IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 RSA.No. 589 of 2008() --------------------- AS.92/2004 of SUB COURT, PALA OS.376/2000 of MUNSIFF COURT, PALA .................... APPELLANT/APPELLANT/PLAINTIFF : ----------------------------------------- USHA DEVI M.B., W/O.MOHANAN NAIR, AGED 48 YEARS, RESIDING AT VELIYATHU HOUSE FROM MADATHIL, KADAPPATTOOR KARA, KADAPPATTOOR P.O.,MEENACHIL VILLAGE, MEENACHIL TALUK. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): RESPONDENTS/RESPONDENTS/DEFENDANTS ------------------------------------------------- 1. KADAPPATTOOR DEVASWOM REPRESENTED BY DEVASWOM SECRETARY R RAMAKRISHNAN NAIR, S/O. RAMAN PILLAI, AGED 67 YEARS, RESIDING AT KUNNATHU HOUSE, KADAPPATTOOR P.O., PALA FROM PIRAYAR KARA, KIDANGOOR VILLAGE. 2. K.K. PANKAJAKSHAN NAIR, S/O.KRISHNAN NAIR AGEDC 70 YEARS, PRESIDENT, KADAPPATTOOR DEVASWOM, RESIDING AT SREEVAYALIL HOUSE, EDANADU KARA, VALLICHIRA VILLAGE, KAROOR PA NCHAYAT.( ADDRESS K.K.PANKAJAKSHAN NAIR,PRESIDENT, KADAPATTOOR DEVASWOM, KADAPPATTOOR P.O., PALA) ADV. SRI.SHAJI THOMAS PORKKATTIL FOR R1 SRI.T.V.VINU FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.589 OF 2008 --------------------------------------------- Dated 14th February, 2011 JUDGMENT Plaintiff in O.S.376/2000 on the file of Munsiff's Court, Pala is the appellant. Defendants are the respondents. Suit was filed for fixation of boundary and permanent prohibitory injunction. Plaint schedule property admittedly originally belonged to the first respondent Devaswom. Under Ext.A3 exchange deed executed between Meenakshi Amma, mother of the appellant and first respondent Devaswom. A schedule therein was given to Meenakshmi Amma in exchange of B schedule property therein. Extent of A schedule property obtained thereunder is 1.09 Ares. B schedule is 1.250 cents being part of her 2.704 cents. RSA 589/08 2 Under Ext.A2, that property was also transferred to the appellant. The plaint schedule property is 1 Are 9 square metres (2.704 cents) in survey No.898/1B of Meenachil village. Case of the appellant is that the property exchanged under Ext.A3 and obtained by the mother of appellant was fixed leaving 3 feet width on the north and 3½ feet width on the west and therefore sought to get the boundaries fixed leaving that much land on the west and respondents filed a written statement agreeing for fixation of boundaries as shown in Ext.A3. Appellant was not prepared to get the boundaries fixed based on the title deed so he got the plaint amended raising a contention that plaint schedule property was the property which lies 3 feet to the south and 3½ width of land on the west of the remaining property of RSA 589/08 3 the assignor. 2. Learned Munsiff on the evidence of Pws.1 to 3 and DW1 and Exts.A1 to A3 and Exts.C1 and C2 dismissed the suit finding that under Ext.Ae the property can be fixed only with reference to the description shown in Ext.A3. If so, no land could be left either on the north or the west to fix the property. Appellant challenged the judgment before Sub Court, Pala in A.S.92/2004. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant and learned counsel appearing for the respondents were heard. 4. Argument of the learned counsel RSA 589/08 4 appearing for the appellant is that on the west and north of the property, there is a road and though Ext.A3 does not show that in between the road and the property assigned, land was left with the assignor, as there is a possibility of widening the road, such land was left behind with the assignor and the remaining property was assigned and therefore, plaint schedule property is to be fixed leaving the said area. As rightly found by the courts below, boundaries can be fixed only with reference to the description and boundaries seen in Ext.A3. Learned counsel appearing for the appellant prayed time to consult with the party, whether appellant is agreeable for fixing the boundaries as provided in Ext.A3. Learned counsel after consulting the party submitted that party is not willing to fix the RSA 589/08 5 boundaries as provided in Ext.A3 and is contending that for fixation of the boundary 3 feet on the north and 3½ feet on the west is to be left out. When Ext.A3 does not show that any such land was left behind and instead shown that property which was transferred under Ext.A3 is the middle portion, the property cannot be fixed as contended by the appellant. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. No cost. M.SASIDHARAN NAMBIAR, JUDGE. uj.