IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 RSA.No. 1110 of 2008() ---------------------- AS.2/2004 of SUB COURT, VADAKARA OS.88/2000 of MUNSIFF COURT, VADAKARA .................... APPELLANT/RESPONDENT ---------------------------------------- SANKARAN GURUKKAL MEMORIAL SENIOR BASIC SCHOOL WELFARE COMMITTEE, BY ITS PRESIDENT ADVOCATE M.K.PRABHAKARAN, SCHOOL COMMITTEE (S.M.G.B) VATAKARA AMSOM, DESOM, VATAKARA. BY ADV. SRI.B.KRISHNAN RESPONDENT(S): --------------- P.K.BALAN, S/O.KELAPPAN, 69 YEARS, SWASTHAM, PUTHUKKUDI THAZHAKUNI, VADAKARA AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANAKANNAN(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO.1110 of 2008 * * * * * * * * * * * * * * * * * * Dated: 5th February, 2009 JUDGMENT The defendant in O.S. No. 88 of 2000 on the file of the Munsiff Court, Vadakara is the appellant in this Second Appeal. The said suit was for fixation of the western boundary of the plaint schedule property and for a perpetual injunction restraining the defendants from trespassing into the plaint schedule property. 2. The dispute finally boils down to an almost triangular shaped plot marked as CDJEKB in Ext.C9 survey plan submitted by the Advocate Commissioner deputed by the trial court. The question before the courts below was whether this plot having an extent of 9.27 cents is or is not included in Ext.A2 title deed dated 26-2-1971 relied on by the plaintiff. Incidentally, the courts below have also considered whether the disputed plot is R.S.A. NO.1110 of 2008 -:2:- included in Ext.A8 title deed dated 3-11-1939 belonging to the appellant. 3. The trial court dismissed the suit holding that the plaintiff has failed to establish his title over the disputed plot CDJEKB. On appeal preferred by the plaintiff, the lower appellate court reversed the decree passed by the trial court and held that the disputed plot CDJEKB is included in the title deed of the plaintiff namely Ext.A2 and accordingly fixed the western boundary along the line KBCDJEF in Ext.C9 plan. It is the said appellate decree which is assailed in this Second Appeal by the defendant. The following are the questions of law formulated in the memorandum of Second Appeal:- i) Whether the lower appellate court was justified in reversing the judgment of the trial court when no cogent grounds are available for reversal in the context of the judgment reported in 2007 (4) SCC 163. ii) Whether the lower appellate court was justified in reversing the judgment of the trial court based on plaintiff's R.S.A. NO.1110 of 2008 -:3:- case in the context of the pronouncement of the Apex Court in 2003 SAR 802 on identity of the property iii) Whether the lower appellate court was justified in entertaining the suit cleverly disguised as one for demarcation of the plaint property when the plaintiff had no possession of the plaint schedule property in the context of the judgment of the Hon'ble High Court of Kerala in 1990 (1) KLJ 218. iv) Whether the lower appellate court is justified in setting the boundary of the plaint schedule property when the description in exhibit A1 and A2 from the side of the plaintiff are inconclusive for relief to the plaintiff. 4. The learned counsel appearing for the appellant/defendant made the following submissions before me in support of the Second Appeal :- Being a suit for fixation of boundary and injunction it was for the plaintiff to establish that he had title over the plaint schedule property including the disputed plot CDJEKB. It was not open to the plaintiff to pick holes in the defence and thereby R.S.A. NO.1110 of 2008 -:4:- hope to get a decree in his favour. As held in 2007 (4) SCC 163 the lower appellate court before reversing the well-considered judgment of the trial court was bound to give detailed reasons for doing so. The plaintiff was merely copying down in Ext.A2 title deed the east-west measurements of 36 ½ six feet koles obtained in Ext.A1 the prior title deed Ext.A2 subsequent title deed in favour of the plaintiff which was executed after the compulsory acquisition of a portion of Ext.A1 property for the purpose of national highway. If the disputed plot was also taken in by Ext.A2 sale deed, then the national highway bisects the property into a western plot which is the disputed plot and an eastern plot. In that event, Ext.A2 should have described the property as lying on either side of the national highway. If we go by the measurements in Ext.A2 i.e. 36 ½ and 32 ¾ six feet koles, then the plaint schedule property should have an extent of more than 99 cents whereas going by the extent of 16 Ares specifically referred to Ext.A2, the area will come only to 40 cents. It is true R.S.A. NO.1110 of 2008 -:5:- that the western property of the appellant is found in excess of what is shown in Ext. A8 title deed. But then, it was for the plaintiff to establish that the disputed plot is taken in by his title deed in which case alone the plaintiff could have the boundary fixed as prayed for . The disputed plot which lies adjacent to the defendants' property which is an school compound in which an upper primary school is being run, is used by the students for morning assembly and as a play ground, and also for other recreation. 5. I am afraid that I cannot agree with the above submissions. It is true that in Ext.A2 the the east-west measurements given are 36 ½ and 32 ¾ six feet koles and if we calculate the area it will come to roughly, more than 99 cents. But then the said measurements have obviously been copied down from the prior title deed Ext.A1. There is no dispute that in between the dates of Exts. A1 and A2 there has been a compulsory acquisition from Ext.A1 property for the purpose of R.S.A. NO.1110 of 2008 -:6:- the national highway. Hence, the area of Ext.A2 property can only be a lesser. Therefore, much importance cannot be attached to the measurements given in Ext.A2. But Ext.A2 specifically mentions the extent as 16 Ares which by and large corresponds to 40 cents. 6. According to the appellant if the disputed plot was included in Ext.A2, then the description of the property should have been that it lies on either side of the national highway. (N.H. for short). But the description in A2 does not indicate that the property lying on either side of the N.H. It is strue that the national highway had bisected the original property into two. The description of the property in Ext.A2 is that portion of Manichintavida paramba which remains after the acquisition for the national highway. Plot MNOP is admittedly the portion lying on the eastern side of the NH and there is no dispute that the plaintiff is in possession of the said plot. Extent of the said plot is only 37.99 cents which does not agree with the total extent of 40 R.S.A. NO.1110 of 2008 -:7:- cents covered under Ext.A2. No doubt, if the disputed plot CDJEKB lying on the west of the national highway is also held to be included in Ext.A2 then the total extent will be come to 47.26 cents which is 7.26 cents in excess. But it must be remembered that the appellant's title deed Ext.A8 takes in only 13 ½ cents whereas the orange shaded plot ABCDJEFGH identified by Commissioner as Ext.A8 property has a total extent of 22.30 extent which is in excess by more than 9 cents. 7. The contention of the learned counsel for the appellant/defendant that the defendant is running a U.P. School in Ext.A8 property and the disputed plot CDJEKB is used by the students of the school for their running assembly and as their playground and for other ancillary purposes, cannot be countenanced. As rightly observed by the lower appellate court, such considerations cannot weigh with the court while deciding the legal rights of the parties. When those who run the school do not have title of ownership over adjacent properties, then merely R.S.A. NO.1110 of 2008 -:8:- because such propertiess are used for purposes connected with the running of the school, whether with or without the consent of the real owners, no special rights can be claimed by such persons over such adjacent properties. To hold otherwise would spell in the region of lawlessness putting a p premium on usurpation or rank trespass. If the disputed plot is also held to be covered by Ext.A8 title deed of the appellant, then his total extent would swell to 31.57 cents. As per the title deed he has only 13 ½ cents whereas at site he has 22.30 cents. He cannot be allowed to contend that the disputed plot admeasuring 9.27 cents is also included in his title deed to make up a total of 31.57 cents. If such a construction is adopted then the plaintiff will have to be satisfied with 37.99 cents which going by the extent covered by Ext.A2 will be deficient by nearly 3 cents with a corresponding increase in the property of the appellant by 18.07 cents (i.e. 22.30 +9.27 = 31.57-13.50=18.07) . Hence, the interpretation placed by the lower appellate court after a careful re- R.S.A. NO.1110 of 2008 -:9:- appreciation of the oral and documentary evidence including Ext.C5 report and Ext.C9 plan cannot be said to be erroneous. No question of law, much less any substantial question of law arises for consideration in this Second appeal. The questions of law formulated in the memorandum of appeal also do not arise for determination in this Second Appeal which is accordingly dismissed in limine. Dated this the 5 th February, 2009. V. RAMKUMAR, (JUDGE) ani.