IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 RSA.No. 1079 of 2008() ---------------------- AS.25/2007 of SUB COURT, QUILANDY OS.64/2002 of MUNSIFF-MAGISTRATE COURT, PERAMBARA .................... APPELLANTS -------------------- 1. PULIHENPURAKKAL LEELAMMA MATHEW, D/O.MATHAI, AGED 47 YEARS, SWASTHAM, CHANGAROTH AMSOM, AVADUKKA DESOM, PO.CHANGAROTH KOYILANDI TALUK, KOZHIKODE. 2. PUTHENPURAKKAL SAJEESH KOSI, S/O.JOY, 29 YEARS, AGRICULTURIST,, SWASTHAM, CHANGAROTH AMSOM, AVADUKKA DESOM, PO.CHANGAROTH, KOYILANDI TALUK, KOZHIKIODE. BY ADV. SRI.P.P.JACOB RESPONDENT(S): --------------- 1. PUTHENPURAKKAL KUNJACHAN @ P.C.KURIAN, S/O.THOMAS, 60 YEARS, AGRICULTURIST CHANGAROTH AMSOM, AVADUKKA, DESOM, KOZHIKODE. 2. ELIKKUTTY, D/O.JOSEPH, 54 YEARS, SWASTHAM, R/AT.POOKKOL VEETTIL, NENMERI VILLAGE AMBUKUTHI DESOM, THOMARIMALA, BATHERI TALUK. 3. KANNADIKKAL VEETTIL SHEENA SHIJU, D/O.GEORGE, 34 YEARS, SWASTHAM PANDICHIRA VILLAGE ADIKKOLI DESOM, PO.AMARAKUNI, ADIKKOLI, BATHERI TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 1079 of 2008 * * * * * * * * * * * * * * * * * * Dated: 11-11-2008 JUDGMENT The plaintiffs in O.S. No. 64 of 2002 on the file of the Munsiff-Magistrate's Court, Perambra are the appellants in this Second Appeal. The said suit was one for fixation of the southern boundary of plaint B schedule items 1 and 2. According to the plaintiffs, plaint A schedule item No.1 admeasuring 21.2 cents belongs to the first plaintiff by virtue of Ext.A1 dhananischaya deed dated 3-1-2002 and item No. 2 of the plaint A schedule property having an extent of 19 cents belongs to the 2nd plaintiff as per Ext.A2 registered assignment deed dated 2-12-1995. It was for fixing the southern boundary of the said properties that the suit was filed. 2. The suit was resisted by the defendants contending inter alia that the plaintiffs have no title or possession over the disputed strip of land lying towards the southern extremity of the plaint A schedule item Nos. 1 and 2 and, therefore, the prayer for fixation of boundary as prayed for was not sustainable. R.S.A. NO. 1079 of 2008 -:2:- 3. The trial court issued an advocate Commissioner to locate the properties with survey assistance. The Advocate Commissioner finally submitted Ext. C3 plan and C4 report with the assistance of the Taluk Surveyor. As per the said plan and report, plaint A schedule item Nos. 1 and 2 were identified as plot H and C. Plot “E” having an east-west measurement of 84.5 metres and a north-south measurement of 3.9 metres at the eastern end and tapering towards west lying to the south of plot H and plot D having an east-west measurement of 42.2 metres and north-south measurement of 1.3 metres at the western end and tapering towards east and lying as the southern boundary of plot “C” are the two strips of land which were in dispute. These narrow strips of land are located between plots H and C on the north and plots F and G on the South. The Commissioner noted a jeep road along plot D and the existence of a stone wall to a height of one foot along the northern extremity of plot E. The plaint A schedule properties were originally shown as comprised in R.S. 2/1A1. Pending suit, the plaintiff got the survey numbers corrected as R.S. 2/IA2. Going by the Commissioner's report and plan the disputed plots E and D are R.S.A. NO. 1079 of 2008 -:3:- in RS 2/1A2 which is the survey number for plots H and C belonging to the plaintiffs. Survey numbers of plots F and G belonging to the defendants and situated to the south of the disputed strips of land is R.S. 2/1A1. Based on the fact that the disputed strips of land identified as plots E and D were shown comprised in R.S. 2/1A2, it was contended that the plaintiffs has title over the said strips of land as well and, therefore, the boundary is to be fixed along the southern boundary of plots E and D. The courts below did not accede to the said prayer noticing that the plaintiffs were not found in possession of the disputed strips of land identified as plot E and D. In plot D there was the existence of a jeep road used by the defendants noted by the Commissioner and in plot D there was a stone wall to a height of one foot along its northern boundary. There was no prayer for recovery of possession of plots D and E which were not in the possession of the plaintiffs. This persuaded the courts below to reach a conclusion that the plaintiffs were not entitled to have the boundary fixed along the southern extremity of plots E and D and that the boundary could be fixed only along the northern extremities of the said plot , that is, along the red R.S.A. NO. 1079 of 2008 -:4:- line shown in Ext. C3 plan. The said finding is a pure finding of fact which cannot be interfered with in this Second Appeal since no question of law much less any substantial question of law, arises for consideration in this Second Appeal. This Second Appeal is accordingly dismissed. It is made clear that the decree passed in this case will not preclude the plaintiff from seeking recovery of possession of plots E and D if so advised. Dated this the 11th day of November 2008. V. RAMKUMAR, (JUDGE) ani.