IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 RSA.No. 1323 of 2008() ---------------------- AS.239/2003 of PRL.SUB COURT, KOZHIKODE OS.476/1998 of ADDL. MUNSIFF'S COURT-I, KOZHIKODE .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------- THAZHATHE THATTUPURATHU MADHAVAN, AGED 64 YEARS, SON OF IMBICHI, RETIRED TEACHER, RESIDING IN PUTHIYOTTIL HOUSE, CHAITHRAM, CHEVARAMBALAM, CHEVAYUR AMSOM AND DESOM OF KOZHIKODE TALUK. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT/RESPONDENT/DEFENDANT: --------------- NALUPURACKAL MANOHARAN, AGED ABOUT 32 YEARS, SON OF RAVUNNI, RESIDING AT NALUPURACKAL HOUSE, KARUVATTUR AMSOM, POLUR DESOM, KOZHIKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.1323 OF 2008 --------------------------- DATED THIS THE 16TH DAY OF JUNE, 2009 JUDGMENT Plaintiff in O.S.No.476/1998 on the file of the Additional Munsiff's Court-I, Kozhikode is the appellant. This appeal is directed against the judgment and decree in A.S.No.239/2003 on the file of the principal Sub Court, Kozhikode. Suit is for injunction with an alternative prayer for recovery of possession. The suit was dismissed by the trial court and allowed the counter claim of the defendants granting perpetual injunction as against the plaintiff. Plaintiff and defendants are subsequent purchasers of property allotted in Ext.A1 partition dated 15/11/1967. In the partition deed, Ext.A1 the respective sharers, from whom the property was purchased by the plaintiff and defendants, were allotted an extent of 35.75 cents each. According to the plaintiff, though in the aforesaid partition the extent shown is 35.75 cents, the extent allotted to -2- R.S.A.No.1323/2008 the vendor of the defendant is only 31.5 cents. Prohibitory injunction was granted restraining the plaintiff from trespassing into the plaint schedule property. According to the plaintiff, plot B shown in the Commissioner's plan forms part of the plaint A schedule and it is in his possession. 2. In the written statement, it is inter alia contended by the defendants that they purchased the property having an extent of 35.76 cents from Malu, who is the allottee in Ext.A1 partition deed. Out of the total extent of property possessed by the defendants after ear-marking a portion for the road, it is contended that they are in possession of 34 cents of land. The defendants also filed a counter claim seeking an injunction restraining the plaintiff from trespassing into the property scheduled in the written statement. 3. In support of the case PWs.1 and 2 were examined and Exts.A1 to A4(a) were marked on the side of the plaintiff and on the side of the defendants DWs.1 and 2 were examined and -3- R.S.A.No.1323/2008 Exts.B1 and B2 were marked. Advocate Commissioner was examined as PW-2. Commissioner's report and plan (Exts.C1, C1 (a), C2, C2(a), were also marked. The contention of the plaintiff is that though an extent of 35.75 cents of land is shown as the extent allotted to Malu, the correct extent of the defendant' property is only 35 ½ cents, that the plaint B schedule property forms part of plaint A schedule property and he is in possession of the said area. 4. The trial court, after examining the oral evidence and Commissioner's report and plan, rightly held that the defendants are in possession of 34 cents that the said property, which is situated 2 ½ feet higher in level than the plaint schedule property that there exists a well defined boundary made of granite stones separating both the parties. It also accepted the contention of the defendants that plot B shown in Ext.C1(a) plan is in possession of the defendants and it forms part of lst defendant's property. The Commissioner also reported that no -4- R.S.A.No.1323/2008 demarcating boundary could be seen on the northern boundary shown as B plot in Ext.C1(a) plan. The trial court disbelieved the contention of the plaintiff that the northern boundary of plot B is the northern boundary of the plaintiff. 5. The trial court, after evaluating the evidence on record, rightly held that the plaintiff has not able to substantiate his case. Moreover, the facts finding court held that there is no evidence to show that the plaintiff was ever in possession of plot B and that it forms part of plaint A schedule, whereas the evidence on record coupled with the Commission report and plan would show that the plaint B schedule forms part of defendants' property and the defendants are in possession of plot B shown in Ext.C1(a) plan. After entering into the findings on facts the trial court dismissed the suit and allowed the counter claim. 6. Plaintiff filed an appeal before the Lower Appellate Court. The Lower Appellate Court considered the entire evidence on record and also observed that there is no challenge -5- R.S.A.No.1323/2008 against the grant of injunction in favour of the defendants. The Appellate Court on facts agreed with the findings entered by the trial court and held that the plaintiff is not entitled to any relief in the suit. The reasoning and conclusions are based on the evidence on record and no other conclusions are possible in the given circumstances. I find no merit in the appeal and accordingly the appeal stands dismissed. HARUN-UL-RASHID, Judge. kcv. -6- R.S.A.No.1323/2008