IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 RSA.No. 367 of 2007() --------------------- AS.85/2002 of PRL.SUB COURT,KOTTAYAM OS.258/1995 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT/APPELLANT/5TH PLAINTIFF: --------------------------------------------------------------- * E.G.NARAYANA KURUP, RETIRED TEACHER, VADAKKATTU HOUSE, PERUNNA WEST MURI, CHANGANACHERRY. (SINCE DIED – LRS IMPLEADED) *ADDL.APPELLANTS 2 TO 7 ARE IMPLEADED: A2. OMANAKUNJAMMA, AGED 60 YEARS, W/O.LATE E.G.NARAYANAKURUP, VADAKKATTU HOUSE, PANACHIKAVU P.O., PERUMANA WST, CHANGANACHERRY. A3. SREELATHA, AGED 37 YEARS, D/O.E.G.NARAYANAKURUP, VADAKKATTU HOUSE, ...DO..DO.... A4. SREELEKHA, AGED 35 YEARS, D/O. ...DO..DO... A5. LOLITHA, AGED 33 YEARS, D/O. ..DO...DO.... A6. DARSANA, AGED 30 YEARS, D/O......DO...DO... A7. SUDARSANA, AGED 30 YEARS, D/O. ..DO...DO.... (*ADDL.APPELLANTS 2 TO 7 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED APPELLANT VIDE ORDER DTD. 01/02/208 IN I.A.NO.1485/2007) BY ADV. SRI.JOHN JOSEPH VETTIKAD SRI.SABU GEORGE Kss ..2/- ...2..... R.S.A.NO.367/2007 RESPONDENTS: RESPONDENTS:DEFENDANTS AND PLAINTIFFS 1,3 &4: ----------------------------------------------------------------------------------------------------------- 1. SARADHAKUTTYAMMA, D/O.PANKIYAMMA, MUTHALAPPALLIYULAYA ASHA BHAVAN, CHANGANACHERRY. 2. M.N.RAVINDRAN NAIR, H/O.SARADAKUTTYAMMA OF DO. DO. 3. RAMAKRISHNA KURUP, GOVINDA MANDIRATHIL, THAYAMKARI MURI, KOZHIMUKKU VILLAGE, EDATHUA, KUTTANADU TALUK. 4. K.G.EASWARA KURUP, PARAYIL HOUSE, PULLANGADY MURI, CHAMPAKULAM VILLAGE, KUTTANADU TALUK, ALLEPPEY DISTRICT. 5. VIKRAMA KURUP, AMBIKA SADANAM, PERUNNA MANGALAM MURI, MARARIKULAM VILLAGE, CHERTHALA TALUK, ALLEPPEY. 6. CHANDRA MOHANAN C.C., S/O.CHANDRASEKHARA KURUP, DARPPAN HOUSE, VADAKKUMTHALA MURI, KARUNAGAPPALLY TALUK, KOLLAM. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/02/2008 ALONG WITH RSA NO. 369 OF 2007 AND RSA NO. 483 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.821/2007 IN R.S.A.NO.367/2007 DISMISSED 1/02/2008 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO.367/07,369/07 & 483 OF 2007 =========================== Dated this the 1st day of February,2008 JUDGMENT Plaintiff in O.S.184/1995 who is the 5th plaintiff in O.S.258/1995 and the first defendant in O.S.300/1995 is the appellant. R.S.A.No.367/07, 369/07 and 483/07 were respectively filed challenging the common judgment in O.S.258/1995, O.S.184/1995 and 300/1995 as modified by first appellate court in A.S.85/2002, A.S.249/2001 and A.S.77/2001. O.S.184/1995 is a suit for injunction. O.S.258/1995 is a suit for declaration of title and permanent prohibitory injunction. O.S.300/1995 is a suit filed by first respondent in R.S.A.483/2007, for declaration of his title, fixation of boundary and permanent prohibitory injunction and damages. Plaint schedule property in O.S.258/1995 is item No.3 of the plaint schedule properties in O.S.300/1995. Item No. 1 and 2 are the properties of respondents. The dispute in the R.S.A.367/07,369/07 & 483/07 2 suits is with regard to a portion of the property which lies to the north of the property admittedly in the possession of respondents and to the south of the property admittedly in the possession of appellant, which is marked in Ext.C2(a) plan as the green shaded plot. It lies to the south of 51.3 links line and to the north of ED line. Appellant claimed that the disputed portion forms part of his property. First respondent claimed that it forms part of his property. The right and title of appellant to his property covered under Ext.A2 to A5 is not disputed. So also title of respondents to the property covered under Exts.B1 to B12 is also not disputed. Both appellant and first respondent are claiming portions of the property, their right being allotted to different sharers under Ext.A1 partition deed. Appellant claimed that disputed portion of the property forms part of the property allotted to his assignor. First respondent claimed that it forms part of the property which was allotted to their assignor. R.S.A.367/07,369/07 & 483/07 3 Learned Munsiff on the evidence of Pws.1 to 10, Dws.1 to 4 and Exts.A1 to A8 series and Exts.B1 to B26 and Exts.C1 to C2(a) found tht ED line is the demarcating boundary which separates the property of respondent and appellant. Learned Munsiff therefore fixed the boundary in O.S.300/1995, in accordance with Ext.C2(a) plan holding that ED line is the separating boundary of the properties. O.S.184/1995 and O.S.258/1995 were accordingly dismissed. Title of first respondent to the property marked plot A B C D E F A in Ext.C2(a) plan was declared. The common judgment was challenged before Sub Court, Kottayam in A.S.77/2001, 85/2002 and 249/2001. A.S.77/2001 was filed by first respondent plaintiff in O.S.300/1995 and other appeals were filed by the present appellant 5th plaintiff in O.S.258/1995 and plaintiff in O.S.184/1995. Learned Sub Judge on reappreciation of evidence found that trial court fixed ED line as the separating boundary based on the finding that the boundary between the R.S.A.367/07,369/07 & 483/07 4 property was the level difference of the property and as per the title deed of first respondent and appellant separating the boundary could only be 51.3 links line. Learned Sub Judge also found that under Exts.B23 and B24 appellant sold the property reiterating that the extent of the property is 53 cents and if that be so the said 53 cents could only be towards the north of 51.3 links line and not inclusive of the disputed green shaded plot. Learned Sub Judge also found that as per the title deed of first respondent he has title to 1.06 acres of the property and it could only be so if the northern boundary is the 51.3 links line. First appellate court dismissed A.S.249/2001 and A.S.85/2002 and allowed A.S.77/2001 and fixed 51.3 links line marked in Ext.C2(a) plan, as the separating boundary of the property of appellant and first respondent. These appeals are filed challenging the judgment of learned Sub Judge. 2. On the death of appellant his legal heirs were impleaded as additional appellants 2 to 7. R.S.A.367/07,369/07 & 483/07 5 3. Learned counsel appearing for appellants was heard. 4. The argument of learned counsel is that trial court appreciated the evidence in the proper perspective and believing the evidence of Pws.1 to 10 found that the properties are enjoyed treating the level difference between the property of appellant and first respondent as the boundary and therefore correctly found that ED line is the separate boundary. Learned counsel also argued that property cannot be identified with reference to the extent as the extet shown in the title deeds are not correct and properties were enjoyed through out treating the level difference as the physical boundary and first appellate court was not justified in interfering with the decree. Learned counsel also argued that evidence on record with the difference in the mode of improvement and enjoyment of the disputed property as well as the property of appellant and respondents establish that the disputed property is being enjoyed as part R.S.A.367/07,369/07 & 483/07 6 of the property of appellant treating it as the property obtained by them under Ext.A2 to A5 and not as part of the property claimed by first respondent under Exts.B1 to B12. It is therefore argued that first appellate court was not at all justified in fixing 51.3 links line as the boundary instead of ED line as was correctly done by trial court. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeals. 6. The dispute is with regard to a strip of land which lies admittedly to the north of the admitted properties of first respondent and to the south of the admitted property of appellant. Both appellant and first respondent are claiming title based on Ext.A1 partition deed under which properties were divided and allotted to different shares. If the properties are fixed with reference to the extent of the properties covered under the title deeds, then ED line cannot be the separating R.S.A.367/07,369/07 & 483/07 7 boundary of the properties. The trial court accepted ED line as the separating boundary accepting the case of appellant that the level difference between the properties was treated as the separating boundary as the level difference starts from ED line and it was treated as the separating boundary. Though learned counsel appearing for appellant vehemently argued that improvements in the disputed property as well as the remaining property admittedly in the possession of appellant is same and it is different from the remaining properties in the possession of first respondent, on going through the report, it is clear that whatever improvements are therein in the disputed property are natural growth and not effected by the parties. Therefore based on the so called improvements in the disputed portion, it cannot be found that the disputed property was in the possession of either appellant or first respondent. 7. Learned Sub Judge also relied on Exts.B23 R.S.A.367/07,369/07 & 483/07 8 and B24 which were admittedly executed by appellant whereunder he reiterated that the extent of the property is only 53 cents and not 72 ½ cents as claimed before the courts below. The argument of the learned counsel is that as Exts.B23 and B24 were executed during the pendency of the suit and there was dispute with regard to the disputed portion much relevance cannot be given to the extent of the property. As rightly found by first appellate court when Exts.B23 and B24 show that appellant himself admitted extent of his property as 53 cents, that fact cannot be ignored. There is no recital in Exts.B23 and B24 that the extent is shown as 53 cents because of the litigation eventhough eventhough appellant has right over 72 ½ cents and lesser extent is sold retaining the remaining property with the assignor. First appellate court appreciated the entire evidence and found that it was not the level difference which was treated as the boundary and ED line is not the separating boundary and 51.3 links line is R.S.A.367/07,369/07 & 483/07 9 the separating boundary between the property of appellant and first respondent. That finding is based on the evidence. Though learned counsel argued that the appreciation of evidence by first appellate court was perverse, on going through the judgments I cannot agree with the submission. The factual finding rendered by first appellate court is final. It is not for this court to reappreciate the evidence and substitute the findings of the final fact finding court, in exercise of the powers under section 100 of Code of Civil Procedure. As no substantial question of law is involved in the appeals, all appeals are dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006