IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 SA.No. 749 of 1996(E) --------------------- AS.107/1990 of DISTRICT COURT,TRIVANDRUM OS.1709/1986 of I ADDL.MUNSIFF COURT,TRIVANDRUM .................... APPELLANTS/APPELLANTS/DEFENDANTS: --------------------------------------------- 1. THULASI BAI, RESIDING AT BADAYAL VILAKATHU VEEDU, MUTTAKKADU, THIRUVALLAM. 2. RAJAYYAN, S/O.YOHANNAN, RESIDING AT -DO- -DO- BY ADV. MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE MR.P.B.KRISHNAN RESPONDENT/RESPONDENT/PLAINTIFF: -------------------------------------------- KESAVAN, S/O.VELAYUDHAN, RESIDING AT OPPANAMADOM, THIRUVALLAM, THIRUVANANTHAPURAM. ADV. MR.L.MOHANAN MR.D.SAJEEV THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 749 of 1996(E) ORDER ON C.M.P.NO.1583/1996 DISMISSED. 12.8.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.S TO JUDGE. HARUN-UL-RASHID,J. ------------------------------ S.A.NO.749 OF 1996 ------------------------------- DATED THIS THE 12TH DAY OF AUGUST, 2010 JUDGMENT Defendants in O.S. No. 1709/86 on the file of the Ist Additional Munsiff's Court, Thiruvananthapuram are the appellants. The appeal is directed against the judgment and decree in A.S.No.107/90 on the file of the District Court, Thiruvananthapuram. The suit was filed for declaration of title and possession, putting up of boundaries and for perpetual injunction. The trial court decreed the suit declaring plaintiff's title and possession over plaint B and C schedule properties. The plaintiff is allowed to put up boundary through DCB and EF line in Ext.C2(a) plan. The trial court further declared that the plaintiff is entitled to lateral support for the plaint B and C schedule properties from the plaint D schedule. An order of perpetual injunction was also passed restraining the defendants from blasting rocks in the plaint D schedule property and from -2- S.A.749/1996 doing any act of nuisance causing removal or damage to the lateral support to the plaint B and C schedules and from causing any obstruction to the peaceful possession and enjoyment of plaint B and C schedules by the plaintiff. The decree and judgment of the trial court was confirmed and the appeal was dismissed by the Lower Appellate Court. The parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. Plaintiff claims title and possession over plaint B and C schedule properties. Admittedly, D schedule property belongs to the defendants. Plaint B, C and D schedules put together forms part of plaint A schedule. The grievance of he plaintiff is that the defendants have been recently blasting rocks in plaint D schedule, and the same is disastrously affecting the lateral support to the plaint B and C schedules. He claimed that he is entitled to have the lateral support from the D schedule to the B and C schedules. It is also his case that the defendants as -3- S.A.749/1996 owners of the servient tenement is bound to see that the support is now withdrawn. The plaintiff therefore prayed for the aforesaid reliefs. 3. The defendants contested the suit. They filed written statement denying the plaint averments. The defendants inter alia contended that the plaintiff is not in possession and enjoyment of the plaint B schedule, that plaint C schedule property is not identifiable, that 22 cents are described as a portion of A schedule with ulterior motives and mala fide intentions, that the defendants are in possession and enjoyment of 22 cents along with 30 cents in the same survey number totalling to 52 cents and that 52 cents is a compact plot contiguous in nature. The grievance of the defendants is that the attempt of the plaintiff is to establish that B schedule 8 cents is a portion of 52 cents. The defendants prayed for dismissal of the suit. 4. The suit properties are portions of properties comprised in Sy.No.180/2A and B. Sy.No.180/2 A and B -4- S.A.749/1996 having an extent of 16 acres and 83 cents. Ext.A9 settlement deed of the year 1122 M.E. was executed by one Daniel in favour of his children. Decoster is the 4th party in Ext.A9. He was allotted D schedule in Ext.A9. D schedule is having an extent of 3 acres and 20 cents which is a portion of 16 acres and 83 cents. Ext.A9 settlement deed is admitted by DW1. The plaintiff and defendants admitted that they have obtained properties from the aforesaid 3 acres and 20 cents. Plaint A schedule is 77 cents covered by Ext.A6 mortgage. The mortgage with respect to 77 cents is admitted in paragraph 6 of the written statement. Exts.A6 and A7 purakkadom were followed by Ext.A5 sale deed. Ext.A5 is in favour of Rosammal and Thomson executed by the wife and children of Daniel Decoster. Thomas and Rosammal got absolute right over the plaint A schedule property. Subsequently, the property was assigned to a third person under Ext.A3 sale deed. The assignor of Ext.A3 sale deed executed Ext.A1 sale deed in favour of the plaintiff. Thus the plaintiff got title and -5- S.A.749/1996 possession over B schedule property by virtue of Ext.A1 sale deed. 5. The plaint C schedule is the western 47 cents in A schedule. The right over the C schedule was sold by Rosammal and others in favour of the plaintiff as per Ext.A2 sale deed. Thus the plaintiff got title and possession over C schedule property as well. 6. The trial court and the Appellate Court, after elaborately discussing and examining the documents of title, held that the plaintiff is having title and possession over plaint B and C schedule properties. The main contention raised by the appellants is that the plaint schedule property is not identifiable and that there is no such property as B and C schedules as described in the plaint. As I said earlier, plaint A schedule is a plot within the 3 acres and 20 cents with very specific side measurements. Plaint B, C and D schedules are within the A schedule. The trial court as well as the Appellate Court held that -6- S.A.749/1996 plaint B, C and D schedules could be very well located with the help of the measurement in the defendants own Ext.A8 release deed, namely, Ext.B1 document and other documents. Both the courts below found that there is no difficult in locating or identifying the plaint B, C and D schedule properties. Both the courts below held that the appellants/defendants could not even dispute the identity because of their admission in Ext.A8 document. In the light of the contentions that plaint B and C schedules are not identifiable at the instance of the plaintiff, a Commissioner was deputed to measure and identify the properties with the help of survey plan. The Taluk Surveyor also assisted the Commissioner in locating the properties. Exts.C2 and C2(a) are the report and plan. The Commissioner with the assistance of the Surveyor located and identified the plaint A, B, C and D schedule properties. Both the courts below also found that nothing was brought out in the examination of the Commissioner to discredit the commission report and location of -7- S.A.749/1996 the property in the plan. In such circumstances, both courts repelled the contention of the appellants and held that the property is identifiable. 7. The Lower Appellate Court also examined the question in detail and arrived at the very same conclusions based on the oral and documentary evidence. The Lower Appellate Court also discussed and examined the main contentions of the appellants that the plaint schedule properties are not identifiable and the Commissioner had not properly located the properties. 8. The Lower Appellate Court, after discussing the documents of title produced by both sides, observed that the property is described in the document with reference to link measurements and that the description of property in the documents would clearly show that 22 cents released in favour of the 2nd defendant and her mother as per Ext.B2 is an identifiable property. The Court also observed that in all these documents the property was described in link measurements and as such there is -8- S.A.749/1996 no difficulty to identify each and every plot with the help of the survey plan. The Appellate Court further held that in Ext.A9 document also it is specifically mentioned that 3 acres and 20 cents on the south-eastern portion of the entire property could be identified. Admittedly, the plaintiffs as well as the defendants have obtained properties from the above 3 acres and 20 cents. The Appellate Court also held that the Commissioner has correctly located 3 acres and 20 cents of property in Ext.C2(a) plan and that the plan also specifically earmarks plaint ABC and D schedules. 9. Considering the entire evidence and circumstances, the contention of the learned counsel for the appellants that the properties are not identifiable and are not properly located is without any substance. Both the courts below found that the contention is not sustainable. Both the courts below concurrently found that the Commissioner has identified and located plaint A schedule as well as plaint B, C and D schedules. The courts -9- S.A.749/1996 below also relied on the Commission report and other evidence and found that the blasting of rocks from the D schedule was causing damages to the plaint B and C schedule properties so as to destroy the lateral support. On the basis of the findings recorded, the trial court granted a decree as prayed for and the same was confirmed by the Appellate Court. 10. In the circumstances, I am of the view that no valid grounds are made out by the appellants for interference in the second appeal. The questions were decided solely based on the evidence, facts and attendant circumstances. No question of law much less any substantial questions of law arise for consideration in the second appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv