IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 RSA.No. 31 of 2006() -------------------- AS.19/2005 of ADDL.SUB COURT,NORTH PARAVUR OS.560/1997 of MUNSIFF'S COURT, PERUMBAVOOR .................... APPELLANTS:RESPONDENTS:DEFENDANTS: -------------------------------------------------------------------- 1. POULOSE, S/O.DEVASSY, PULIKKAL HOUSE, PANICHAYAM KARA, ASAMANNOOR VILLAGE. 2. CHINNAMMA, W/O.POULOSE, DO. DO. BY ADVS. SRI.S.SHYAM, SRI.N.K.KARNIS, SRI.BOBBY MATHEW KOOTHATTUKULAM. RESPONDENT(S): --------------------------- MATHAI, S/O.PAILY, THOKKAHAL, MANICHAYAM KARA, ASAMANNOOR VILLAGE. BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR), SRI.GEORGE VARGHESE KIZHAKKAMBALAM. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.118/2006 IN RSA.NO.31/2006 CLOSED 27/05/2010 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss P.BHAVADASAN, J. ------------------------- R.S.A No.31 of 2006 -------------------------- Dated this the 27th May, 2010 J U D G M E N T Dispute in this case relates to an anjili tree. According to the appellant, it stands on the southern side of plaint schedule property. The grievance is that the defendants had already destroyed the old kayyala so as to annex a portion of the plaintiff's property and to claim ownership on the anjili tree and hence the suit. 2. The defendants resisted the suit. They filed a written statement stating that the anjili tree belonged to them and it is situated within their property. 3. The trial court raised necessary issues for consideration. The evidence of testimony of PWs1 to 3 and Exts A1 to A3 were marked from the side of the plaintiff. DWs1 to 3 and Exts.B1 to B5(a) to (d) were examined and marked from the side of the defendants. Exts.C1, C1 (a) C2 , C2 (a) & (b), C3 and C3 (a) are the commission report and plan. 4. The trial court on an appreciation of evidence came to the conclusion that dispute involved in the case is R.S.A No.31 of 2006 2 with regard to a tree which stands on the common boundary of the properties belonging to the defendant and plaintiff and following the dictum laid down in Achuthan Vs. Sumitra & Others [1987 (1) KLT 457] held that anjili tree is in the joint ownership of the parties and therefore dismissed the suit. 5. Plaintiff went up in appeal as A.S No. 19/2005 before the District Court, North Paravur. The appellate court on re-evaluation of the evidence came to the conclusion that findings of the trial court cannot be supported and found that anjili tree was in fact standing within the property owned by the plaintiff. The decree of the trial court was reversed and decree was granted in favour of the plaintiff. The defendant has come up in appeal before this Court. 6. The issue for consideration is whether the lower court was justified in holding that the plaintiff is the owner of the anjili tree. It would appear from the judgment of the lower court that it was mainly guided by the photographs produced in the case. Identity of the property was R.S.A No.31 of 2006 3 determined as per the old survey sketch and also by the resurvey sketch. The trial court observed that there was no sketch prepared as per resurvey. That is incorrect. The trial court has also taken note of the fact that the anjili tree is situated on the boundary of the properties of the plaintiff and defendants . 7. The lower appellate court on the other hand found that going by the resurvey sketch the entire tree stands within the property of the plaintiff and going by the old sketch, major portion of the property stands in the property of the plaintiff. 8. The lower appellate court noticed that there is considerable height level between the properties and normally the tree could have been planted only in the property owned by the plaintiff which is on a higher level. Commission report shows that some portions of the roots of the tree is protracting into the property of the defendants. The projection of some portions of the tree towards the property of the defendant might be due to the growth of tree by passage of time. R.S.A No.31 of 2006 4 9. It is significant to note that even though resurvey cannot confer title as such, PW1 has stated that he has no objection to the finalisation of the resurvey. In fact, it has come out in evidence that he obtained his property after the resurvey was finalised. 10. On going through the evidence, it is seen that there is considerable height level between the properties. The property owned by the plaintiff is situated at a much higher level than the property owned by the defendants. As already noticed, even going by the resurvey sketch major portion of the tree stands in the property owned by the plaintiff. 11. When it is found that tree stands on a common boundary between two properties the question to resolve the issue is to ascertain as to who was planted the tree? That probably may not have any application in the case on hand. Kayyala which is about 50 years old must have been put up by the plaintiff. The kayyala is situated in between the two properties of plaintiff and defendants. One must R.S.A No.31 of 2006 5 remember that the properties are at different level. Major portions of the tree stands in the property of plaintiff. Therefore, the lower court come to the conclusion that anjili tree belonged to the plaintiff. Finding is essentially on the question of facts and arrived at on an appreciation of evidence. No interference is called for by this court since it is not shown that finding of the lower appellate court either perverse or unwarranted by the evidence on record. Appeal is without merits and it is accordingly dismissed. No order as to costs. P.BHAVADASAN, JUDGE ma R.S.A No.31 of 2006 6 R.S.A No.31 of 2006 7