IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 RSA.No. 1099 of 2008() ---------------------- AS.73/1996 of I ADDL. DISTRICT COURT, KOLLAM OS.533/1991 of MUNSIFF-MAGISTRATE'S COURT, PARAVOOR. --------------- APPELLANT/APPELLANT/PLAINTIFF ----------------------------- N. THANKAPPAN, ROSE VILLA, THAZHAM, CHATHANOOR. BY ADV. SRI.ALEX N.MATHEW (KOLLAM) SRI.H.RAMANAN SRI.JAMES JOSE RESPONDENT/RESPONDENT/DEFENDANT: ------------------------- SIVADAS PANICKER, SOMA NILAYAM, ERAM, CHATHANNOOR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.1099 OF 2008 --------------------------- DATED THIS THE 24TH DAY OF JUNE, 2009 JUDGMENT Plaintiff in O.S.No.533/1991 on the file of the Munsiff-Magistrate's Court, Paravoor is the appellant. This appeal is directed against the judgment and decree in A.S.No.73/1996 on the file of the Ist Additional District Court, Kollam. The suit was filed for fixation of the northern and southern boundaries of A and B schedule properties respectively belonging to the plaintiff, for restraining the defendant from making any constructions or causing any damages to the D schedule property, for making any modifications to the southern boundary of the B schedule property, for recovery of possession of plaint D schedule property and for demolition of the structures put up in the said property. The trial court considered the respective contentions and found that the plaintiff is not -2- R.S.A.No.1099/2008 entitled to any relief and dismissed the suit, which was confirmed in appeal. Hence, this second appeal. 2. The description of plaint A schedule property shows an extent of 24 cents and the excess thereon and the B schedule property is belonging to the plaintiff. According to the plaintiff, plaint B schedule property is a part of plaint A schedule property. Exts.A1 to A4 are the sale deeds produced by the plaintiff in respect of plaint A and B schedule. C schedule property belonging to the defendant lies in between A and B schedule properties and he is residing in the house situated therein. The plaintiff filed the suit stating that the ridge separating A and B schedule properties was destroyed by the defendant and he put up a new ridge after encroaching 1 ½ cents of land in plaint A schedule property at its north end and form part of C schedule property. This 1 ½ cents is described as the D schedule property. According to the plaintiff, the defendant has no manner of right and in the circumstances the suit was filed for -3- R.S.A.No.1099/2008 the aforesaid reliefs. 2. In the written statement filed by the defendant it is inter alia contended that the plaint D schedule property is part of plaint C schedule property owned by him, that A and B schedule properties stand separated from the C schedule property, by means of very old, distinct and well-formed ridges and survey stones. He denied the allegations of demolition of old ridge, putting up of a new one and the allegation of damage and trespass etc. The trial court, after examining the oral and documentary evidence, held that there is excess land in plaint A, B and C schedule properties. In plaint A schedule property there is an excess of 1.25 cents, plaint B schedule property, there is an excess of 135 sq. links and plaint C schedule there is an excess of 250 sq. links in addition to the 3 schedule properties which lies contiguous to plaint C schedule within common boundary having 450 sq. links and the extent of D schedule property is 115 sq. links. There is an excess area of 700 sq links. According to -4- R.S.A.No.1099/2008 the defendant, the C schedule property property is enjoyed within well-defined boundaries of the property. The plaint A schedule is also well-defined boundary, which according to the Commission report Ext.C2a, is more than 15 years old. Ext.C2(a) is a plan prepared by the Commissioner. The first Commissioner was examined as PW-4 and the 2nd Commissioner as PW-6. Both the Commissioners reported that the the defendant's property namely, C schedule stands separated from A and B schedule properties by way of old ridges on the north and south. In Exts.C2 report, the Commissioner reported that the age of the ridge between A and C schedule properties is more than 15 years old. The commissioners also reported in Exts.C1 and C2 that that there is a ridge in between B and C schedule properties. In Ext.C1 the Commissioner also reported that there are stones on all the 4 corners of the C schedule property. The plaintiff seeks to recover 1 ½ cents from C schedule property. On measurement, the Commissioners found that excess land possessed by the -5- R.S.A.No.1099/2008 defendant is only 700 sq. links also. The Commissioners also reported that there is excess land in A and B and C schedule properties. The trial court and the Appellate Court on the basis of the above mentioned facts and reasons concluded that the plaintiff has failed to prove the that the defendant had reduced any portion of the plaint A schedule property and that there is distinct well-defined boundary ridge to separate B and C schedule properties and therefore the prayer for fixation of boundary in between the property cannot be countenanced. The Appellate Court also examined the above said contentions of the respective parties and agreed with the findings recorded by the trial court. The findings entered by the trial court and confirmed in appeal, are based on the oral and documentary evidence adduced by the parties. The findings arrived at are, after considering and evaluating the materials on record and the conclusions are correctly made out. No grounds are made out by the appellant to take a different view in the given circumstances. -6- R.S.A.No.1099/2008 No question of law much less any substantial question of law arises for consideration. In the result, the appeal fails and accordingly it is dismissed. HARUN-UL-RASHID, Judge. kcv. -7- R.S.A.No.1099/2008 O R D E R This Court by judgment dated 31st July, 2006 in S.A.No.806/2001 remitted the case to the Lower Appellate Court for denovo consideration, in the light of the fact that the appellate judgment was passed without noticing the death of the respondent/defendant. It was brought to the notice of this Court that the Lower Appellate Court disposed of the appeal, namely, A.S.No.73/96 on the file of the First Additional District Court, Kollam, without noticing the death of the respondent/defendant, who died pending appeal and without impleading the legal representatives. This Court held that the judgment passed by the Lower Appellate Court in A.S.No.73/96 is a nullitty. Therefore, this Court did not entertain the second appeal granting liberty to the appellant/plaintiff to implead the legal representatives of the deceased-respondent. 2. Subsequent to the remand, the appellant/plaintiff filed an application as I.A.No.1391/2006 for impleading the legal heirs -8- R.S.A.No.1099/2008 of the deceased defendant, who is the sole respondent in the appeal. That I.A. was allowed by order dated 8/1/2007. Subsequently, the appeal was heard and the judgment was pronounced on 16//2/2008. Surprisingly, the cause title in the appeal again shows the name of the deceased-respondent. Though the legal heirs were impleaded as additional respondents, the Appellate Court failed to amend the cause title by adding the parties impleaded. This is a specific case wherein this Court directed the appellant to move before the Appellate Court necessary application for impleding the legal heirs of the deceased-respondent. In spite of the fact that the appeal itself was not entertained for the reason that the judgment was passed against the dead person, necessary directions were issued by this Court. In spite of that direction, the Lower Appellate Court recklessly passed the judgment with the dead person in the party array. Registry is directed to call for the report from the Ist -9- R.S.A.No.1099/2008 Additional District Judge, Kollam and the report shall be submitted within a week from today. Communicate the order forthwith. HARUN-UL-RASHID, Judge. kcv.