IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 SA.No. 907 of 1996(G) ------------------------------------ AS.NO.1/1994 OF SUB COURT, THIRUVALLA OS NO.249/88 OF MUNSIFF COURT, THIRUVALLA ....... APPELLANT(S): APPELLANT:PLAINTIFF: ------------------------------------------------------------ KRISHNA PILLAI VASUKUTTAN PILLAI, MANGALATHU VEETTIL, VALLAMKULAM, PADINJARE MURI, ERAVIPEROOR VILLAGE. BY ADVS. SRI.VARGHESE P.THOMAS, SRI.GEORGE CHERIAN (THIRUVALLA). RESPONDENT(S): RESPONDENTS:DEFENDANTS: ----------------------------------------------------------------------------- 1. MANI, D/O.KRISHNA PILLAI, POIKAYIL VEETTIL, VALLAMKULAM PADINJARE MURI, ERAVIPEROOR VILLAGE. * 2. KRISHNA PILLAI, F/O. POIKAYIL VEETTIL, VALLAMKULAM PADINJARE MURI, ERAVIPEROOR VILLAGE. (DIED) 3. BHARGAVIAMMA SAVITHRIAMMA, MANGALATHU VEETTIL, VALLAMKULAM PADINJARE MURI, ERAVIPEROOR VILLAGE. 4. RADHAKRISHNAN NAIR, MANGALATHU VEETTIL, VALLAMKULAM PADINJARE MURI, ERAVIPEROOR VILLAGE. 5. PRASAD, MANGALATHU VEETTIL, VALLAMKULAM PADINJARE MURI, ERAVIPEROOR VILLAGE (MINOR). 6. SATHEESH (MINOR), MANGALATHU VEETTIL, VALLAMKULAM PADINJARE MURI, ERAVIPEROOR VILLAGE. (3RD RESPONDENT IN THE GUARDIAN OF MINOR DEFENDANTS 5 AND 6) * 1ST RESPONDENT IS RECORDED AS THE LEGAL REPRESENTATIVE OF THE DECEASED 2ND RESPONDENT AS PER ORDER DTD. 5/12/97 IN CMP NO.2117/97. BY ADV. SRI.M.NARENDRA KUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON 17/06/2010 DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NOS.1981/1996 & 593/2002 IN SA.NO.907/1996 DISMISSED 17/06/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 907 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of June, 2010. JUDGMENT The plaintiff, who has been non-suited by the courts below is the appellant. The parties and facts are herein after referred to as they are available before the trial court. 2. The plaintiff obtained the plaint schedule property as per Exts.A1 and A2 dated 1.12.1967 and 30.11.1978 respectively. Ever since then he has been in possession and enjoyment of the same. He resides in the building put up in the property. Defendants 3 to 6 obtained their property as per Ext.A3 dated 6.7.1981. They own the property lying on the southern side of the plaint schedule property. According to the plaintiff, with the intention of annexing a portion of the plaint schedule property, the defendant trespassed into the plaint schedule property and reduced 6 cents in to their S.A.907/1996. 2 possession. They put up a wall separating that from the plaint schedule property. They again trespassed and reduced further portion of the plaint schedule property. Since the plaintiff has no other remedy, he has approached the court seeking appropriate reliefs. 3. Defendants 1 and 2 resisted the suit. They pointed out that the plaintiff has no cause action and the suit is only an experimental one. An old kayyala separated the property of the plaintiff and the defendants. When the defendants tried to put up the boundary wall along the kayyala, that was obstructed by the plaintiff and then the suit is laid with the idea of reducing a portion of the defendants' property into his possession. The matter was brought to the notice of the police and thereafter the compound wall was put up. The defendants have not annexed any portion of the property owned by the plaintiff to their property. They therefore prayed for a dismissal of the suit. S.A.907/1996. 3 4. Defendants 3, 5 and 6 filed separate written statements. According to them, the plaint schedule property is 22 cents in extent, 6 cents obtained under a sale deed and 16 cents obtained on the purchase certificate. The said 16 cents now belong to the defendants as per deed No.2151/1981. The entire 22 cents lies as a compact plot and it is in the joint enjoyment and possession of the plaintiff and defendants 3 to 6. In fact in their written statement, they support the plaintiff. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 to 5 and documents marked as Exts. A1 to A3 from the side of the plaintiff. The defendants had D.W.1 examined and Exts. B1 to B5 marked. Exts.C1 to C2(a) are the commission reports and plans. On an appreciation of the evidence in the case, the trial court came to the conclusion that the plaintiff had miserably failed to establish the case and accordingly dismissed the suit. The matter was carried in appeal by the plaintiff. The appellate court on an S.A.907/1996. 4 independent evaluation of the evidence found that the finding of the trial court was justified and accordingly dismissed the appeal. 6. In the Memorandum of Second Appeal the following questions of law are seen raised: “(1) In the facts of this case, whether the trial court and the lower appellate court are justified in discarding C1 and C1(a) report and acting upon C3 and C3(a) prepared by the same commissioner and surveyor especially when its finding is against the admission of the defendants. (2) Whether the appellate court was justified in deciding the matter without directing issuance of a fresh commissioner for the same purpose. (3) In the facts and circumstances of this case was it not proper on the part of the lower court to set aside C1 and C3 and ordered fresh commission especially when the same commissioner on measurement found the extent of plaint property differently?” S.A.907/1996. 5 7. Both the courts have found that there is no dispute regarding the fact that the property owned by the plaintiff is comprised in Sy. No.225/14B including road. Like wise there is no dispute regarding the fact that the property owned by the defendants lies in Sy. No.225/15. There is no case for the plaintiff that he owned any extent of land in any sub division except 14B. The Commissioner has prepared his report and plans. Initially when the objection was filed by the plaintiff, the commission report was remitted to the commissioner and finally Exts.C3 and C3(a) was filed by the Commissioner. 8. A perusal of Exts.C3 and C3(a) shows that it was prepared on the basis of the original sub division plan. 9. One may now have a look at the commission plan, namely, Ext.C3. The plaint schedule property is identified by the Commissioner and marked in blue shade. A small bit of land, shown in red shade having an extent of S.A.907/1996. 6 1.25 cents, is comprised in Sy. No.225/15. It may be remembered that the plaintiff has no claim that he owns any extent of land in Sy. No.225/15. 10. Learned counsel appearing for the appellant pointed out that it was obligatory on the part of the commissioner to ascertain the entire extent in Sy. No.224/14B and there after carve out the property obtained by the plaintiff, and that having not been done, the judgment and decree of the court below are unsustainable. 11. The contention has no merit whatsoever. As rightly noticed by both the courts below, the plaintiff has no case that he has any property in any survey number other than 225/14B. The Commissioner on measurement of the property as per the documents of the plaintiff found that the plaintiff possesses 19.250 cents of property equivalent to 7.80 ares. The claim of the plaintiff is that he owns 22 cents and that ought to have been identified. That contention has no basis. If actually only 19.250 cents of land are available, one fails to understand how the Taluk Surveyor or the S.A.907/1996. 7 commissioner can locate more than the extent available. In fact it is interesting to note that the plaintiff is seen possessing a portion of the land comprised in Sy. No.225/15, which in fact belong to the defendants. However, the defendants have clearly pointed out that they do not claim any right to the property situate on the eastern side of the compound wall put up by them. It appears that the claim of the plaintiff is that his property extents beyond the compound wall on the eastern side put up by the defendants. Such a contention cannot be countenanced at all for the simple reason that the entire property owned by the defendants is comprised in Sy. No.225/15. At the risk of repetition, one may notice that the plaintiff has no case that he owns any extent or that his document takes in any portion of the property comprised in Sy. No.225/15. 12. It was the defendants who had applied for issuance of the commission and got the commission report and sketch prepared. Both the courts below have found that there is absolutely no evidence to show that defendants 1 S.A.907/1996. 8 and 2 had trespassed into any portion of the plaint schedule property or that there has been any attempt on their part to trespass into the plaint schedule property. It is also interesting to note that the plaintiff has assigned 16 cents of property in favour of defendants 3 to 6, who are none other than his wife and children. That shows that the plaintiff does not have title to the entire plaint schedule property shown in the plaint. However, it has to be noticed that defendants 3 to 6 supported the plaintiff. Whatever that be, the concurrent findings of the courts below are that there was absolutely nothing to show that the defendants had reduced into their possession any portion of the property. The finding being essentially a finding on fact, no substantial question of law arises for consideration especially when there is nothing to show that the findings are perverse or unwarranted on the evidence on record. S.A.907/1996. 9 The result is that no substantial question of law arises for consideration in this Second Appeal. This Second appeal is without merits. Accordingly, it is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb. S.A.907/1996. 10 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 907 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 17.06.2010