IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 FAO.No. 291 of 2008() ------------------------------ AS.76/2003 of SUB COURT,KATTAPPANA OS.403/1999 of MUNSIFF COURT, KATTAPPANA. .................... APPELLANT-APPELLANT-IST DEFENDANT ------------------------------------------------------------- P.M. MATHEW, S/O. MATHEW, PANACKATHOTTOM HOUSE, KALATHIPADY, VADAVATHOOR POST, VIJAYAPURAM VILLAGE, KOTTAYAM. BY ADV. MR.P.N.RAMAKRISHNAN NAIR MR.P.VISWANATHAN RESPONDENTS-RESPONDENTS-ADDL. PLAINTIFFS 2 TO 5: ------------------------------------------------------------------------------------ 1. SHERLY JOB, W/O.JOB, KAVUMKAL HOUSE, KAPPIL POST, WANDOOR, MALAPPURAM DISTRICT. 2. AMAL JOB, S/O.JOB (MINOR) 3. ANAND JOB, S/O.DO.(MINOR) 4. ANISH JOB, S/O.DO.(MINOR). (MINORS 2 TO 4 REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN THE 1ST RESPONDENT.) BY ADV. MR.K.K.CHANDRAN PILLAI, MR.A.S.SAJUSH PAUL. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO.No. 291 of 2008 ORDER ON I.A. NO.4945/2008 IN F.A.O. NO.291/2008 DISMISSED 13/10/2009. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N.KRISHNAN, J. ........................................... F.A.O.NO.291 OF 2008 ............................................. Dated this the 13th day of October, 2009 J U D G M E N T This is an appeal preferred against the judgment of remand in A.S.No.76/2003 of the Subordinate Judge, Kattappana. The said appeal was preferred against the judgment and decree in O.S.No.403/1999 of the Munsiff Court, Kattappana. The suit was one for damages. The trial court decreed the suit with 6% interest and in appeal, the appellate court confirmed the finding regarding the act of damages done by the defendants but remitted the case back for fresh consideration to determine the actual damages. It is against that decision, the first defendant in the suit has come up in appeal. A perusal of the materials available would show that the property described in the plaint schedule along with its remainder had been purchased by virtue of an assignment deed in the year 1985 jointly by the first defendant and his brother in law Job Joseph from the power of attorney holder of Soorayilandi Gounder namely Gopal. It is the case of the plaintiffs that thereafter there : 2 : F.A.O.NO.291 OF 2008 had been a division of the property and the northern segment described in the plaint schedule was set apart to the share of Job Joseph and southern portion to the first defendant and the first defendant had trespassed into the property belonging to the plaintiffs and had cut and removed the cardamom plaints resulting in damages to them. The 1st defendant who is a lawyer by profession had filed a written statement disputing the right of the plaintiffs over the property and also the entitlement as well as damages. 2. The factum that the property was jointly purchased by Job Joseph and the first defendant is not of much dispute for the reason that in the opening word in the cross examination, the first defendant had admitted that the property was jointly purchased by him. Now the case of the plaintiffs appears to be that after the purchase of the property there had been a division between the two and the southern portion belongs to the first defendant and the northern portion belongs to the additional plaintiffs and their predecessors. A Commissioner was appointed in the matter : 3 : F.A.O.NO.291 OF 2008 and he had submitted a report. In Para-1 of the report he has very clearly stated that in between the plaint schedule and defendants's property there are 5 boundary stones and they are covered with heap of leaves. It is also seen that the cardamom plants in the northern segment as well as in the southern segment had been cut and removed. It is true that the Commissioner has not stated anything about the age of the so called separating boundary. But when he was examined as PW2 he had deposed before the court that if the stones and the boundary was a recent origin certainly he would have pointed out in the report or in other words it means that since it is not pointed out it is not of a recent origin. I do not find any serious questions put to this witness regarding the age of the stones. Therefore, the contention attempted to be raised at a belated stage that it will not operate as a boundary cannot be believed. In civil cases, it is the preponderance of probability that may prevail when convincing materials are not available before the court. Here is a defendant who is a lawyer by profession totally disowns the right of his : 4 : F.A.O.NO.291 OF 2008 brother in law who was a party to a registered instrument by virtue of which they got the property. The first defendant wants to put up a case as if he is the absolute owner of the entire property. It was his trend. He faced cross examination. In the cross examination he had stated that it was jointly purchased. So, it has to be stated that his evidence has to be analyzed with utmost caution. On the contra, evidence of PW1 and more than that the report of the Commissioner, who is an officer to the court does not suffer from any infirmity. It is true that it was an ex parte Commission but the said defect has been cured by examining the Commissioner and therefore, evidenciary value of such a report cannot be shut out. So, it appears to be the best possible document that could be relied upon by the document to arrive at a decision. The said document clearly indicates separation between the northern and southern segments and therefore, the case spoken to by the plaintiffs regarding the division rightly between the two appears to be probable and acceptable and as done by the two courts and I also endorse the same. Therefore, the said : 5 : F.A.O.NO.291 OF 2008 finding not to be disbursed. So far as the quantification is concerned, the matter is remanded by the appellate court to the trial court and against which no appeal or cross objection is filed and therefore, this Court is not expected to go into the same. Therefore, the appeal is devoid of any merit and the same is dismissed. The parties are directed to appear before the trial court for evidence or trial as the case may be on 25.11.2009. Disposed of accordingly. M.N.KRISHNAN, JUDGE cl : 6 : F.A.O.NO.291 OF 2008