IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 SA.No. 590 of 1995(C) --------------------------- AS.136/1992 of I ADDL. DISTRICT COURT, PALAKKAD OS.64/1988 of ADDL. MUNSIFF COURT, PALAKKAD .................... APPELLANT(S): RESPONDENTS/DEFENDANTS 2 TO 4. --------------------------------------------------------------- 1. KUNHIKRISHNANKUTTY, S/O. LATE MADHAVI AMMA, KANNATH HOUSE, KIZHAKKUMPURAM P.O., PALAKKAD TALUK. 2. RAMACHANDRAN, S/O. LATE MADHAVI AMMA, KANNATH HOUSE, KIZHAKKUMPURAM P.O., PALAKKAD TALUK. 3. PARVATHY, D/O. LATE MADHAVI AMMA, KANNATH HOUSE, KIZHAKKUMPURAM P.O., PALAKKAD TALUK. BY ADV. SRI.T.K.CHINNAN RESPONDENT(S): APPELLANTS/PLAINTIFFS ---------------------------------------------------- 1. MADHAVI AQMMA, D/O. KUNCHITTI AMMA, NILANCHERI, KIZHAKKUPURAM P.O., PALAKKAD TALUK, PALAKKAD DISTRICT - 678 642. 2. VIJAYAN, S/O.KUNCHITTI AMMA, NILANCHERI, KIZHAKKUPURAM P.O., PALAKKAD TALUK, PALAKKAD DISTRICT - 678 642. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ---------------------------- S.A.No. 590 of 1995 --------------------------------- Dated this the 8th day of March, 2011 JUDGMENT The defendants in O.S.No. 64/1988 before the Munsiff's Court, Palakkad are the appellants. The parties and facts are hereinafter referred to as available before the trial court. 2. The plaintiffs claim title to the Ext.A1 document dated 01.08.1972. They also produced a sketch of the property as Ext.A2. According to them, the property lies in survey No.194 and the defendants property situated on the northern side in the survey No.224. The plaintiffs claim that he had put up a fence along the survey boundary of the plaint schedule property, he complaint that the defendants tried to encroach into the property. He filed a police complaint. He apprehends further threat from the defendant and hence initially prayed for injunction which was later amended to include recovery of possession on the strength of title. 3. The defendants resisted the suit. They contended that plaintiffs does not have right to the entire plaint schedule property. The defendants pointed out that the property comprised in survey No.224 belongs to them. The fence was put up by the defendant s along the survey boundary line. They denied the alleged trespass and S.A.No. 590 of 1995 2 mischief attributed by the plaintiffs. They also contended that if at all plaintiffs had any manner of right over any portion of the property in their possession, that is lost by adverse possession and limitation. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and Exts. A1 and A2 were marked. Defendants examined DW1 and had Exts.B1 to B3 were marked. Exts.C1 to C4 are the commissioner's report and plan. The trial court found that the plaintiffs had no idea of the property and he had conceded that there was a fence separating the two properties. Based on these admissions made by the plaintiffs it is also found by the trial court that if at all any portion of the property of the plaintiff is in the possession of the defendants, the plaintiffs had lost their title by adverse possession and limitation. 5. The plaintiffs carried the matter in appeal as A.S.136/1992 before the Additional District Court, Palakkad. The lower appellate court on an re-evaluation of the evidence found that there was an encroachment by the defendants into the plaintiffs' properties to an extent of 3.260 cents of land. Accordingly granted a decree in favour of the plaintiff. Hence the second appeal. S.A.No. 590 of 1995 3 6. Notice is seen issued on the following substantial questions of law: 1. Can an effective decree for recovery of possession be passed in the absence of necessary pleadings in respect of the identity, extent and measurement of a disputed land ? 2. Can a plea of adverse possession be rejected without finding the date of time of dispossession ? 3. Can a commissioner's plan, the correctness of which is challenged by the plaintiffs from basis for and become part of a decree in favour of the plaintiffs? 4. Can evidence in the form of commissioner's report and plan be allowed to supplement laconic pleadings in respect of identity and extent of disputed lands in a suit for recovery of possession ? 7. Learned counsel appearing for the appellants pointed out that there was no justification from the lower appellate court to have interfered with the judgment and decree of the trial court. The learned counsel contended that the evidence of PW1 is sufficient to non-suit the plaintiffs. Even according to the plaintiffs the fence that was available was an old one and still the lower appellate court granted a decree in favour of the plaintiffs. S.A.No. 590 of 1995 4 8. It is not in dispute that properties owned and possessed by parties are comprised in two different and distinct survey numbers. The plaintiffs property is in survey No.194/3 3 c and 4 while the defendants property comprised in survey No. 224. There is level difference between the property also. It is pointed out that the commissioner who had visited the properties found that after the re- survey, plaintiffs property is comprised in survey No.174/10 and that of the defendants in 174/9. The commissioner had also submitted a sketch showing the survey boundary lines separating the respective properties. The commissioner did not assess the age of the fence separating the two properties. The lower appellate court relied on the evidence of DW1 who categorically stated that he does not claim any extent of property in survey No.194 and his property is exclusively in 224. The lower appellate court found that there is an encroachment of extent of 3.260 cents by the defendants into the property comprised in survey No.194, which admittedly belonged to the plaintiff. Therefore, the decree was granted. The lower appellate court also taken note of the age of the fence and also the other fact that it cannot be said that title of the plaintiffs is lost by adverse possession and limitation. It does not appear that any serious objection can be taken to the reason which compelled S.A.No. 590 of 1995 5 the lower appellate court to hold in favour of the plaintiffs. It is significant to notice that by the decree now granted to the plaintiffs there is no case for the defendants that they fall short extent of property to which they are entitled to as per their document of title. The findings of the lower appellate court are based on appreciation of evidence in the case and are question of facts. The finding is neither perverse nor unwarranted by evidence on record. No substantial questions of law arises for consideration in the second appeal. The second appeal is without merits and it is dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln