IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 SA.No. 723 of 2001 -------------------- (AS.48/1993 of I ADDL. DISTRICT COURT, PALAKKAD OS.29/1983 of MUNSIFF COURT, CHITTUR ) APPELLANTS/APPELLANTS/DEFENDANTS: --------------------------------------------- 1. SOSSAMANICKAM, S/O. AROGYAM, RESIDING AT NALLUVEEDUKALAM, KOLAMADACHALLA, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 2. JAYAMARY, D/O. MICHAEL, RESIDING AT KOLAMADACHALLA, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH (SR.) ADV. SRI.KRISHNA PRASAD. S RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------------- * RAMASWAMY KOUNDAN, S/O. SUBBANNA KOUNDAN, RESIDING AT KOLAMADACHALLA, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. (*DIED. LEGAL REPRESENTATIVES ARE IMPLEADED. ) * *ADDL. RESPONDENTS: 2. VALLIYAMMAL, WIDOW OF RAMASWAMY KOUNDAN. 3. RAJU, S/O. LATE RAMASWAMY KOUNDAN. 4. CHANDRIKA, D/O. LATE RAMASWAMY KOUNDAN. 5. VIJAYA, D/O. LATE RAMASWAMY KOUNDAN. 6. PAPPATHI, D/O. LATE RAMASWAMY KOUNDAN. (**ADDL. RESPONDENT NOS. 2 TO 6 ARE IMPLEADER AS PER THE ORDER DATED 28.06.2007 ON I.A.NO. 1132 OF 2003. ) R2 TO R6 BY ADV. SRI. P.R. VENKETESH AND BY ADV. SRI. P.R. RAJA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN, J. ................................................. S.A. No. 723 OF 2001 ................................................. Dated this the 19th November, 2008 J U D G M E N T The defendants in O.S.No. 29 of 1983 on the file of the Munsiff's Court, Chittur are the appellants in the Second Appeal. The respondent herein instituted the suit for permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property or from cutting trees standing on the western boundary of the plaint schedule property. The trial court decreed the suit. On appeal by the defendants, the appellate court confirmed the judgment and decree of the trial court. 2. The case of the plaintiff is that his property is included in Sy. No.1027 /1 of Vadakarapathy village. The property of the first defendant is situated in Sy. No.1025 on the western side of the plaint schedule property. The defendant attempted to trespass upon the plaint schedule property and to cut down the trees on the western ridge, which separates the plaint schedule S.A. No. 723 OF 2001 2 property from the property of the first defendant. 3. According to the first defendant, boundary 'varamba' belongs to him and is included in his property in Sy.No.1025. He also stated that when the dispute arose, the survey officials measured the property and it was found that the disputed portion is in Sy. No.1025. 4. Against the decision of the trial court, there was an appeal and the appellate court had remanded the case to the trial court with a direction to appoint a Commissioner to identify the plaint schedule property and to submit a plan in accordance with the survey measurements. After the remand, the trial court appointed a commissioner who submitted Exhibit C1 report and Exhibit C2 plan. From Exhibit C2 plan it is clear that the 'varamba' separating the properties of the defendants and that of the plaintiff is included in Sy.No.1027/1. There is no claim for the first defendant that he has title or possession over any portion of the property in Sy. No. 1027/1. On the other hand, the averments in the written statement filed by the first defendant would disclose that the dispute was whether the S.A. No. 723 OF 2001 3 disputed portion of the property is included in Sy.No.1027/1 or 1025 and that it was found on survey measurement that the disputed portion is included in Sy.No.1025. But the survey measurement in the presence of the Commissioner discloses that the disputed portion is in Sy.No.1027/1. The first defendant had transferred the property pending suit to the second defendant. The courts below have noticed that the title deed in favour of the second defendant also does not disclose that any portion of Sy.No.1027/1 was assigned in favour of the second defendant. In short, the parties put forward their respective cases before the courts below based on survey numbers. The dispute was as to whether the disputed portion is included in Sy.No.1025 or in 1027/1. The Commissioner's report and plan make it abundantly clear that the disputed portion is in Sy. No.1027/1. Relying on the plan and report submitted by the Commissioner and also considering the oral evidence in the case, the trial court as well as the appellate court came to the conclusion that the plaintiff has established his possession over the disputed 'varamba'. Accordingly, it was held that the S.A. No. 723 OF 2001 4 plaintiff is entitled to prohibitory injunction, as prayed for. 5. Learned counsel for the appellants submitted that the property of the appellants/defendants is on a higher level and that the disputed portion is a 'thadayavaramba' regulating flow of water in the property. The 'varamba' should belong to the owner of the property on the upper level and therefore, the plaintiff cannot claim any title or possession over the 'varamba', which forms a part of upper land. There is no pleading in the written statement to that effect. On the other hand, as noted by the courts below , the Commissioner's report would indicate that the disputed 'varamba' is a 'thadayavaramba' belonging to the plaintiff. There is also no force in the contention raised by the appellants since it is clear from the the Commissioner's plan and report that the property belonging to the plaintiff is on a higher level. The decisions of the courts below are based on facts and evidence on record. The findings of fact arrived at by the courts below should not normally be interfered with in Second Appeal, unless substantial questions of law are involved in the Second Appeal. In the case on hand, no substantial question of law is S.A. No. 723 OF 2001 5 involved. The findings are factual findings. The decisions are based on facts and factual findings. There is no scope for interference in the Second Appeal. It is clear from the judgments of the courts below that the courts below have not considered the question of title to the disputed property and only the question of possession was considered. Nothing prevents the appellants from raising the question of title in a properly constituted suit. With the above observations, the Second Appeal is dismissed. No order as to costs. K.T. SANKARAN, JUDGE. lk S.A. No. 723 OF 2001 6 K.T. SANKARAN, J. ................................................... S.A. No. 723 OF 2001 ................................................... Dated this the 19th November, 2008 J U D G M E N T