IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 RSA.No. 428 of 2008() --------------------- AS.85/2004 of SUB COURT, NEDUMANGAD OS.327/1999 of PRINCIPAL MUNSIFF COURT,NEDUMANGAD .................... APPELLANT/2ND APPELLANT/ADDL. 2ND DEFENDANT: ------------------------------------------------------- VIMALRAJ, S/O.KUTTAN NADAR, AGED 57, RAJ BHAVAN, MULAYAMCODE, VEERANAKAVU VILLAGE. BY ADV. SRI.S.MOHAMMED AL RAFI SHRI P.SATHEESH KUMAR RESPONDENT(S): RESPONDENT AND 1ST APPELLANT/PLAINTIFF & DEFENDANT NO.1: ----------------------------------------------------------- 1. P.VARKEY KURIAN, PARANGATTU VEEDU, PANTHA, VAZHICHAL VILLAGE, NEYYATTINKARA. 2. THAPASIMUTHU, S/O.ESSAKIYAN, SHAJI BHAVAN, PURAPOTTA, THOTTAMPARA, VEERANAKAVU VILLAGE, KATTAKKADA. ADV. SRI.V.SURESH FOR R1 SRI.G.SUDHEER KARAKONAM FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.428 of 2008 -------------------------------------- Dated this the 25th day of January, 2010. JUDGMENT Respondents are served. Respondent No.1/plaintiff appear through counsel. 2. Second Appeal is at the instance of defendant No.2 in O.S.No.327 of 1999 of the court of learned Principal Munsiff, Nedumangad. Respondent No.1 filed the suit initially for a decree for prohibitory injunction against respondent No.2/defendant No.1 claiming that he is in possession of the suit property. Appellant was impleaded as additional defendant No.2 and the plaint was amended incorporating prayer for fixation of boundary while retaining the relief already prayed for. According to respondent No.1, 18.750 cents of land belonged to him as per Exts.A1 to A4. He produced Ext.A5, receipt for payment of revenue to show that he is in possession of the said property. According to him, as originally stated in the plaint there is boundaries on all sides of the suit property. As per the re-survey the extent of the property is 18.350 cents in R.S.Nos.154/22 and 154/40, falling in Block No.43. It is his case that of the said 18.350 cents 935 sq. links was taken for formation of a road and the remaining extent, ie.17.450 cents is the property described in the plaint schedule. Respondent No.2 has property on the east while property of appellant is on north of the suit property. As per amended plaint, it is stated that RSA Nbo.428/2008 2 there is no well defined boundary on the north of the suit property and that appellant attempted to trespass into the suit property and widen the pathway. Appellant and respondent No.2 are using five links wide pathway on the south of the suit property. Appellant and respondent No.2 contended that there was no attempt on their part to annex any portion of the suit property to the pathway. They claimed that there is road on the south and east of the suit property which is not disclosed by respondent No.1. According to them, road on the south was having width of eight (8) feet which was widened into a road having width of 14 feet making use of land surrendered by adjacent land owners and on the east of the suit property there is a way having width of a nine (9) feet. Trial court found that respondent No.1 has title and possession of 17.415 cents marked by the advocate commissioner in Ext.C2(a), plan as TLIJKGH plot. Based on Exts.C2 and C2(a) the southern and eastern boundary of the suit property was fixed. First appellate court confirmed judgment and decree of the trial court . That is under challenge in this Second Appeal at the instance of appellant/defendant No.2 raising by way of substantial questions of law whether courts below were justified in accepting and acting upon Exts.C2 and C2(a) without examining the advocate commissioner and whether courts below went wrong in fixing the boundary as shown in Ext.C2(a), plan?. Learned counsel for appellant/defendant No.2 contends, urging the above points that the concurrent finding entered by the courts below is erroneous. It is contended by learned counsel that though the suit was originally filed for injunction alone, during the pendency of the suit appellant/defendant No.2 was impleaded on a fresh cause RSA Nbo.428/2008 3 of action, the amendment ought not to have been allowed as it changed the nature and character of the suit and hence the decree under challenge cannot be sustained. According to the learned counsel for respondent No.1/plaintiff there is no reason to interfere with the concurrent finding of fact entered by the courts below. 3. Title of respondent No.1 is proved by Exts.A1 to A4. Contention raised by appellant and respondent No.2 is as regards the existence of road on the south and east of suit property. Ext.C2 is report of the advocate commissioner and Ext.C2(a) , the plan prepared by the advocate commissioner after measurement of the properties. Though entitlement of respondent No.1 as per Exts.A1 to A4 is for 18.750 cents, he admitted that 935 sq. links was taken for the purpose of formation of road and what remained is 17.450 cents which is scheduled in the plaint. Commissioner on measurement found the extent of available land as 17.415 cents and it is accordingly that the suit property was identified. Though in the foot-note to Ext.C2(a) it is stated that the boundary has to be put up along TLP and PMS lines (on the south and east of the suit property, trial court found from the evidence that actual boundary is TL line on the north, LIJK line on the east, GK line on the south and GHT line on the west and not as stated in the foot-note to Ext.C2(a). Trial court has also observed that as per order dated 20.10.2003 it was held that there is no reason to reject Exts.C2 and C2(a). The contention advanced by learned counsel for appellant is that without examining the advocate commissioner and surveyor Exts.C2 and RSA Nbo.428/2008 4 C2(a) should not have been accepted or acted upon. That argument runs counter to the provision under Order 26 Rule 10(2) of the Code of Civil Procedure brought in by amendment of 1976 and the decision of Division Bench of this Court in State of Kerala v. Kottammal Mammeeriyakutty and others (AIR 1985 Kerala 109). The above provision and the decision of Division Bench of this Court informs me that when the advocate commissioner has submitted report and plan with notice to the parties it formed part of the records and is in evidence. It is for the party who challenges the report and plan to examine the advocate commissioner or the surveyor as the case may be and substantiate his objection. Nothing of that sort has happened in this case. Hence, there is nothing illegal or irregular in the courts below accepting and acting upon Exts.C2 and C2(a) even without examining the advocate commissioner. 4. The contention that trial court has varied the report of the advocate commissioner without examining him and hence the judgment and decree are bad is unsustainable. Trial court observed that what is stated by the advocate commissioner in the foot-note to Ext.C2(a) is not the correct boundary. But I must bear in mind that trial court has fixed the boundaries as per Ext.C2(a). RSA Nbo.428/2008 5 5. Equally unsustainable is the contention that amendment of plaint after impleading appellant has changed nature and character of the suit. The suit as originally instituted is for prohibitory injunction. Considering the nature of contention raised, respondent No.1 has sought for fixation of boundary of the property also while asserting that he continued to be in possession of the suit property and that he is entitled to a decree for prohibitory injunction appellant did not adduce any acceptable evidence to substantiate his contentions. Courts below have rightly found on the strength of Exts.A1 to A5, C2 and C2(a) that respondent No.1 has title and possession of the property referred to in Ext.C2(a) and is entitled to fixation of boundary as prayed for. I do not find any substantial question of law involved requiring admission of the appeal. Resultantly, the Second Appeal is dismissed in limine. I.A.No.1047 of 2008 will stand dismissed. THOMAS P.JOSEPH, Judge. cks