IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 SA.No. 903 of 1998(G) --------------------- AS.34/1994 of PRL.SUB COURT,KOTTAYAM OS.196/1989 of MUNSIF COURT, KANJIRAPPALLY .................... APPELLANT(S)/PLAINTIFF IN O.S.NO.196/1989 AND APPELLANT IN A.S.34/1994: -------------- KOCHUCHANDY KURUVILA, PANDIMACKAL HOUSE, MANIMALA VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DIST. BY ADV. SRI.JAMES MATHEW RESPONDENT(S)/DEFENDANTS IN O.S.NO.196/89 AND RESPONDENTS IN A.S.NO.34/94: --------------- 1.SREEDHARAN NAIR BHARATHIAMMA, KULANGARA VEETTIL MANIMALA KARA, MANIMALA VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DIST. 2.V.K.SREEDHARAN NAIR, KULANGARA VEETTIL, MANIMALA KARA MANIMALA VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DIST. ADV. SRI.GEORGE MECHERIL SRI.SUNNY MATHEW PALAKKATTUKUNNEL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.903 OF 1998 ----------------------------------- Dated this the 14th day of October, 2010 J U D G M E N T Plaintiff in a suit for recovery of possession on the strength of title and also for fixation of boundary, is the appellant. Suit, after trial to the extent of recovery of possession sought for by the plaintiff was negatived, but a decree was granted for fixation of boundary as determined under C3 plan prepared by an advocate commissioner. Challenge raised by the plaintiff as against the decree, declining recovery of possession, by way of a appeal was negatived by the lower appellate court concurring with the finding entered by the trial court that he is not entitled to the relief so canvassed in his suit. Hence, the plaintiff has preferred this second appeal. 2. The plaint items, three in number, formed part of 2.29 acres covered by A1 partition deed executed by Kulloorakathu Veettil Kunjupennamma, Pappiamma and others. Pappiamma, S.A.NO.903/1998 2 one of the parties in that partition deed got 1 acre 90.5 cents on the western side of the aforesaid 2 acres 29 cents and her brother Narayanan Nair, another sharer got the remaining 38.5 cents of land in the above property on its eastern side. Pappiamma, later, under A3 sale deed purchased the above said 38.5 cents of land from her brother Narayanan Nair. Out of 1 acre 90.5 cents obtained under A1 partition deed, Pappiamma sold the western 50.5 cents to one Ramakrishnan Nair. Plaintiff, by virtue of two sale deeds, A4 and A5, the first one from Pappiamma obtained 38.5 cents of land, and under the latter, 50.5 cents from the vendee, Ramakrishnan Nair and, thus, got title and possession over 89 cents, and it has been scheduled in the plaint as item No.1. The 1st defendant purchased 70 cents on the western side in the property having an extent of 1 acre and 40 cents, which remained with Pappiamma, and the 2nd defendant purchased 70 cents on its eastern side, under two separate sale deeds and, thus, defendants 1 and 2 obtained title and possession over 1 acre and 40 cents, which originally formed part of the 1 acre 90.5 cents allotted to Pappiamma under A1 partition deed. In the plaint, the above property obtained by S.A.NO.903/1998 3 defendants 1 and 2 are described as item No.2. It is the case of the plaintiff that trespassing upon item No.1 on its south-western side, the defendants have reduced into their possession, an area of 12 cents. The trespassed area under the possession of the defendants is separately scheduled as item No.3 seeking its recovery on the strength of title. A further relief for fixation of the western boundary of plaint item No.1 with that of the plaint item No.2 after effecting recovery of item No.3 was also sought for as a separate relief in the suit. Both the defendants jointly filed a written statement disputing the title and possession claimed by the plaintiff over item No.1 and also the allegations raised as to trespass and reducing it into their possession item No.3, which was alleged to be part of item No.1 in the plaint. Thus, defendants contended that the property which was conveyed by Pappiamma to the 1st defendant situated on the west of 1 acre 40 cents, had some excess area over and above the 70 cents specifying under the deed, and ever since in continuation of the possession enjoyed by their predecessor, the 1st defendant is in enjoyment of such property. There is a ridge having 3 feet width separating the property of the 1st defendant S.A.NO.903/1998 4 with that of the plaintiff situated on the eastern side, was the further case of the defendants to resist the claim for fixation of boundary canvassed for in the suit. It was also contended that in the portion of the property alleged as trespassed upon, described as item No.3, the defendants have put up a cattle shed and even before the plaintiff obtained title over item No.1 by the conveyance deed executed by Pappiamma and also Ramakrishnan Nair, such shed was in existence. None of the reliefs canvassed by the plaintiff in the suit is allowable in short was the case of the defendants. 3. On the materials placed by both sides, which consisted of PW1 and Exts.A1 to A8 for the plaintiff and Exts.C1 to C4, the reports and plans prepared by an advocate commissioner deputed by the court, the learned Munsiff found that the plaint properties as described in the plaint are not identifiable and the claim of the plaintiff for recovery of the area alleged to have been trespassed upon by the defendants, which was described in the plaint as item No.3, determined by the commissioner as stated by the plaintiff at the time of local inspection, in the facts S.A.NO.903/1998 5 and circumstances of the case, is not allowable. However, the plaintiff was given a decree to put up a boundary in DB line in C3 plan though the relief canvassed for the plaint was only for fixation of boundary. DB line in C3 plan separated item No.1 from item No.2, was the view taken by the trial court to grant such a relief to the plaintiff. The recovery of possession of item No.3 claimed by the plaintiff on the strength of his title was declined and the suit was decreed only to the extent of allowing the plaintiff to put up boundaries in DB line and also a prohibitory injunction against the defendants from trespassing upon any portion situated to the west of DB line in C3 plan, which alone was determined as the property covered by item No.1, for which the plaintiff has title and possession. The appeal preferred by the plaintiff, as indicated earlier, challenging the refusal to grant recovery of possession of item No.3, after re- appreciation of the materials, was turned down by the lower appellate court concurring with the finding entered by the trial court that the plaintiff has failed to establish his title or possession over item No.3 property. S.A.NO.903/1998 6 4. I heard the counsel on both sides. The materials tendered by the plaintiff clearly established his title over item No.3 property, and as such, a decree for recovery of possession of that property, which is found to be in possession of the defendants, and that too, without any sustainable defence entitling them to retain such possession, should have been granted by the court below, is the submission of the learned counsel for the appellant/plaintiff. On the other hand, no substantial question of law involved in this appeal and the concurrent finding entered on disputed facts by the two courts below is not open to scrutiny or modification by this Court, is the submission of the learned counsel for the respondents/defendants banking upon sub section (1) of Section 100 of the Code of Civil Procedure. Perusing the records of the case, it is seen, both parties have filed objections to the commission report, but none of them have taken any steps to substantiate such objections by examining the commissioner and also the surveyor, who assisted him in measuring out and preparing C3 plan. In fact, it is noticed that the plaintiff has only filed a formal objection to the commission report. A perusal of S.A.NO.903/1998 7 the commission report shows that the property comprising of 2 acres 29 cents covered by A1 partition deed, in respect of which, allotments were made in favour of Pappiamma and Narayanan Nair, 1.90 cents for the former and 38.5 cents for the latter, was properly identified by the commissioner in C3 plan. However, the rest of the identification with reference to the title deeds produced by the parties was not attempted to, but, identification of the properties described in the plaint was made on the basis of the opinion expressed by the parties at the time of inspection with reference to the possession exercised by them at that point of time. In fact, item No.3, which is identified as the trespassed area by the Commissioner as seen from his report and plan was determined on the basis of the opinion given by the plaintiff at the time of local inspection. When such be the case, it was the duty of the plaintiff to bring it to the notice of the court that the proper identification of the property has not been made with reference to the title deeds, and insist for such identification as the reliefs canvassed in the suit was one for recovery of possession on the strength of his title. No such objection was canvassed and, further, it was also not brought to S.A.NO.903/1998 8 the notice of the court that the report and plan prepared by the commissioner suffered from such serious infirmities. This infirmity could have been considered and taken note of as a crucial factor to interfere with the concurrent findings entered by both the courts as those courts also had a duty to examine the materials tendered and especially the report and plan of the commissioner to consider its acceptability whether or not objections are raised by the parties. But that exercise by this Court, I find, at this stage, in the second appeal, is not called for as it is seen from the evidence tendered in the case that the plaintiff has miserably failed to show that under the sale deeds obtained by him he got possession of the entire extent covered by item No.1 as described in his plaint. The plaintiff when examined as PW1 had pleaded ignorance as to the extent of the land obtained by him under the sale deeds in his favour. He has no case that the measurement of the properties was done before the sale deeds were executed in his favour. The fact that the defendants had not set up a plea of adverse possession even assuming that they are not having title over item No.2 property, in the fact scenario presented in the case, would not come to the S.A.NO.903/1998 9 assistance of the plaintiff where he has miserably failed to show that the trespassed area, item No.3, if at all such a trespass was made, had taken place after title over the property, described as item No.3, under the two sale deeds had been transferred in his favour. The existence of the cattle shed in item No.3, and the ridge separating the properties of the parties, which was canvassed by the defendants to show the exercise of their possession over item No.3 as well even when the property remained with the predecessor of the plaintiff, in the given facts of the case, has to be given due significance and merit, and such being the situation, I find no interference with the decision rendered by the two courts below is called for. The second appeal is devoid of any merit, and hence it is dismissed directing both sides to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.903 OF 1998 ----------------------------------- J U D G M E N T 14th day of October, 2010 S.A.NO.903/1998 11