IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 SA.No. 392 of 1996() ---------------------------- AS.52/1993 of SUB COURT, QUILANDY OS.110/1989 of MUNSIFF MAGISTRATE COURT, PERAMBARA .................... APPELLANT(S): RESPONDENT:PLAINTIFF: ----------------------------------------------------------- THURASSERIKANDI DEVI, D/O.ANDI, AGED 40 YEARS, RESIDING AT VELLIYODANKANDIYIL MENHANIYAM AMSOM DESOM, P.O. MENHANIYAM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.C.VATHSALAN RESPONDENT(S): APPELLANT: DEFENDANT: ---------------------------------------------------------------- PADINHARE THAYYLLATHIL NARAYANAN, S/O.KANNAN, AGED 40 YEARS, MENHANIYAM AMSOM DESOM, P.O.MENHANIYAM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.P.C.SASIDHARAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ S.A.No.392 of 1996 ---------------------------------------------- Dated, this the 20th day of August, 2009 J U D G M E N T Plaintiff in the suit is the appellant. The suit was originally for injunction. Subsequently the suit stood amended as one for recovery of possession. 2. The trial court decreed the suit. But, in appeal by the defendant the first appellate court has reversed the decree. 3. The undisputed facts are as follows:--The plaint schedule property is alleged to be derived by the plaintiff under Ext.A2 document. The predecessor-in-interest of plaintiff obtained title to the property from the defendant and his brother under Ext.A1. The extent of the property is shown as nearly 2 ¼ cents. The evidence of plaintiff consists of A1 to A3 and the deposition of Pw1 and Pw2. On the side of the defendant the evidence consists of the deposition of Dw1. The Court exhibits consists of C1 to C5. 4. Ext.A1 is the assignment deed executed by the S.A.No.392/1996 -2- defendant and his brother in favour of Ammed. Ext.A2 is the assignment deed in favour of the appellant by Ammed. Ext.A3 is the revenue receipt. Essentially the dispute centres around plot-C in Ext.C3 plan. Plot-A is the property of the plaintiff about which there is no dispute. Just to the immediate west of it lies plot-C which is the bone of contention of the parties. To the immediate west of the said property lies plot-B which is in the undisputed possession of the defendant. Therefore, the dispute is about nearly ¼ cent which is comprised in plot-C and lies between plot-A and plot-B. Pw2 is the Engineer. He was examined to disprove the case of the defendant that some land of the plaintiff was lost by way of acquisition. The trial court reposed faith in the testimony of Pw2. The first appellate court on the other hand did not chose to rely on Pw2. Originally, the case of the appellant was that the appellant is in possession of plaint C schedule property. It is subsequently the suit was amended and a decree for recovery of possession was sought. The trial court and the Ist appellate court have come to the conclusion that plot-C is in the possession of the defendant. On the basis of the commission S.A.No.392/1996 -3- report the trial court accepted line AC running north south as the western boundary of A schedule property. In other words the trial court took the view that in order to make up the extent conveyed under Ext.A2 to the appellant plot-C also must be included as belonging to the appellant and it is on that basis that recovery was ordered by the trial court. 5. The first appellate court has found that the evidence of Pw2 cannot be believed. Reasons have been given. Inter alia it has found that he was not having anything to do with the acquisition and he is not the officer concerned at the time. 6. The questions of law which are purportedly raised in the memorandum of appeal reads as follows: “Whether the court below is justified in discarding the documentary evidence Ext.A1 to A3 along with Ext.C1 to C5 in a case where the dispute is with regard to extent of property. In a suit for recovery of possession and fixation of boundary pleadings as to trespass by the other party after the filing of the suit is necessary.” S.A.No.392/1996 -4- 7. A perusal of para 13 of the appellate judgment would show that it may not be correct to allege that the Ist appellate court was not aware of the argument based on Exts.A1 and A2. This is because going by the schedule to Ext.A1 and A2 plot-C would be said to fall within the property conveyed thereunder to Ammed and later on to the appellant. On finding possession with the defendant the court posed the question as to what could possibly have happened to the ¼ cent. The answer is given in para 14. In short, what is stated is that there is evidence to the effect that there is a bend and there was subsequent maintenance work done. It is further found that a granite wall have been put up by Ammed immediately after the assignment took place in his favour by assignment under Ext.A1. It is found by the Ist appellate court that there is no cross examination of DW1 on this aspect. Therefore it has found that Ammed the immediate assignee of defendant and with reference to whom there is evidence of Dw1 himself that the property was measured at the time of Ext.A1 felt it appropriate to construct boundary wall and the property comprised in the boundary wall is S.A.No.392/1996 -5- apparently plot-A. It cannot be said that there is non- consideration of Exts.A1 and A2. Both the trial court and the Ist appellate court found that the defendant is in possession. I am not able to see any merit in either questions of law which is raised. Essentially, the request of the appellant would be to re-appreciate the evidence which I may not be justified in doing in the limited jurisdiction under Section 100 of Code of Civil Procedure. Accordingly, the second appeal fails, and it is dismissed. The parties are directed to bear their respective costs in this appeal. Consequently, I.A.No.891/1996 is also dismissed. (K.M.JOSEPH) JUDGE. MS