IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 RSA.No. 416 of 2003(G) -------------------------------------- AS.17/1998 of PRL.S.C.,THALASSERY OS.552/1993 of ADDL.MUNSIFF COURT, KANNUR .................... APPELLANT/APPELLANT/PLAINTIFF: THALAPPAN MANIKKOTH GOVINDAN NAMBIAR, S/O. KUNHIRAMAN NAMBIAR, AGED 61 YEARS, BUSINESS, RESIDING AT AZHIKODE AMSOM DESOM, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN SRI.E.C.BIJU RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. CHELORAKKARAN DAMODARAN KURUP, S/O. NARAYANA KURUP, AGED 57 YEARS, NO OCCUPATION, RESIDING AT NEAR VALAPURAM PALAM, PAPPINISSERI AMSOM DESOM, KANNUR DIST.. 2. CHELORAKKARAN CHANDRAN,S/O. NARAYANA KURUP, AGED 56 YEARS, POLICE CONSTABLE, DO. DO. 3. CHELORAKKARAN BALAKRISHNAN, S/O. NARAYANA KURUP, AGED 54, CLERK, DO. DO. 4. CHELORAKKARAN VALLI, D/O.NARAYANA KURUP, AGED 52 YEARS, NO OCCUPATION,DO. DO. 5. CHELORAKKARAN BHARATHI, S/O. NARAYANA KURUP, AGED 49 YEARS, NO OCCUPATION, DO. DO. 6. CHELORAKKARAN THANKAMANI, D/O. NARAYANA KURUP, AGED 48 YEARS, NO OCCUPATION, DO. DO. BY ADV. SRI.V.R.KESAVA KAIMAL FOR R1 TO R6 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No. 416 of 2003 --------------------------- JUDGMENT The appeal is filed by the plaintiff in O.S.No. 552/93 on the file of the Munsiff's Court, Kannur for fixation of boundary to the plaint schedule property. The suit was dismissed concurrently by the trial court as also by the first appellate court. Hence this Regular Second Appeal. 2. The appellant filed O.S.No.552/93 aforesaid inter alia, on the allegations that he purchased the property from Manikkoth Prabhakaran Nair as per Exhibit A1 on 12.8.1991; that the defendants are having properties on the north eastern side (counsel submits that actually it is north western side, though mistakenly it was stated as north eastern in the plaint); that as there was boundary dispute, the Village Officer, Azhikode South Village, measured the property and it was peg marked; that thereafter on 29.9.1993, the first defendant removed the poles fixed at the time of RSA 416/03 2 measurement and the defendants' relative Pradeepan abused the plaintiff on this score; that the first defendant is making trouble with regard to the boundary and he has professed that he will trespass into his property and hence the suit for fixation of boundary of the plaint schedule property. 3. The first defendant filed written statement contending that there is clear demarcating boundaries to identify the properties of the plaintiff and himself; that his property lies on the north eastern side; that his brother's are also having rights over the property; that they are also necessary parties to the suit; that there was no boundary dispute between the plaintiff and himself; that the Village Officer had not measured the property on 26.9.2003; that there was no incident of his removing the peg marks and poles as alleged; that the plaintiff is not entitled to any relief, as there is no cause of action for the plaintiff and that the suit has to be dismissed. RSA 416/03 3 4. On the contentions of the original defendant, defendants 2 to 6 were impleaded to cure the defect of non-joinder of parties. Defendants 2 to 6 filed written statement contenting that they have got 16 cents of land in Sy.No.646/1 of Azhikode amsom desom; that the re-survey number of the property is 396/15 of Azhikode South Village; that the property was originally purchased by Nambi Yajamanan and Chandu Yajamanan as per Exhibit B1 in 1931; that on their death, the property devolved on the defendants; that the first defendant obtained purchase certificate from the Land Tribunal, Kannur as per Certificate No.7421/76; that the said property is in exclusive possession of the defendants; that the plaintiff is having a shop room on the south eastern corner of the property; that he is having only a shop building and no other vacant land is possessed by him; that the attempt of the plaintiff is to annexe portions from the properties of the defendants whereas, there was actually no boundary dispute and that there is no RSA 416/03 4 bona fides in the allegations and the suit is liable to be dismissed, as it is only for fixation of boundary. 5. On the above pleadings, the trial court raised necessary issues for trial and considering the pleadings of the rival parties and evidence adduced at trial, which consisted of oral evidence of PW1 and DW1 and documentary evidence Exhibits A1 to A3, B1 and B2 and Exhibits C1 and C2, decreed the suit. The aggrieved plaintiff preferred appeal before the first appellate court as A.S.No.17/98 and that was also dismissed confirming the correctness of the judgment passed by the trial court. Hence this Regular Second Appeal by the plaintiff. 6. It is contended before me by the learned counsel for the appellant, on the basis of Exhibit C2 plan submitted by the Commissioner, that B-C line should have been fixed as the boundary line separating the properties of the plaintiff and the defendants; that there was no justification to fix RSA 416/03 5 the western side of the shop building as the western boundary; that the defendants are having land in excess of what has been purchased by them under Exhibit B1 and that therefore, it should have been found that the plaint schedule property extends to B-C line in Exhibit C2 plan. 7. It is not in dispute that the property on the west of the scheduled property and the property on the north or north east, as the case may be, of the scheduled property are lands in possession of the defendants. The location of the plaint schedule property is shown by the Commissioner in Exhibit C2 plan as being on the south eastern corner of the property of the defendants and correctness thereof is not in dispute. It is submitted by the counsel for the appellant that 0.075 cents excluded under Exhibit B1 is the property shown as INGJ plot in Exhibit C2 plan and that it belongs to somebody else. However, that property is not anywhere near the scheduled property. RSA 416/03 6 8. The description of the scheduled property in the plaint, following its description in Exhibit A1, is as follows: So, what has been transferred in favour of the plaintiff under Exhibit A1 is the southern shop room from out of the two shop rooms on the north eastern portion of Pothimadom Parambu along with the first floor of both the shop rooms and the north eastern space adjoining the shop rooms as also the shed adjoining the shop room. Exhibit C1 commissioner's plan shows that what has been described as north east is in fact south east and the counsel for the appellant has also no quarrel RSA 416/03 7 on that aspect and the courts below also have disposed of the case on the assumption that the shop rooms are on the south eastern corner. The description of the scheduled property, however, did not enable an interpretation being taken that Exhibit A1 takes in any portion of land on the west of the shop rooms, so as to have B-C line as the demarcating line, separating the properties of the plaintiff and the defendants, as drawn by the Commissioner in Exhibit C2 plan. The courts below, therefore, correctly refused to accept B-C line as the demarcating line between the properties of the plaintiff and the defendants on its west. The courts below also found that the plaintiff is not having any property beyond west of the shop rooms and that the bit of land with the plaintiff gets along with the ground floor shop room under Exhibit A1 is the land on the south eastern portion of the shop room. Apart from advancing prayer to have B-C line fixed as the boundary, the appellant/plaintiff has no case that boundary has to be put up along RSA 416/03 8 the western boundary line or that boundary on any other portion has to be fixed or put up. Hence, the relief prayed for was, rightly, being rejected by the courts below. 9. It is worthy to note that this is not a case where the plaintiff wants to have boundary put up for the plaint schedule property, but, he wants only its demarcation without specifying as to in what manner it should be demarcated. Even in the plaint, his allegation is that the Azhikode South Village Officer measured the property and had fixed stumps demarcating the boundary, but, on the third day the defendants threw away those stumps. Obviously, therefore, the dispute between the parties could be settled, even on the allegations made in the plaint, only by putting up of a boundary, but, ingeniously, the appellant/plaintiff has avoided asking for any such relief for the reason that if at all the western boundary of Exhibit A1 property scheduled to the plaint is found to be the western boundary wall of the shop RSA 416/03 9 rooms, then certainly, there is no need of putting up of any boundary wall. It was, in the above circumstances, that the courts below have refused to grant the relief prayed for by the appellant/ plaintiff and dismissed the suit concurrently. There is no merit at all in this Regular Second Appeal and no substantial question of law arises for consideration by this Court in this Regular Second Appeal as is attempted to be made out in the appeal memorandum. This Regular Second Appeal, in the circumstances, is dismissed in limine, refusing admission. 18th June, 2008 (K.P.Balachandran, Judge) tkv RSA 416/03 10 K.P.Balachandran, J. --------------------- R.S.A.No.416 of 2003 --------------------- JUDGMENT 18th June, 2008