IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 SA.No. 851 of 2000(B) --------------------- AS.43/1996 of SUB COURT, MUVATTUPUZHA OS.436/1991 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------------------------------------ 1. K.T.BABY, S/O.THOMMAN, KATTOKKARAYIL, PIRAVOM VILLAGE, MUVATTUPUZHA, NOW RESIDING IN KATTOKKARAYIL, MUTHAYIL PARAMBU, EROOR SOUTH P.O., TRIPUNITHURA. 2. MARIAMMA, W/O.K.T.BABY, RESIDING DO. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT/RESPONDENT/PLAINTIFF: ----------------------------------------------------------- U.P.MATHUKUTTY, S/O.PAILEE URAKKATTIL, URAKKATTIL HOUSE, PAZHOOR KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.PEEYUS A.KOTTAM THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P.BHAVADASAN, J. ---------------------------- S.A.No. 851 of 2000 --------------------------------- Dated this the 8th day of February, 2011 JUDGMENT Undaunted by the concurrent findings against them the defendants in O.S.No.436/1991 before the Munsiff's Court, Muvattupuzha have come up in appeal. 2. It is admitted fact that the property originally belonged to the father of the plaintiff, and had a total extent of 25 cents. The father of the plaintiff gifted 8 cents to plaintiff and 17 cents to his brother. The property including the plaint schedule property was obtained by the plaintiff as per gift deed No.1512/1978 included in C schedule therein. The extent of property is 8 cents in Sy.No.598/8. As per the same gift deed, 17 cents of property was gifted to the plaintiff's brother in A schedule therein. On the allegation that defendants have trespassed into the property of the plaintiff and reduced a portion into their possession the suit was laid for declaration and recovery of possession on the strength of title. 3. The defendants resisted the suit by pointing out that they have never trespassed into any portion of the plaintiff's property. There are well defined boundaries separating the two properties. It is pointed out that out of the total extent of 25 cents, only an extent of 22 ½ S.A.No. 851 of 2000 2 cents is available in the site. Thereupon, the deficit in extent of property was decided to be proportionately suffered by the plaintiff and his brother and the available extent of property was taken proportionally. On the basis of these contentions, they prayed for dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The plaintiff adduced no evidence. The first Defendant was examined as DW1 and Ext.B1 was marked. Exts. C1 and C1(a) are the commissioner's report and plan. Ext.B1 is a letter produced by the defendant in court below. 5. On the basis of commissioner's report the lower court decreed the suit. In appeal the lower appellate court concurred with the trail court and hence this Second Appeal. 6. Notice has been issued on the following substantial questions of law: 1. Whether the courts below were correct in law in decreeing declaration of title in favour of the plaintiff in regard to 500 sq.links as in C1(a) plan in view of the objections filed to C1 and C1(a) by the appellant. 2. Whether the courts below were correct in law in not considering the objections filed to the report and plan of the commissioner. 3. Whether the courts below were correct in decreeing the suit as though it was a suit for fixation of boundaries. S.A.No. 851 of 2000 3 4. Assuming that there is a deficiency in the area in possession of the respondent, whether the courts below were correct in decreeing 500 sq. links ie, 200 in excess of even the extend found by the commissioner. 7. The findings and conclusions by the court below are clearly unsustainable both on facts and on law. The plaintiff's claim is based on his document of title and his further complaint is that the defendant had demolished a portion of the compound wall on the eastern side of the plaintiff's property. However, the plaintiff adduced no evidence either documentary or oral. His allegation of trespass remained unsubstantiated. 8. It is strange to note that both the courts below decreed the suit based on certain statements contained in the written statement. One may remember here that the plaintiff had specific claim in respect of 8 cents of property. True, both the plaintiff as well as the defendants obtained property from a common predecessor in interest. Before the execution of the document in favour of the plaintiff and his brother the properties were lying contiguously having an extent of 25 cents. When the document in favour of the plaintiff and the brother was executed, the property was divided on the assumption that there was an extent of 25 cents and so divided into two portion having an extent of 8 cents S.A.No. 851 of 2000 4 and 17 cents. Later 17 was purchased by the defendants. The defendants had pointed out that when the property was measured at the time of purchase, it was found that the total extent is 22½ cents. Defendant had also pointed out the shortage in extent was agreed to be shared proportionately by the parties. The court below relying on these statement granted a decree in favour of the plaintiff. 9. The courts below conveniently forgot that the suit was one for declaration of title and recovery of possession and other reliefs. The plaintiff has to succeed on his merits of the case. He cannot take advantage of the weakness of the case without adducing any evidence, to show that defendants in fact where holding the property which belongs to the plaintiff. He did not even produce his document of title. The second appeal is allowed. The judgment and decree of the courts below are set aside and the suit shall stand dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln