IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 RSA.No. 953 of 2008() --------------------- AS.22/2003 of SUB COURT, THIRUVALLA OS.280/1997 of MUNSIFF's COURT, THIRUVALLA .................... APPELLANT/APPELLANT/1ST DEFENDANT:- HARIDAS PANICKER, S/O. SANKARAN NAIR, AREEKUZHIKAL HOUSE, VALANKARA MURI, PURAMATTAM VILLAGE, MALLAPPALLY TALUK, PRESENTLY RESIDING IN CANADA, HARIDAS PANICKER, 275, BROWN SWEEK, C.R.CENT, LONDON ONTORIO, CANADA, REP. BY ITS POWER OF ATTORNEY HOLDER VINAYA KUMAR, AREEKUZHIKAL HOUSE, VALANKARA MURI, PURAMATTAM VILLAGE. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN ABRAHAM M GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD RESPONDENT/RESPONDENT/PLAINTIFF:- DIVAKARA PANICKER, NEPHEW OF SANKARA PILLAI, KOCHUZHATHILHOUSE, VANNIKULAM MURI, PURAMATTAM VILLAGE, MALLAPPALLY TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/12/2008, ALONG WITH R.S.A NO.1000 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. Nos. 953 & 1000 of 2008 ========================= Dated this the 2nd day of December, 2008. JUDGMENT The appellant (Haridas Panicker) in R.S.A No.953 of 2008 was the 1st defendant in O.S. No. 280 of 1997 on the file of Munsiff's Court, Thiruvalla. He is residing at Canada. His father Sankaran Nair was the 1st plaintiff in O.S. No. 255 of 1997 on the file of the Munsiff's Court, Thiruvalla. Consequent on the death of Sankaran Nair, the appellant's power of attorney holder (Vinayakumar) was impleaded as the 2nd plaintiff in O.S. No. 255 of 1997. The appellant in R.S.A No. 1000 of 2008 is the said 2nd plaintiff in O.S. No. 255 of 1997. O.S. No. 280 of 1997 filed by Divakara Panicker was for fixation of boundary of plaint schedule item No. 1 shown as admeasuring 2 cents. The plaint schedule item No.2 in O.S. No. 280 of 1997 is shown as the property of the 1st defendant (Haridas Panicker) admeasuring 22 cents. O.S. No. 255 of 1997 was a suit filed by the said Sankaran Nair (on whose death by the said Vinaya Kumar, the appellant in R.S.A. No. 1000 of 2008 was impleaded) for an injunction in respect of the plaint schedule property therein which consists of item Nos.1 and 2 of O.S. No. 280 of 1997. 2. The case of the appellant (Haridas Panicker) is as follows:- As per Ext.B2 partition deed dated 06.10.1966 he obtained 22 R.S.A. Nos. 953 & 1000 of 2008 :2: cents. Thereafter, he obtained another 22 cents as per Ext.B1 Will executed by his mother on 23.03.1979. The appellant has altogether 44 cents comprised in Sy. No. 797/2 of Puramattom village. The 2 cents of land shown as plaint schedule item 1 in O.S. No. 280 of 1997 is actually part of the said 44 cents. During the re- survey operations in the year 1994, the extent of the property was shown as 16.80 Ares corresponding to 41.496 cents in R.S. 173/5. Taking advantage of that, Divakara Panicker has filed O.S. No. 280 of 1997. Without proving his title, the plaintiff in O.S No. 280 of 1997 is not entitled to get the boundary of plaint schedule item No.1 fixed. 3. The courts below have held that the plaintiff in O.S. No. 280 of 1997 obtained the plaint schedule item No. 1 as per Ext.A5 (a) Will dated 14.02.1997 executed by his mother Janaki Amma, who in turn get the same under Ext.A3 Will dated 08.12.1975 executed by her brother Sankara Panicker. 4. A commission was deputed by the trial court to identify the properties. The Commissioner identified the plaint schedule item No.1 in O.S. No. 280 of 1997 as the yellow shaded plot shown as plot HIJFG admeasuring 1.976 cents and the plaint schedule item No. 2 as green shaded plot admeasuring 39.520 cents shown as plot ABCDEFJI in Ext. C1(a) plan prepared with survey assistance. R.S.A. Nos. 953 & 1000 of 2008 :3: It is true that the Commissioner stated before the court that the identification was as pointed out by the plaintiff. But it was a survey commission and the Commissioner was assisted by the Taluk Surveyor and the full measurements of both properties are also given in Ext.C1(a) plan. The trial court has observed in paragraph 10 of the judgment that the mere fact that it was the plaintiff who had pointed out the plaint schedule item No.1 to the Commissioner is of no significance, since the prior title deed of item No.1 gives clear identity and the existence of 2 cents of property which is scheduled as item No.1 in the plaint in O.S. No. 280/97. Regarding the plaintiffs' title over the said property also the trial court observed as follows:- “In a suit for fixation of boundary the primary requirements are that the plaintiff should have title over the property in which he claims right and the said property should lie adjacent to the defendant's property. As I have stated earlier the title of the plaintiff remains proved through Exts.A3 and A5. Further there is evidence in Exts.B1 and B2 with regard to the exclusion of 2 cents in schedule of Ext.A3 Will deed. If the case advanced by the 1st defendant is true there was no necessity to exclude 2 cents in Sy. No. 797/2 while preparing Ext.B1 and B2 documents.” 5. Even though from the title deeds the plaintiff in O.S. No. 280 of 1997 is entitled to 2 cents, the Commissioner found item No.1 as admeasuring 1.976 cents. Same is the position with regard to the appellant's property. It was also found to be lesser in extent than the actual extent as per the title deeds. Ext. C1(a) plan shall R.S.A. Nos. 953 & 1000 of 2008 :4: form part of the decree. On appeal preferred by the appellant before the lower appellate court that court has confirmed the decree passed in O.S. No. 280 of 1997. Consequently the suit O.S No. 255 of 1997 seeking injunction in respect of both items 1 and 2 of O.S. No. 280 of 1997 has been dismissed. No question of law, much less, any substantial question of law arises for consideration in these Second Appeals. The questions of law formulated in the memoranda of Second Appeal also do not arise for consideration in these Second Appeals which are accordingly dismissed in limine. Dated this the 2nd day of December, 2008. V. RAMKUMAR, JUDGE. rv R.S.A. Nos. 953 & 1000 of 2008 :5: