IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 RSA.NO. 633 OF 2008() --------------------------------- AS.29/2002 OF SUB COURT,NEYYATTINKARA OS.683/1988 OF I ADDL.M.C.,NEYYATTINKARA .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------------------ 1. SANTHAKUMARI, KAKKATHOTTAM, EFATHA, KANJIRAMKULAM DESOM, KANJIRAMKULAM VILLAGE. 2. MOSES THAI, W/O. MOSES, THIRUMANGALATHU VEEDU, KALLAMPOTTA, MUKUNDARA DESOM, KALLAMPOTTA. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------- 1. NARAYANA PILLAI, VELAYUDHAN PILLAI, THANNIMOODU BUNGLOW, PERUMKULANGARA, MUKUNDARA DESOM, KALLIKKADU VILLAGE. 2. JANAKY PILLAI SARASWATHY PILLAI, -DO- -DO- ADV. SRI.G.S.REGHUNATH FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.633 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of December, 2009 J U D G M E N T --------------------- Second Appeal arises from judgment and decree of learned Sub Judge, Neyyattinkara in A.S. No.29 of 2002 arising from O.S. No.683 of 1988 of the court of learned Munsiff, Neyyattinkara. Appellants sued respondents for declaration of title and possession of the property scheduled in the plaint and for injunction to restrain respondents from trespassing into that property. According to the appellants suit property as well other items belonged to one Goapala Pillai as per Ext.A1, sale deed of the year 1951 and while so appellants purchased the property as per Ext.A2. Respondent No.1 contended that Gopala Pillai had no right, title or possession of the property referred to in the plaint schedule to be assigned to the appellants as per Ext.A2 and that 17 cents in R.S. No.38/3/3 belonged to one Kumara Pillai from whom predecessor-in-interest of respondent No.1 obtained possession under an oral lease followed by a gift in favour of respondent No.1 and his wife in the year 1987. Thus respondent No.1 and his wife are in possession of the properties. Suit was decreed in favour of appellants which was challenged by the respondents in appeal. Learned Sub R.S.A. NO.633 of 2008 -: 2 :- Judge as per judgment and decree in A.S. No.780 of 1994 remanded the case for identification of the property with a direction that property has to be measured with reference to Exts.A1, A2 and the survey numbers mentioned therein. It was also directed that 49 cents referred to in Ext.A1 has to be excluded from such measurement. After remand the Advocate Commissioner inspected the property with the assistance of Taluk Surveyor and measured it. Exhibits C3 and C3 (a) are the report and plan. Based on that report and plan trial court found that entitlement of appellants as per Ext.A2 is in respect of plots marked as 'BCDS' and 'MHIL'. In respect of those plots title and possession of appellants was declared. Appellants were not satisfied and preferred A.S. No.29 of 2002. In the first appellate court Exts.A4 to A9 were marked but that court observed that those documents will not bind the respondents. First appellate court agreed with the finding of the trial court and dismissed the appeal. Hence this Second Appeal. 2. Substantial question of law urged in the Second Appeal is: “Whether first appellate court committed manifest injustice by refraining from remanding the case to identify the plaint schedule properties in accordance with corrected survey records brought on record by Exts.A4 to A9.” R.S.A. NO.633 of 2008 -: 3 :- It is contended by learned counsel for appellants that in the light of Exts.A4 to A9 appellants ought to have given opportunity to properly identify the suit property. 3. Exhibits A1 and A2 are the documents of title relied on by the appellants. Going by Ext.A1, the 2.50 acres in which the suit property allegedly comes is situated on the east and west, on either sides of the 49 cents which is not disputed by appellants is in the possession of respondents. In Ext.A1 survey number of the property is given as 38/3-2 in respect of the entire 2.99 acres out of which the 2.50 acres is situated on the east and west. In Ext.A2, assignment deed in favour of appellants the survey number is given as 38/3-3 and stated as comprised in the 2.50 acres out of 2.99 acres. In Ext.C3(a) Commissioner has identified the plots, 'BCDS' and 'MHIL” as item Nos.1 and 2 of the plaint schedule situated on the east and west and in between is other properties belonging to respondents and others. Now contention of appellants is that item Nos.1 and 2 of the suit property lying contiguously, Commissioner happened to identify the property as situated on the east and west only because of the survey number and re-survey plan which have been corrected by Exts.A4 to A9, land register, basic tax register and correlation statement. According to the learned counsel the correct survey number of item R.S.A. NO.633 of 2008 -: 4 :- Nos.1 and 2 of Ext.A2 is R.S. No.220/4. Counsel submitted that there was an application for withdrawal of the suit consequent to Exts.A4 to A9 which also was not allowed by the first appellate court. 4. So far as the re-survey plan is concerned it is not disputed that the re-survey number of Sy.No.38/3/3 is 220/3 and that of 38/3-2 is R.S.No.220/5. Commissioner found that plot 'BCDS' is in R.S.No.220/3 while plot 'MHIL' is in R.S. No.220/5 concededly situated on the east and west, in two locations. Now the contention is that as per the corrected re-survey plan both items come in R.S. No.220/4 which was hitherto shown in the name of respondents in the re-survey records. 5. It is seen that during the time case was pending in the first appellate court appellants made an attempt to correct the re-survey records and in connection with the same there was Writ Petition filed in this Court but without impleading respondents as parties. This Court directed the survey authorities to consider the application preferred by the appellants and if necessary give notice to all persons concerned. But no notice was given to any of the respondents in spite of the fact that suit was pending from 1988 onwards. First appellate court has referred to the circumstances which led to the correction of re-survey records in paragraph 9 of the judgment and R.S.A. NO.633 of 2008 -: 5 :- stated that Exts.A4 to A9 cannot bind the respondents. First appellate court has also pointed out that even after the remand of the case there was no attempt to correct the re-survey records, etc., and it is only when the matter was pending in the appeal for the second time that appellants moved for correction of re-survey records and got it corrected which number takes in the property belonging to the respondents. It is in the above circumstances that the first appellate court was not inclined to act upon Exts.A4 to A9 or even to remand the case. So far as the request for withdrawal of the suit is concerned no order was passed by the first appellate court. 6. Now I shall refer to the oral evidence. P.W2 has gave evidence on behalf of the appellants. In spite of claiming that suit property is in the possession of appellants right from the time of Ext.A2 he was not able to say where exactly the property is situated. He does not know where exactly out of the entire extent the 28.906 cents (item Nos.1 and 2 taken together) situate. At another stage of evidence he stated that he has right in a portion of the property in the possession of the respondents also (which comes in the 49 cents on the sides of which total extent of 2.50 acres come). According to P.W2 he has right over the property towards the western side of the property and in answer to a question whether he has right in the R.S.A. NO.633 of 2008 -: 6 :- property in the possession of the respondents (coming in the 49 cents), he answered in the affirmative. It is pertinent to note that in the remand judgment it was directed that the property excluding the said 49 cents is to be measured. Thus it is seen that P.W2 was not able to say where exactly the suit property is situated. Plaint schedule does not give any indication whether item Nos.1 and 2 are lying contiguously. But for the correction now brought by Exts.A4 to A9 it is not disputed by the appellants also that as per the survey records which remained in force items Nos.1 and 2 fall in different sub divisions and are not lying contiguous. First appellate court has stated reasons for not accepting Exts.A4 to A9. There is another reason which persuaded me to reject the request for remand. This is a case which started in the year 1988 and one remand has already been made. Now the parties are in the second round of litigation. Assuming that appellants are not claiming any right in the 49 cents on the sides of which the 2.50 acres from which appellants acquired the suit property as per Ext.A2, the 2.50 acres less the suit property (28.906 cents) should belong to or is in the possession of strangers who are not parties to the suit. In such a situation request of the learned counsel for remand of the case cannot be entertained. Nor am I inclined to permit withdrawal of the case at this stage since findings R.S.A. NO.633 of 2008 -: 7 :- entered are in favour of the contesting respondents. In such circumstances for a mere asking, withdrawal cannot be permitted in appeal as that would have the effect of nullifying the favourable finding in favour of the respondents. Based on the available records which are not disputed by either side trial court has identified the suit property as shown in Exts.C3 and C3(a) and title and possession of appellants in respect of those items have been declared. In the above situation I do not find any substantial question of law involved in this appeal. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.633 of 2008 -: 8 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO. 633 OF 2008 =================== J U D G M E N T 8TH DECEMBER, 2009