IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 RSA.No. 562 of 2006 --------------------------------- AS.90/2003 of ADDL. DISTRICT COURT (ADHOC-II), KOLLAM OS.673/1997 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANTS/APPELLANTS/PLAINTIFFS: 1. NARENDRAN NAIR, T.C.24/1755, JISHA VEEDU, THYCAUD ELANKARA NAGAR, THYCAUD, THIRUVANANTHAPURAM FROM ORIYARIKONATHU VEEDU, KARIPOOR MURI, NEDUMANGADU VILLAGE. 2. DEVAKI AMMA SUBHADRA AMMA, JISHA VEEDU, T.C.24/1755, FROM MULLASSERI KALEEKAL, PADANAYARKULANGARA SOUTH MURI, KARUNAGAPPALLY VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. KUNJUKRISHNA PILLAI ASHOK KUMAR, MULLASSERI KALEEKKAL VEEDU, PADANAYARKULANGARA SOUTH MURI, KARUNAGAPPALLY VILLAGE. 2. KOCHUMANI AMMA JAYALEKSHMI, OF DO. 3. RADHADEVI AMMA, OF DO. 4. KUNJUKRISHNAPILLAI ARAVINDAKUMAR, ALAKKOTTU VEEDU, KOTTAMPALLY WARD, MADATHIL KARAYMA MURI, OACHIRA VILLAGE. BY ADV. SRI.P.B.SURESH KUMAR FOR R1 TO R3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No.562 of 2006 --------------------------- JUDGMENT Plaintiffs in O.S.No.673/97 on the file of the Munsiff's Court, Karunagappally are the appellants and the respondents are defendants 1 to 4 in the said suit. 2. Appellants/plaintiffs instituted O.S.No. 673/97 aforesaid as against defendants 1 to 5 for fixation of boundary of the suit properties and for injunction, both prohibitory and mandatory, inter alia, on the allegations that the plaintiffs are husband and wife; that defendants 1, 2 and 4 are brothers and sister and the third defendant is the wife of the first defendant; that they obtained plaint schedule item No.1 property and the building situated therein vide Sale Deed No.2791/1956; that the second plaintiff obtained title and possession over plaint schedule item No.2 property as per Partition Deed No.292/1985; that the scheduled properties are lying as a compact block; that the RSA 562/06 2 properties situated on the southern side of plaint schedule item No.1 property and south-eastern side of plaint schedule item No.2 property belong to defendants 1 to 4; that the properties situated on the northern side of plaint schedule item No.1 property and eastern side of plaint schedule item No.2 property belong to the fifth defendant; that the scheduled properties and the properties of the defendants originally belonged to Mullassery Kaleekal family and plaintiffs and defendants obtained their respective properties as per the partition deed executed by the members of the family and also as per the sale deed aforementioned; that since the plaintiffs and defendants are close relatives, no boundary or fencing was put up, separating the scheduled properties and the adjoining properties belonging to the defendants; that the plaintiffs are permanently residing in Thiruvananthapuram for the last so many years and they occasionally come to the scheduled properties; that while so, on RSA 562/06 3 9.10.1997,when the plaintiffs visited the scheduled properties, they found that some southern portion of the foundation basement constructed on the eastern side of plaint schedule item No.1 property was demolished and the defendants have trespassed into southern portion of plaint schedule item No.1 and eastern portion of plaint schedule item No.2 properties and extended their building into plaint schedule item No.1 property and have also constructed a new fencing after removing the survey stones; that on enquiry, it was found that the first defendant has done the same; that since the second defendant is the southern property owner of plaint schedule item No.1 property, he is made a party to the suit and that though the plaintiffs demanded the defendants to measure and fix the southern boundary of plaint schedule item No.1 property and eastern boundary of plaint schedule item No.2 property and remove the portion of the unauthorisedly constructed building and fencing, they were not amenable for the same. Hence the RSA 562/06 4 suit for fixation of southern boundary of plaint schedule item No.1 property and eastern boundary of plaint schedule item No.2 property and also for a mandatory injunction directing the defendants to demolish the unauthorisedly constructed building portion as also the fencing from the scheduled properties and to have vacant possession of the said portion and in case the defendants fail to do so, they prayed for a decree allowing recovery of possession of the same and also for a permanent injunction restraining the defendants from trespassing into the plaint schedule properties or committing any acts of waste or mischief therein. 3. The fourth defendant remained absent and ex parte. 4. Defendants 1 and 2 filed a joint written statement and the third defendant filed a separate written statement containing almost the same contentions raised in the written statement of defendants 1 and 2. The fifth defendant also filed a separate written statement. RSA 562/06 5 5. The contentions of defendants 1 and 2 are that for fixation of boundary of plaint schedule properties, plaintiffs have filed O.S.No.751/88 before the lower appellate court and in that case, as per the application of the plaintiffs, an Advocate Commissioner, with the help of the Taluk Surveyor, measured the properties and fixed the boundaries and hence the present suit is not maintainable; that separating the plaint schedule properties and the adjoining properties of the defendants, there is boundary and fencing of more than forty years old, but there is no boundary in between the building of the plaintiffs and defendants; that about six to seven years back, the plaintiffs trespassed into the properties of the defendants and constructed a granite foundation of seven metre length and forty centimetre width; that from the north-eastern corner of the said foundation, there is fencing towards east; that there is also survey stones separating the plaint schedule properties and the properties of the RSA 562/06 6 defendants; that the allegation that on 9.10.1997, when the plaintiffs came to the plaint schedule properties, they found that the eastern boundary of the schedule properties was demolished and defendants had trespassed into the scheduled properties and extended some portion of the building into the scheduled properties is incorrect; that the terraced portion of the building of the family house of the defendants was constructed in the properties of the defendants; that the allegation that the plaintiffs demanded the defendants to measure out and fix the boundaries of the scheduled properties is incorrect; that the re-survey in the area has become final on 1.5.1997 and so the plaintiffs have no right to fix the boundaries of the plaint schedule properties on the basis of the old survey plan; that if the plaintiffs have any objection against the re-survey plan, they ought to have filed objections to the re-survey authorities; that if at all any portion of the building of the RSA 562/06 7 defendants is abutting into the scheduled properties, the right of the plaintiffs to demolish the same is barred by limitation and that the plaintiffs are not entitled to any relief and the suit deserves to be dismissed. 6. The fifth defendant contended that there is a strong and well defined boundary from 1102 M.E. onwards, separating the scheduled properties and her property; that she obtained six cents of property on the northern side of the scheduled properties as per Sale Deed No.1000/1983; that she obtained another six cents of property with one cent of excess land as per Sale Deed No.1402/1992; that the said properties are lying in a compact block and is comprised in R.S.No.430/7, having an extent of six ares; that she is in possession of the said property in continuation of possession by her predecessors in interest; that while so, in 1988, the plaintiffs have filed suit O.S.No.751/88 against her husband for fixation of boundary and for recovery of possession on the allegation that RSA 562/06 8 her husband trespassed into the scheduled properties and took forcible possession of about two cents of property; that a Commissioner had been deputed in that case and he fixed the boundaries of the properties and also stated that 200 sq.links of plaint schedule properties was in possession of her husband; that the suit was decreed in favour of the plaintiffs allowing them to recover 200 sq. links of property from her husband; that against the judgment and decree, her husband filed A.S.No.73/94 before the District Court, Kollam and that was dismissed; that the said judgment was assailed in S.A.No.13/98 before this Court and this Court allowed the second appeal and set aside the judgments of the courts below and dismissed the suit; that though the plaintiffs have preferred S.L.P.No.7020/99 before the Supreme Court, that was also dismissed; that the plaintiffs, in the circumstances, have no right to institute the present suit against her; that the rights of the plaintiffs, if any, is lost by adverse possession RSA 562/06 9 and limitation and that the plaintiffs have no cause of action against her. On the above contentions, she prayed for a dismissal of the suit. 7. The trial court raised necessary issues for trial and considering the evidence adduced in the case, which consisted of oral evidence of PWs 1 and 2 and documentary evidence Exhibits A1, A2, B1 to B5 and C1 to C4, decreed the suit in part, fixing the southern boundary of plaint schedule item No.1 property as F-G line and eastern boundary of plaint schedule item No.2 property as B-F line in Exhibit C4 plan and allowing the plaintiffs to put up a strong boundary or compound wall through the F-G and B-F lines in Exhibit C4 plan and restraining the defendants by a decree of permanent prohibitory injunction from trespassing into plaint schedule properties, shown as FGHC and ABFCDE plots in Exhibit C4 plan and from committing any acts of waste therein. The prayer for mandatory injunction was dismissed. Being not satisfied with the decree, RSA 562/06 10 partly decreeing the suit, plaintiffs preferred A.S.No.90/03 before the first appellate court and the appellate court dismissed the appeal confirming the correctness of the judgment and decree passed by the trial court. Hence this Regular Second Appeal. 8. It is vehemently contended before me by the learned counsel for the appellants that though the scheduled properties were described in the plaint schedule originally assigning its old survey numbers, the plaint was got amended incorporating the corresponding re-survey numbers, as re-survey was completed in the locality and that consequent thereon, I.A.No.2266/02 was filed seeking for Commissioner being deputed to have the boundaries fixed as per re-survey plan, but that was dismissed by the trial court and thereafter decree was passed in the said suit conducting a trial of the case. According to him, the boundary fixed as per the old survey plan is not acceptable and the re-survey plan, which has become final, ought to have been RSA 562/06 11 made the basis for fixing the boundary of the scheduled properties. The request of the learned counsel for the appellants is to have Exhibits C2 to C4 set aside and the case remitted back to fix the boundary as per the re-survey plan. 9. Plaintiffs moved commission application to measure out the properties on the basis of the old survey plan. The trial court is seen to have observed that at the time of hearing of the commission application, the learned counsel appearing for the plaintiffs conceded that the properties need be measured as per the old survey plan only. In Exhibit C2 mahazar, the Commissioner has categorically stated that the Taluk Surveyor came with old as well as re-survey plans for measuring the properties and at that time, the plaintiffs insisted that the properties need be measured on the basis of the old survey plan only. It was, subsequently, that the plaintiffs have included the re-survey number also in the plaint schedule by amending the plaint. RSA 562/06 12 10. The trial court was of the opinion that since the plaintiffs have conceded that the properties need be measured only as per the old survey plan, the plaintiffs cannot now turn round and say that Exhibits C2 to C4 are to be set aside and a fresh commission issued to measure out the properties as per the re-survey plan. The trial court also observed that though an argument was advanced even before that court to have a re-survey conducted as per the re-survey plan, the first plaintiff has admitted, when examined as PW1, that he has no objection in fixing the boundaries of the scheduled properties as per the plan submitted by the Commissioner. It is also observed by the trial court that when the case was taken up for argument, the learned counsel appearing for defendants 1 to 3 also submitted that for avoiding prolonged litigation, they have no objection in decreeing the suit accepting Exhibits C2 to C4 commission report, mahazar and plan. It was in view of the admission of PW1 in cross examination that already there RSA 562/06 13 exists a strong boundary, separating the plaint schedule properties and the northern property of the fifth defendant and there is no dispute regarding that boundary, that the trial court found that there is no necessity to put up a boundary separating the plaint schedule properties and the northern property of the fifth defendant. It was further observed that O.S.No.751/88, filed by the plaintiffs for fixing the boundary of the scheduled properties, separating the northern property of the fifth defendant, though was decreed by the trial court and A.S.No.73/94 filed therefrom was dismissed by the first appellate court confirming the judgment of the trial court, S.A.No.13/98 filed before this Court was allowed and the decree granted by the trial court was set aside and the special leave petition filed before the Apex Court was also dismissed and for those reasons, the plaintiffs are not entitled to fix the boundaries separating the plaint schedule properties and the northern property of the fifth defendant. It is to RSA 562/06 14 substantiate the contention of the fifth defendant that Exhibits B1 to B5 documents were produced before the trial court. The trial court found that Exhibit B2 plan showed that at the time of filing of Exhibit B1 suit, the plaintiffs were in possession of only thirty cents of property in Sy. No.158/95 and twenty three cents of property in Sy. No.158/96 and that Exhibit B2 had not been challenged by the plaintiffs. It is clear from Exhibits B3 to B5, copies of judgments, that though O.S.No.751/88 was decreed by the trial court and by the first appellate court, that was finally being dismissed by this Court and therefore, the suit as against the fifth defendant is not maintainable and no relief can be granted against the fifth defendant. The appellants accepted the said verdict of the trial court and has filed appeal before the first appellate court impleading only defendants 1 to 4, excluding the fifth defendant. 11. It is also pointed out by the counsel for the appellants that before the trial court, counsel RSA 562/06 15 for the plaintiffs also submitted that no relief is required as against the fifth defendant. As observed earlier, it was in view of the admission of PW1 that it is enough that boundary is fixed accepting Exhibit C4 plan and in view of the submission of the counsel for defendants 1 to 4 that they have no objection in decreeing the suit accepting Exhibit C4 plan, that the court below accepted Exhibit C4 plan and passed a decree in terms thereof as against defendants 1 to 4 allowing the plaintiffs to put up a boundary separating the plaint schedule properties from the properties of defendants 1 to 4, fixing the southern boundary of plaint schedule item No.1 property as F-G line and eastern boundary of plaint schedule item No.2 property as B-F line. In the circumstances, there is no merit in further advancing argument that the properties should have been measured and boundary fixed on the basis of the re-survey plan, unless it be for reason of desire to grab some more properties from the possession of defendants 1 to RSA 562/06 16 4. There is no merit at all in this Regular Second Appeal and this Regular Second is dismissed in limine, refusing admission. 18th August, 2008 (K.P.Balachandran, Judge) tkv