IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 RSA.NO. 812 OF 2009() -------------------------------- AS.123/2007 OF II ADDL.DISTRICT COURT,ERNAKULAM OS.732/2000 OF II ADDL.M.C., ERNAKULAM .................... APPELLANT – APPELLANT – PLAINTIFF: ---------------------------------------------------- K.J.FERNANDEZ S/O. KOSMO FERNANDEZ, RESIDING AT H.NO.31/31-B THUPPASSERIL HOUSE, AMBELIPADAM ROAD VYTTILA, KOCHI 682 019. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S) - 2ND RESPONDENT – 2ND DEFENDANT: -------------------------------------------------------------------------- SMT.KAMALAM, W/O.SUGATHAN, RESIDING AT LAL VIHAR, AMBELIPADAM ROAD, VYTTILA, KOCHI 682 019. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.812 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of December, 2009 J U D G M E N T --------------------- Second Appeal arises from judgment and decree of learned Second Additional District Judge, Ernakulam in A.S. No.123 of 2007. That appeal arose from dismissal of O.S. No.732 of 2000 of the court of learned Munsiff, Ernakulam. Originally appellant sued for a decree for prohibitory injunction against respondent and her husband trespassing into the suit property described as 136 sq.links in Sy.No.348/1 and allegedly belonging to the appellant as per Ext.A1, assignment deed dated 16.5.2000. Appellant claimed that it is a small strip of land lying contiguous to his residential compound on the western side with property of respondent on the north (of the disputed strip of land). Appellant apprehended trespass by the respondent. Respondent contended that disputed property formed part of the land belonged to her as per Ext.A3, assignment deed dated 25.6.1981. She denied title and possession claimed by the appellant over the disputed property. In the meantime plaint was amended to incorporate a prayer for recovery of possession. Suit was decreed against respondent and her husband and they challenged the R.S.A. NO.812 of 2009 -: 2 :- judgment and decree in A.S. No.186 of 2003. Appeal was allowed and case was remanded with a specific direction to measure the properties with the assistance of a Taluk Surveyor. After remand appellant filed application to depute an Advocate Commissioner to measure the properties with the assistance of Taluk Surveyor. For some reason or other Taluk Surveyor was not available and hence a retired Surveyor (D.W.3) was appointed to assist the Commissioner (D.W.2) to measure the properties. Exhibits C2 and C2(a) are the report and plan prepared by D.W.2. Trial court observed that direction of the first appellate court in A.S. No.186 of 2003 has not been complied in letter and spirit in that service of the Taluk Surveyor was not availed for measurement of the properties and dismissed the suit. Appellant took up the matter in appeal. First appellate court referred to the contentions raised by the parties and the plan prepared by D.W.3 and held that there is no proper identification of the disputed plot of land. Accordingly the appeal was dismissed. That is under challenge in this Second Appeal. 2. Substantial questions of law urged in the Second Appeal are whether courts below were right in dismissing the suit holding that appellant has not established his title to the suit property and whether R.S.A. NO.812 of 2009 -: 3 :- the finding that there is no proper identification of the property is legal and correct. Learned counsel for appellant contends that it was not the fault of appellant that the Taluk Surveyor was not available or not appointed for measurement of the property and hence trial court was not justified in non-suiting the appellant for the reason of non- availability of Taluk Surveyor. It is also contended by learned counsel that finding of the first appellate court regarding identity of the property is not legal or correct. 3. I am not inclined to think that it was due to the fault of appellant that Taluk Surveyor was not available or was not appointed for measurement of the property. It was the responsibility of trial court to appoint the Taluk Surveyor if it thought that direction of the first appellate court in that regard is to be complied with in letter and spirit. But I find that the first appellate court has not confined the reasoning for dismissing the appeal to the failure to measure the property by the Taluk Surveyor, instead it has gone into the merits of the case. 4. Dispute is concerning 136 sq.links of land which lies towards the south of the property admittedly belonging to the respondent. Property admittedly belonging to the appellant is on the R.S.A. NO.812 of 2009 -: 4 :- further west. It is also not disputed that on the south of the disputed strip of land is the public road and making use of the disputed portion also road has been metalled and tarred. First appellate court referring to the reports and plans observed that length of the disputed strip of land has not been properly measured and that the disputed property is not properly identified. It is interesting to note that appellant and respondent got their respective properties from the common owner and the assignment in favour of respondent was first in point of time as per Ext.A3 dated 25.6.1981 while appellant got property only on 16.5.2000 as per Ext.A1. Southern boundary of the property admittedly belonging to respondent as per Ext.A3 is described as the 'pathway' and if the contention of appellant were to be accepted, in between that pathway and the property admittedly belonging to respondent lies the disputed strip of land having a total extent of 136 sq. links which the appellant claimed he got as per Ext.A1. Boundary descriptions given in Ext.A3 shows that southern boundary of the property assigned as per Ext.A3 is upto the pathway on the southern side. In these circumstances I am satisfied that first appellate court was correct in disallowing the prayer for recovery of possession. On hearing counsel for appellant and going through the judgment under R.S.A. NO.812 of 2009 -: 5 :- challenge and also referring to the relevant documents produced by learned counsel for appellant I do not find any substantial question of law involved in the matter requiring admission of this Second Appeal. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.812 of 2009 -: 6 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.812 OF 2009 =================== J U D G M E N T 3RD DECEMBER, 2009