O.S.No.155/1946 on the file of the District Munsiff's Court, Tirur. That was a suit with regard to the right to use water from the thodus in question and that litigation did not decide the title of the parties. Eventhough three plans were submitted by the Advocate Commissioner deputed in this case, reliance placed on Ext.A3 plan in O.A.No.155/1946, without examining the Commissioner who prepared Ext.A3 plan, was erroneous. There was no independent consideration of the title of the parties with reference to Exts.C1 to C6. The 1st plaintiff had suppressed from the court her title deed and it was the defendant who produced the same as Ext.B2. Neither Ext.B2 pertaining to plaint schedule item No.1 nor Ext.A1 pertaining to plaint schedule item No.2 proves the case of the plaintiffs. The decrees passed by the courts below without a proper identification of the properties and placing reliance on Ext.A2 and A7 judgment and A3 plan cannot be sustained. R.S.A.No. 610 of 2008 6 9. I am afraid that I cannot agree with the above submissions. No doubt, both the courts below have relied on Ext.A2 judgment in the earlier litigation to get some idea about the claim made by the present defendant's father in the earlier litigation. In that suit it was held that the present defendant's father was not entitled to fill up a portion of the thodu as if it was a water cross passing through his property. The said litigation was fought upto this Court by the defendant's father. Ext.A7 is the judgment of the First Appellate Court. That apart, the trial court had independently considered the claim of the parties both with respect to the title deeds as well as other materials. It is true that Ext.A3 plan prepared by the Advocate Commissioner in O.S.No.155/1946 has also been relied on by the courts below. No doubt, the Advocate Commissioner, who prepared the said plan has not been examined in this case. But it is doubtful whether the said Advocate Commissioner was alive during the present litigation. Even otherwise Ext.A3 plan was marked without any demur and it is late in the day for the appellants to contend that the said plan should not have been relied on by the courts below. The findings recorded by the courts below are R.S.A.No. 610 of 2008 7 pure findings of fact. No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 8 th day of January, 2009. V. RAMKUMAR, JUDGE sj