IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 SA.No. 761 of 1997(G) ------------------------------- [AS.NO.164/1994 OF SUB COURT, PALA, OS.NO.83/1989 OF MUNSIFF'S COURT, PALA] .................... APPELLANT/APPELLANT/DEFENDANT: -------------------------------------------------------- SOURIAR SOURIAR, MALAMUKALEL, EDAPPADY, BHARANANGANAM, KOTTAYAM. BY ADV. SRI.RAJEEV V.KURUP. RESPONDENT/RESPONDENT/PLAINTIFF: ----------------------------------------------------------- BRIJITHA, D/O. LUKA, POONDIKULATH HOUSE, EDAPPADY, BHARANANGANAM, PALAI. BY ADV. SRI.MATHEW JOHN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A. NO. 761/1997-G: J U D G M E N T When this case was taken up for hearing, neither the appellant nor his counsel was present. Accordingly, the appeal is dismissed for default. 19/01/2011. SD/- P.BHAVADASAN, JUDGE. ORDER ON I.A. NO.1948/1997 IN S.A. NO. 761/1997-G DISMISSED 19/01/2011. SD/- P.BHAVADASAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. ------------------------------------------------------- SA No.761 of 1997-G ------------------------------------------------------- Dated this the 19th day of January 2011 Judgment The defendant, who suffered a decree at the hands of the trial court, which was confirmed by the appellate court, is the appellant. The parties and facts are hereinafter referred to, as they are available before the trial court. 2. The plaintiff claims to be the absolute owner of the plaint schedule property. According to him, the defendant is a kudikidappukaran. The plaintiff had conveyed 5 cents of property to the defendant as per Ext.A3 dated 17.02.1985. The defendant has put up a house in the said property and is residing therein. Later, the defendant demanded that the entire extent of property to which he is entitled to, as a kudikidappukaran, may be given to him. Conceding to his demand, another six cents of property on the northern side of the property given under SA 761/97 2 Ext.A3, was also conveyed to him. A boundary was also put up, separating the plaintiff's property from the property gifted and conveyed to the defendant. Alleging that the defendant is attempting to trespass into the plaintiff's property, the suit was laid. 3. The suit was resisted on several grounds. It was pointed out that the person, who laid the suit was not competent to do so. The defendant disowned Ext.A3 and said that it is a result of fraud and coercion. He also claimed to be in possession of the entire 60 cents of property and set up a claim of adverse possession and limitation. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A4 from the side of the plaintiff. Exts.C1 and C2 commissioner's report and plan and Exts.X1 to X3 third party exhibits were also marked. The defendant did not adduce any evidence whatsoever. SA 761/97 3 5. The trial court, on an appreciation of the evidence, came to the conclusion that the apprehension expressed by the plaintiff is correct and therefore, decreed the suit as prayed for. 6. The defendant carried the matter in appeal as AS No.164/94. One of the main contentions before the lower appellate court was that no sufficient opportunity was given to the defendant to adduce his evidence. That was found against by the appellate court. The appellate court also found that the trial court was right in his conclusions and dismissed the appeal. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : “A) Whether the civil court has jurisdiction to demarcate and fix the boundary of kudikidappu without resorting to the provisions contained in the KLR Act ? B) Whether a landlord at his own option allot a particular land as kudikidappu and call upon SA 761/97 4 the civil court to demarcate and fix the boundaries from the rest of property? C) Whether a deed like Ext.A3 purporting to be a gift deed can be executed in lieu of kudikidappu right and what is its legal implication? Whether it is ab initio void ? D) What is the legal implication of such a document if it is accepted by a party. Can a court of law act upon such a document even if it is admitted by the beneficiary ? E) Whether in a case the relief a permanent injunction against trespass is prayed for and when the defendant disputes the same, can the court grant a decree for permanent injunction in the absence of any proof of possession, basing solely on the document of title when court fee for such a relief is only paid under Section 27(c) of the Kerala Court Fees and Suit Valuation Act? F) Without framing proper issues with regard SA 761/97 5 to the matter in dispute in the case, can the defendant be blamed that he did not avail the opportunity given to him in the trial stage to adduce evidence ? In the absence of a relevant issue not raised for trial, what is the remedy open to such a party ?” 8. One needs to remember that the defence set up is one of adverse possession and limitation. So also, Ext.A3 is as a result of fraud and coercion and the defendant had not accepted the same with regard to his kudikidappu rights. 9. As regards adverse possession and limitation, it is contended that the defendant has not produced any evidence to establish his claim. As far as the plea regarding Ext.A3 is concerned, the trial court has found that the defendant has accepted Ext.A3 and has applied for a loan by pledging the property received under the said document, for constructing a house therein. The plaintiff has made clear that he seeks to lay boundaries to SA 761/97 6 the properties only after excluding the extent of property given to the defendant under Ext.A3 and also the six cents of property, which was given subsequently, in view of his claim for kudikidappu rights. Therefore, it is clear that the plaintiff is not laying any claim to the property given to the defendant. In the absence of any evidence on the part of the defendant to establish his claim, the courts below are perfectly justified in holding against him. The findings of the courts below are based on evidence on record and are findings of fact. No substantial questions of law arise for consideration in this appeal against the concurrent findings of facts by the courts below. 10. The learned counsel for the appellant expressed an apprehension that as far as the six cents of property that was conveyed to him subsequently, is concerned, there is no document and the defendant may not be able to assert his right in respect of the said property. Unfortunately, he did not make any such claim in the suit and so, no relief in this regard can be granted at SA 761/97 7 this stage. However, it will be open to the plaintiff to consider whether he could execute an appropriate deed in favour of the defendant, enabling him to assert his rights over the said 6 cents of property which the plaintiff claims to have been given to him in addition to the five cents, given as per Ext.A3. The result is that this second appeal is devoid of any merits and it is accordingly dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 761/97 8