IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 SA.No. 121 of 2002() -------------------- AS.114/1996 of I ADDL. DISTRICT COURT, KOLLAM OS.153/1982 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT(S): APPELLANT-PLAINTIFF --------------------------------- V.LAKSHMI KUTTY, LEKSHMI VILASATH, KADATHOORUMURI, KULASEKHARAPURAM VILLAGE. BY ADV. SRI.SUBHASH CYRIAC ADV. SRI.K.K.SIVARAMAN RESPONDENT(S): RESPONDENTS-DEFENDANTS ------------------------------------- 1. SADASIVAN, NEDUMTHARAYIL VEEDU, KADATHOORU MURI, KULASEKHARAPURAM VILLAGE. 2. VIJAYAMMA, NEDUMTHARAYIL VEEDU, KADATHOORU MURI,KULESEKHARAPURAM VILLAGE. 3. KRISHNAN, CHOTTIYAR, NEDUMTHARAYIL, KADUTHOORU MURI, KULASEKHARAPURAM VILLALGE. 4. K.VIJAYAN, SWAROJ BHAVANAM, KARUNAGAPPALLY MURI, KULASEKHARAPURAM VILLAGE. 5. K.SOMAN, SWARAJ BHAVANAM, KARUNAGAPPALLY MURI, KARUNAGAPPALLY VILLAGE. THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.121 OF 2002 F -------------------------------- Dated this the 21st day of October 2010 JUDGMENT Plaintiff in a suit for fixation of boundary and recovery of possession is the appellant. Concurrent decision rendered by the two courts below non-suiting her, is challenged in the second appeal. She claimed title over two items of properties under A1 and A2 sale deeds and possession thereof was sought to be substantiated by producing A3 tax receipt. Her claim over the above properties was resisted by the defendants, who, in fact, had raised inconsistent pleas as to having tenancy and also of prescribing title by adverse possession. The appellant/plaintiff amended the suit to claim a further relief of recovery of possession alleging of subsequent trespass by the defendants over the properties and putting up of a structure therein. Both the courts, on the materials placed, negatived the claims canvassed by the plaintiff, and she was nonsuited. Correctness of the decision so rendered is sought to be impeached in the second appeal. 2. The records of the case have been collected to examine the entertainability of the appeal. Perusing the records with reference to the judgments rendered by the courts below and also the submissions made by the learned counsel for the appellant/plaintiff, I find the appeal does not involve any question of law, leave alone any S.A No.121 OF 2002 F - 2 - substantial question of law for receiving it by this court, to have a disposal on merits after issuing notice to the respondents. The title deeds, on which the appellant/plaintiff relied, showed the boundaries of the two properties only with reference to the survey numbers, with no further demarcation whatsoever, and the case set up by the plaintiff as to subsequent trespass over a portion of the property by the defendant was found untrue on the materials placed, which indicated that long prior to the institution of the suit, the structures allegedly as put up by the plaintiff subsequent to suit, were in existence and occupied by the defendants, weighed with both the courts to reach a conclusion that the plaintiff is not entitled to the reliefs canvassed in the suit. It is also seen that if not the whole, but major portion of the properties described in the plaint, as determined by the advocate commissioner deputed by the court, with buildings comprised therein, are under the occupation of the defendants. Though the plaintiff had moved an amendment in the suit to seek recovery, it is seen, what was the property sought to be recovered, which is alleged to have been trespassed upon by the defendants after institution of the suit, has not been separately scheduled, nor stated in the plaint. A portion of the suit property was trespassed and a structure was put up therein by the defendants, was the case advanced by the plaintiff to seek the additional relief of recovery of possession by way of amendment. She had no case that the whole S.A No.121 OF 2002 F - 3 - property was trespassed upon and reduced into possession by the defendants. Suit was initially filed for injunction and for fixation of boundary, but, later, amended for recovery also, but, without specifying the area alleged to have been trespassed upon by the defendants. In the incomplete data as to which was the area trespassed upon by the defendants and determination of that area, none of the reliefs canvassed in the suit could have been granted to the plaintiff, especially in a case where the title deeds refered the boundaries of the properties only by survey numbers and that alone. Though the claim of recovery under the amended suit was based on title, it is seen that the plaintiff did not move for a declaration of her title, taking such steps as were necessary for identifying her property, as covered under A1 and A2 sale deeds. The materials tendered in the case would also show that some portions in the survey number, within which the plaint items also fall, had been acquired by the Railways, which, in fact, was set up by the defendants to resist the suit claim as well. When that be the facts on the materials tendered in the case, dismissal of the suit by the trial court as confirmed by the lower appellate court negativing the claims of the plaintiff does not warrant any interference. Appeal is dismissed. S.S.SATHEESACHANDRAN vdv JUDGE