IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 SA.No. 635 of 2002() -------------------- AS.24/1999 of ADDL. DISTRICT COURT, PARAVUR OS.398/1993 of MUNSIFF COURT, PARAVUR .................... APPELLANT/ RESPONDENT/RESPONDENT: ------------------------------------ 1. THOMAS, S/O. VARGHESE, THENGAPURAKKAL, CHIRAKKA MURI, VARAPUZHA VILLAGE, PARAVUR TALUK. 2. REETHA, W/O. THOMAS, THENGAPURAKKAL, CHIRAKKA MURI, VARAPUZHA VILLAGE, PARAVUR TALUK. 3. GIRLY, D/O. THOMAS, THENGAPURAKKAL, CHIRAKKA MURI, VARAPUZHA VILLAGE, PARAVUR TALUK. BY ADV. SRI.T.O.XAVIER RESPONDENT/ RESPONDENT/PLAINTIFF: ------------------------------------ NICLAVOS, S/O. FRANCIS, KALLOORU, CHIRAKKA MURI, VARAPUZHA VILLAGE, PARAVUR TALUK. ADV. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.635 of 2002A --------------------------------------- Dated this 25th day of November, 2009 JUDGMENT In this regular second appeal attempt of appellants/defendants is to unsettle the concurrent verdict of the courts below allowing respondent to fix the southern boundary of the suit property and recover possession of a portion of that property which was allegedly trespassed upon by the appellants. Respondent instituted O.S.No.398 of 1993 in the Court of learned Munsiff, North Paravur. His case is that plaint A schedule, described as 83 cents was acquired by him as per Ext.A1, assignment deed No.71/1972 and while he was in possession and enjoyment of that property, appellants trespassed into a portion of the property towards its southern side, described in the plaint B schedule. Appellant No.1 has property on the south of A schedule while appellant No.3 has property on the west of the property of appellant No.2. Respondent claimed that on the southern boundary of suit property, there were stones which were removed by the appellants who trespassed into the portion of the suit property. Appellants denied that respondent was in possession of that much extent of land as stated in plaint A schedule. They denied that there is any property as plaint B schedule. They denied possession of the B schedule. They claimed that there is physical boundary between properties of themselves and the respondent. Learned Munsiff basing S.A.No.635 of 2002 2 on the evidence which includes the report and plan submitted by the Advocate Commissioner found that the yellow shaded portion in Ext.C1 (a) formed part of the property of respondent and that portion was trespassed upon by the appellants. Accordingly recovery of that portion of the property was allowed and the southern boundary of the suit property was also fixed. That judgment and decree were confirmed by the first appellate court. 2. The substantial questions of law framed for a decision in this appeal are; (i) Whether the boundary has the age of 50 years and the appellant is entitled to easement right. (ii) Whether the trees standing in the B schedule properties belong to the appellant. (iii) Whether the defendant/appellant has actually encroached upon the plaint schedule property. (iv) Whether the commissioner is bound to give reasons for his findings and whether a commission report without proper resurvey can be accepted on liable to be set aside? (v) Whether that appellants are in possession of respondent's land can be ascertained without measuring the neighbouring properties. (vi) Whether any credibility can be given to the oral evidence S.A.No.635 of 2002 3 of the commissioner when there was material omission in the report. (vii) Whether a commission report which was submitted without ascertaining the matters that was directed to be ascertained can be considered by the court below? 3. It is contended by learned counsel for appellants that Exts.C1 and C1(a) do not give sufficient data to decide the entitlement of the respondents as to the property he claimed, that the plan does not make any reference to the property admittedly belonging to the appellants and that based on Exts.C1 and C1(a) courts below were not justified in accepting the case of the respondents. Learned counsel for respondent in response would contend that the properties were measured by the Advocate Commissioner with reference to the title deeds relied on by the parties as well as survey records and boundary has been properly fixed by the Commissioner with which no interference is required. 4. Ext.A1 is the title deed on which respondent placed reliance. It is in respect of 83 cents. It is true that the said 83 cents is a portion of a larger extent (1.86 acres). When examined as DW3 the Advocate Commissioner admitted that he has not separately shown plaint A schedule in Ext.C1(a) though he claimed that he had separately identified A schedule property as well. That, the 83 cents claimed by the respondent as per Ext.A1 has not been separately S.A.No.635 of 2002 4 marked in Ext.C1(a) in my view does not affect case of the respondent since it is not disputed that the 83 cents formed part of total of 1.86 acres towards its southern portion and admittedly property of the appellants is situated on the further south. Hence the dispute can be resolved by fixing the southern boundary of the said 1.86 acres (which is also the southern boundary of the A schedule property). Ext.C1(a) the yellow shaded portion is 1.25 cents which according to the Commissioner formed part of 83 cents belonging to the respondent. Going by Ext.C1, Commissioner has measured the properties of appellants and the respondent based on the documents of title produced by them and the survey records. I do not forget that appellants had preferred objection to Exts.C1 and C1(a) but the application to set aside the same (I.A.No.1808 of 1995) came only at the fag end of the proceedings of the trial court. That application was dismissed by the trial court. I have gone through the order on I.A.No.1808 of 1995 and find that learned Munsiff has stated reason for dismissing that application, reason being that the contentions raised in the objection to Exts.C1 and C1(a) and the statements in support of I.A.No.1808 of 1995 were on diametrically opposite lines. Appellants have not taken steps at the appropriate time to get rid of Exts.C1 and C1(a) if they were really aggrieved by it nor was the Surveyor who measured the properties examined as witness by the appellants. In S.A.No.635 of 2002 5 the circumstances, I do not find reason to reject Exts.C1 and C1(a). 5. Trial court allowed recovery of possession of the 1.250 cents, the yellow shaded portion in Ext.C1(a) and permitted the southern boundary of the suit property to be fixed as shown in Ext.C1(a) based on the measurement made by the Advocate Commissioner with the assistance of the Surveyor. I stated that there is no reason to interfere with Exts.C1 and C1(a). It follows that the trial court rightly allowed recovery of possession of the yellow shaded portion in Ext.C1(a) and permitted fixation of boundary along the southern boundary of the suit property as shown in Ext.C1(a). I answer the substantial questions of law as above. The second appeal is dismissed. No cost. THOMAS P JOSEPH, JUDGE Sbna/