IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 RSA.No. 524 of 2008() --------------------- AS.142/2007 of SUB COURT, PERUMBAVOOR OS.1/1995 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/RESPONDENT/PLAINTIFFS -------------------- MATHAI, AGED 80 YEARS, S/O. CHACKO, KANJIYODIKKAL HOUSE, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK BY ADV. SRI.P.SATHISAN RESPONDENT(S): --------------- 1. ANTONY, AGED 49 YEARS, S/O. OUSEPH, VELBILLIMOOLAI, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK 2. VARGHESE, AGED 44 YEARS, S/O. OUSEPH, VELBILLIMOOLAI, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK 3. KUNJECHAN, AGED 52 YEARS, S/O. OUSEPH, VELBILLIMOOLAI, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK ADV. SRI.K.S.MADHUSOODANAN FOR R1 TO 3 ADV. M/S. SRI.T.V.JAYAKUMAR NAMBOODIRI, SRI.THUSHAR NIRMAL SARATHY , SRI.M.M.VINOD KUMAR AND SMT.K.M.RAMYA FOR R1 TO 3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 524 of 2008 * * * * * * * * * * * * * * * * * * Dated: 16-10-2008 JUDGMENT The plaintiff in O.S. 1 of 1995 on the file of the Munsiff's Court, Perumbavoor is the appellant in this Second Appeal. The said suit was one for a perpetual injunction restraining the defendants from entering into plaint A schedule property and interfering with the kayyala situated on the western boundary of the property admeasuring 25 cents. Pending suit the plaintiff amended the suit as one for recovery of possession of the plaint schedule item No. 2 kayyala allegedly trespassed upon and reduced to their possession by the defendants. 2. The trial court decreed the suit. On appeal preferred by the defendants, the lower appellate court reversed the decree and dismissed the suit. Hence, this Second Appeal. 3. The lower appellate court has inter alia observed R.S.A. No. 524 of 2008 -:2:- that the disputed kayyala is comprised in old survey No. 319/6 and 7 of Kizhakkambalam Village which is covered by the title deeds of the defendants. The lower appellate court has also found that the line demarcating the old survey number of the plaint schedule item No.1 is line AD which is far outside the old survey number 319/5 which takes in the property of the plaintiff . The lower appellate court has also observed that the plaintiff has no case that he has any property comprised in old survey number 319/6 and 7. Merely because the kayyala was shown in the property comprised in the resurvey number pertaining to the plaint schedule item No. 1, it cannot be held that the defendants who had title over the kayyala which was comprised in survey number 319/6 and 7 has lost their title. It is well settled that re-survey operations were conducted on the basis of possession and not on the basis of title. Such being the position, the plaintiff who could get a decree only on proof of title over the kayyala was rightly non- suited by the lower appellate court. No question of law, R.S.A. No. 524 of 2008 -:3:- much less, any substantial question of law arise for consideration in this Appeal. The questions of formulated at page 5 of the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 16th day of October 2008. Sd/- V. RAMKUMAR, (JUDGE) /true copy/ ani.