IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 RSA.No. 289 of 2009() --------------------- AS.76/2007 of SUB COURT, PERUMBAVOOR OS.12/2003 of MUNSIFF'S COURT, KOLENCHERRRY .................... APPELLANTS/FIRST AND THIRD APPELLANTS/1st AND 3rd PLAINTIFFS: -------------------------------------------------------------------------------- 1. SUMATHY, AGED 68 YEARS, W/O.LATE RAVINDRAN, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. 2. SINDHU, AGED 32 YEARS, D/O.LATE RAVINDRAN, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. BY ADV. SRI.G.RAJAGOPAL SRI.THOMAS M.JACOB RESPONDENTS: ----------------- 1. RAMACHANDRAN, AGED ABOUT 68 YEARS, S/O.AYYAPPANKUTTY, PADMANIVAS, SANTHA NAGAR COLONY, NEAR HOME SCIENCE COLLEGE, ANGAMALY. 2. SUBHASHINI, AGED ABOUT 64 YEARS, W/O.LATE SIVADAS, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. 3. SUNILKUMAR, AGED ABOUT 42 YEARS, S/O.LATE SIVADAS, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. 4. SOBHANA, AGED ABOUT YEARS, D/O.SIVADAS, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. 5. VIJAYALAKSHMI, AGED ABOUT 40 YEARS, D/O.SIVADAS, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. RSA.No. 289 of 2009() 2 6. LAKSHMIKUTTY, AGED ABOUT 68 YEARS, W/O. LATE VASU, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. 7. BALACHANDRAN, AGED ABOUT 52 YEARS, S/O.LATE VASU, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. 8. SASIDHARAN, AGED ABOUT 50 YEARS, S/O.LATE VASU, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. 9. VISWAN, AGED ABOUT 44 YEARS, S/O. VASU, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. 10. SUDHAN, AGED ABOUT 41 YEARS, S/O. VASU, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. 11. LATHIKA, AGED ABOUT 38 YEARS, D/O.LATE VASU, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. 12. HEMALATHA, AGED 41 YEARS, D/O.LATE RAVINDRAN, KIZHAKKECHERUVIL HOUSE, MURIAMANGALAM KARA, THIRUVANIYOOR VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------------- R.S.A.No.289 of 2009 ------------------------------------- Dated this the 24th day of July, 2009 JUDGMENT The plaintiffs 1 and 3 in O.S.No.12/2003 on the file of the Munsiff’s Court, Kolenchery are the appellants. The appeal is directed against the judgment and decree in A.S.No.76/2007 on the file of the Subordinate Judges Court, Perumbavoor. The suit was filed by the three plaintiffs for fixation of boundary and for consequential injunction. The parties are arrayed as plaintiffs and defendants. The suit was dismissed by the trial court and confirmed in appeal. Hence, the second appeal. 2. The plaintiffs are the legal heirs of late Ravindran. Late Ravindran and defendants 1 to 3 are the sons and legal heirs of one Ayyappankutty. Plaint A schedule property is the share allotted to late Ravindran in the partition effected in 1975 in the registered partition deed No.1804/75. In the said partition, B schedule property is allotted to first defendant, C schedule to the second defendant, E & F schedule properties to the mother of the parties. Plaint D schedule is the pathway leading to A schedule property and according to the plaintiff it forms part of A schedule property. It is the case of the plaintiff R.S.A.No.289 of 2009 2 that, though the partition was effected between the sharers, the respective share allotted to each sharer was not measured and no boundary was put up at the site in respect of share allotted to each shareholder. Therefore, the parties enjoyed the property based on a rough assessment as to the boundary to the plot allotted to each of the shareholders. The properties allotted in E & F schedule to the mother situated at the Eastern side of the property of the plaintiff and defendants 1 and 2. The plaintiff has a further case that the Kavu’s share obtained by her was given by her to late Ravindran as per an oral gift. Therefore, the plaintiffs are entitled as of right to possession and enjoyment of plaint E & F schedule properties. This suit was filed for fixation of northern boundary of A schedule property and for an injunction against trespass into plaint A, B, E & F schedule properties. 3. The defendants resisted the suit. They have also filed a counter claim. The averments in the plaint are denied and they have contended that at the time of effecting the partition itself, the respective sharers were measured and the boundary was R.S.A.No.289 of 2009 3 fixed for the respective share allotted to each shareholder. They have also denied the contentions of the plaintiff and that the plaintiffs are in absolute possession and enjoyment of E & F scheduled properties in continuation of the ownership pursuance to the oral gift in favour of late Ravindran. The defendants further contended that the plaint E & F properties are available for partition and the plaintiff does not accede to their demand for partition. Therefore they have filed counter claim seeking partition of E & F schedule properties and allotment of ¼ share to each of the defendant and to allot separate possession of the same. 4. The trial court examined the issues on the basis of oral and documentary evidence adduced by both sides. Pws.1 to 3, Dw.1 were examined and Exts.A1 to A6, Exts.B1, B2, C1,C1(a), C2, C2(a), C3 and C3(a) are marked. 5. The trial court appreciated the evidence on record. It is not disputed that the plaint schedule properties are subject matter of partition deed of 1975. It is also not disputed that as per the said partition deed plaint schedule properties A, B, C, R.S.A.No.289 of 2009 4 D,E and F are allotted to the respective sharers. According to the plaintiffs no boundary was fixed and put up between A, B and C schedule properties at the time of execution of Ext.A1 partition deed. The trial court discussed the oral version of Pw.2 Commissioner and PW.3 surveyor. In Ext.C2(a) plan properties are demarcated measuring the property in accordance with the resurvey plan brought by the surveyor. It is admitted by the commissioner that the properties were not measured out in accordance with the property description in Ext.A1 document. The red coloured lines in Ext.C2(a) are provided to distinguish the properties in such a manner as giving equal road frontage to the plaint A, B and C schedule properties on western side. He submitted Ext.C3 report and Ext.C3(a) plan after a subsequent site inspection after Ext.C2 report and Ext.C2(a) plan. The surveyor who was examined as PW.3 testified that Ext.C2(a) plan was prepared by measuring the property on the basis of the resurvey sketch and plan which according to him was prepared in accordance with the possession of plaint A, B and C schedule properties and the other plots covered by Ext.A1 partition deed R.S.A.No.289 of 2009 5 by the parties thereof. 6. The trial court rightly noted that the prayer for fixation of boundary in plaint A schedule property is to fix the boundary in accordance with the mode of partition effected in the partition deed of 1975 and in such a manner as giving equal road frontage for the plaint A, B and C schedule properties. The trial court held that, if boundary is fixed in accordance with the wishes of the plaintiffs and in accordance with the Ext.A1 partition deed, then it will automatically result in equal road frontage on western side of the plaint A, Band C schedule properties. The court observed that the present suit is preferred by the plaintiffs to secure equal road frontage for plaint A schedule property with road frontage on western side for the plaint B and C schedule properties. The trial court observed that if road frontage is fixed as demanded by the plaintiff so much portion of the land where the plaint D schedule way commence from the national high way on western side would fall within the area of the plaint A schedule property. The court found that there is no legal foundation for the plaintiffs' claim for putting up R.S.A.No.289 of 2009 6 of northern boundary of plaint A schedule property in such a manner as providing equal frontage on western side to plaint A, B and C schedule properties. The court also refers to the extent of property obtained by each sharers in the partition deed and the extent of property now in the possession of the respective sharers. In Ext.A1 partition deed the extent allotted to the plaintiff is 13.35 are (33 cents), the extent allotted to the first defendant is 19 are 83 sq.metre (49 cents) and for the second defendant 38 cents equal to 15 are 38 sq.metre. Plaint B schedule is the largest plot and plaint A schedule property is the smallest plot among these 3 allottees. Since the extent of property according to the allotted partition deed varies, naturally the road frontage allottment also varies. As plaint C schedule is larger plot than plaint A schedule property, the same will have more road frontage on western side than A schedule property. Similarly the B schedule property is a larger plot that also will have more road frontage than A schedule property. 7. The courts below also considered the contentions of the defendant that at the time of effecting a partition as per R.S.A.No.289 of 2009 7 Ext.A1, boundary stones were put up at site in such a manner as fixing the boundary on all the plots covered by Ext.A1 partition deed. Thus on the northern side of the plaint A schedule property also survey stones were put up and the parties were in possession of the respective plots on the basis of the boundary so put up at site. 8. After analysing the evidence, the trial court recorded reasons for prefering the version of the defendant that boundary was fixed at site separating the plots covered by Ext.A1 partition deed at the time of partition deed itself. The trial court also found that if northern boundary side of plaint A schedule property is fixed in accordance with the property description of plaint A, B and C schedule properties as given in Ext.A1 document, then some extent of the property at present under the possession of the plaintiffs would go to the plaint B and C schedule properties. Thus the court after elaborate consideration of the plaintiffs' case concluded that there is no foundation at all for the claim of the plaintiffs that so much portion of the land where the D schedule way commences from the road on the R.S.A.No.289 of 2009 8 western side would form part of the plaint A schedule property. The fact that the plaintiffs are in possession of more extent than the extent mentioned in Ext.A1 document and the fact that the property at present under the possession of the defendants is lesser in extent than the extent mentioned in Ext.A1 doucment would further show that there is no reasonable prospects for putting up of boundary on the northern side of the plaint A schedule property in such a manner as providing equal or proportionate road frontage for plaint A, B and C schedule properties. The contention of the plaintiff regarding the oral partition also was negatived on merit finding that there is no basis for raising such a plea. The trial court dismissed the suit and allowed the counter claim directing partition of E & F schedule properties. The appellate court also considered the questions raised by the plaintiffs and held that the learned munsiffs had considered all the aspects correctly and rightly declined the prayer for fixing of boundary and allowed the counter claim. 9. I have examined the contentions raised by the R.S.A.No.289 of 2009 9 appellants/plaintiffs and heard the learned counsel at length. I find that the reasons stated by the trial court for non-suiting the plaintiff suffers from no legal or factual error. The findings are recorded based on the evidence, circumstances and probabilities. The facts are appreciated correctly and no questions of law survives for consideration by this court. I find no merit in the second appeal. No grounds are made out for invoking this court's jurisdiction under section 100 of C.P.C. This appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID, JUDGE skj.