IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 SA.No. 125 of 1999(F) --------------------------------- AS.38/1989 of SUB COURT, CHERTHALA OS.242/1979 of ADDL.MUNSIFF COURT,CHERTHALA .................... APPELLANT/RESPONDENT/1ST DEFENDANT: ----------------------------------------------------------------------- NARAYANA THANDAR, S/O.SANKARAN, RESIDING AT VADOTTUCHIRAYIL, CHERUVARANAM MURI, THANNEERMUKKOM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. BY ADV. DR.P.S.KRISHNA PILLAI RESPONDENTS/LRs OF DECEASED PLAINTIFF & 2ND DEFENDANT: ----------------------------------------------------------------------------------------------------------- 1. AMMUKUTTY AMMA, W/O.PADMANABHAN NAIR, VADAKKE SABARIPPADATHU, CHERUVARANAM MURI, THANNEERMUKKOM NORTH VILLAGE, CHERTHALA TALUK. 2. CHANDRAMOHAN NAIR, S/O.PADMANABHAN NAIR, -DO- -DO- 3. NANDAKUMARAN NAIR, S/O.PADMANABHAN NAIR, -DO- -DO- 4. GOPIKUTTAN NAIR, S/O.PADMANABHAN NAIR, -DO- -DO- 5. ANANDAVALLY AMMA, D/O.PADMANABHAN NAIR, -DO- -DO- 6. V.JAYADEVAN, JAYANTHIYIL HOUSE, CHERUVARANAM MURI, THANNEERMUKKON NORTH VILLAGE, CHERTHALA TALUK. 7. V.DHARMAJAN, ARUN BHAVAN, CHERUVARANAM MURI, THANNEERMUKKON NORTH VILLAGE, CHERTHALA TALUK. SA.No. 125 of 1999(F) 2 8. V.SUGUNAN, VALIYAPARAMBIL HOUSE, DO. DO. (DIED) 9. V.SOMAN, JOSHI BHAVAN, DO. DO. 10. V.GOPALAKRISHNAN, SREEJITH NIVAS, DO. DO. 11. V.SHANMUGHAN, VALIYAPARAMBIL HOUSE, DO. DO. ADDL.R12. JAYA SUGUNAN, WIDOW OF SUGUNAN, VALIYAPARAMBIL HOUSE, CHERUVARANAM MURI, VARANAM.P.O., THANEERMUKKAM NORTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. ADDL.12TH RESPONDENT IS IMPLEADED IN HER CAPACITY AS THE LR OF THE DECEASED 8TH RESPONDENT VIDE ORDER DATED 23/07/09 IN I.A.No.1176/08. ADV. SRI.K.K.RAMACHANDRAN PILLAI SRI.P.R.SUDHAKARAN NAIR SRI.S.SUDHISH KUMAR FOR R1 TO R5 SRI.S.MURALI SRI.K.K.KRISHNA PILLAI THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------------- S.A.No.125 of 1999 ------------------------------------- Dated this the 11th day of August, 2009 JUDGMENT The first defendant in O.S.No.242 of 1979 on the file of the Munsiff’s Court, Cherthala is the appellant. The appeal is directed against the judgment and decree in A.S.No.38 of 1989 on the file of the Sub Court, Cherthala. The suit for declaration of title and recovery of possession of 9 cents of land was dismissed by the trial court and confirmed in appeal. Hence the second appeal. The parties are hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaint schedule property is having an extent of 9 cents which formed part of 28 cents in Survey No.59/11. Admittedly the plaint schedule property and the property in the possession of the first defendant originally belonged to one Chalinarayanapuram Devaswom. The total extent of property in the said Survey number is 45 cents. It is the plaintiff’s case that he got title over 28 cents out of 45 cents by virtue of Exts.A1 and A2 title deeds and subsequently obtained purchase certificate from the land tribunal concerned. The 28 cents, which belonged to the plaintiff, is the southern portion of 45 cents in survey S.A.No.125 of 1999 2 No.59/11. Ext.A5 is the sale deed in favour of the second defendant. In Ext.A5 it is stated that the paddy field assigned to second defendant is 17 cents in the same survey number. Ext.B1 is the partition deed in second defendant’s family of the year 1124, in that deed second defendant got allotment of 22 ½ cents being northern portion of 75 cents comprising in the same survey number stated above. The trial court after examination of Ext.A1, A2, A5, A6, Exts.B1, B4, B5, Exts.C2 and C4 and the oral evidence recorded by the parties held that, from the description of the property in various documents it can be seen that there is no ambiguity with regard to the area assigned to Chalinarayanapuram Devaswom. The trial court after meticulously examining the description of the property and the contentions on both sides concluded that the plaintiff is entitled to 28 cents. Thus the trial court on evidence held that the extent of the property allotted to the predecessors of the plaintiff in Chalinarayanapuram Devaswom is 45 cents, out of this 45 cents the plaintiff is entitled for 28 cents. It follows that defendant is only entitled to 17 cents in survey No.59/11 and the court also S.A.No.125 of 1999 3 observed that simply by stating that 28 ½ cents in some of the documents in favour of the second defendant will not confer him title. The extent of land held by the defendant is thus found to be only 17 cents. Exts.C2 to C4 are the commissioner’s report and plan respectively. The trial court also on the basis of Exts.C2 and C4 held that from Ext.C2 plan plaintiff hold 17 cents and 4 sq.links of property. The commissioner’s report and the depositions of the various witnesses of plaintiff together shows the trespass committed as alleged in the plaint. On the basis of the above said findings the trial court decreed that the plaintiff is entitled to get declaration of title and recovery of possession as prayed for. 3. The defendants 1 and 2 filed separate appeals as A.S.Nos.37 and 38 of 1989. The appellate court also examined the questions in detail. The contentions raised by the appellants that the actual extent comprised in Survey No.59/11 is 56 cents is repelled on the basis of the evidence on record. The appellate court also on the basis of the evidence came to the same finding stating that the total extent comprised in Survey No.59/11 is S.A.No.125 of 1999 4 having only an extent of 45 cents, out of the above, 28 cents is in the possession of plaintiff and 17 cents in the possession of the land in the possession of appellants. The appellate court had taken in account Ext.A8, Thandaper register, testimony of PW.6 and Ext.A8 for resting its conclusion that the property claimed by both sides is having a total extent of only 45 cents and not 56 cents. The appellate court held that Exts.A1 to A3, A5, A6 and A8 proved that the plaintiff is the title holder of 28 cents of land. The appellate court agreed with the findings of the trial court and dismissed both the appeals. I have examined the findings recorded by the trial court as well as the appellate court. The finding that the extent of land comprised in survey No.59/11 is having only 45 cents and that the plaintiff is the title holder of 28 cents out of the 45 cents is clearly established. The further fact that an extent of 9 cents is trespassed upon and possessed by the defendants are also proved conclusively. The conclusions arrived at both the courts are the only possible conclusion in the given circumstances. The facts are discussed in detail and the findings are arrived at purely based on such facts. I do not find S.A.No.125 of 1999 5 any reason to interfere in the judgment and appeal by invoking this court’s jurisdiction under Section 100 C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. Hence, this appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID, JUDGE Skj.