IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 15TH OCTOBER 2007 / 23RD ASWINA 1929 SA.No. 219 of 1994(A) ------------------------------ AS.158/1990 OF ADDL. DISTRICT COURT, PALAKKAD, OS.12/1978 OF MUNSIFF COURT, CHITTUR .................... APPELLANTS/RESPONDENTS 1 AND 2/ PLAINTIFFS: --------------------------------------------------------------------------- 1. VISWANATHA PANICKER, AGED 63 YEARS, S/O. KALARIKKAL GOPALA PANICKAR, RESIDING AT AYINAMPADAM, NENMARA VILLAGE. 2. GOPALANKUTTY, AGED ABOUT 33 YEARS, S/O. VISWANATHA PANICKAR, RESIDING AT AYINAMPADAM, NENMARA VILLAGE. BY ADV. SRI.P.K.JOSEPH. RESPONDENTS/APPELLANTS 1, 2, 3 AND ESPONDENT NO.3/ DEFENDANTS 2, 3, 5 AND 4: ------------------------------------------------------------------------------------------------------------ 1. MEENAKSHI, AGED ABOUT 60 YEARS, D/O. LATE KAMBAN, RESIDING AT AYINAMPADAM, NENMARA VILLAGE. *2. SHANMUGAN, AGED ABOUT 52, S/O. REMANI, RESIDING AT AYINAMPADAM, NENMARA VILLAGE. *(DIED). 3. LAKSHMI, AGED 62 YEARS, W/O. KUNJAN, RESIDING AT KUMBAMKODE, PUDIYAMGAM AMSOM, ALATHUR TALUK. S.A. NO. 219/1994: 4. NARAYANAN, AGED 66 YEARS, S/O. LATE KUPPAI, RESIDING AT AYINAMPADAM, NEMMARA VILLAGE. *ADDL.R5. KAMALAM, AGED 50 YRS, W/O. SHANMUGAN, R/AT AYINAMPADAM, NENMARA VILLAGE. *ADDL.R6. GEETHA, AGED 29 YRS, D/O. SHANMUGAM, R/AT AYINAMPADAM, NENMARA VILLAGE. *ADDL.R7. SUGUNA, AGED 27 YRS, D/O. SHANMUGAM, R/AT AYINAMPADAM, NENMARA VILLAGE. *ADDL.R8. SHEEJA, AGED 25 YRS, D/O. SHANMUGAM, R/AT AYINAMPADAM, NENMARA VILLAGE. *ADDL.R9. KUTTAPPAN, AGED 24 YRS, S/O. SHANMUGAM, R/AT AYINAMPADAM, NENMARA VILLAGE. *ADDL.R.10. SINDHU, AGED 21 YRS, D/O. SHANMUGAM, R/AT AYINAMPADAM, NENMARA VILLAGE. *ADDL.R5 TO 10 ARE IMPLEADED AS THE LRS. OF DECEASED R2. AS PER ORDER DATED 07/12/2000 IN C.M.P. 1922/99. BY ADV. SRI.P.R.VENKETESH FOR ADDL. R5. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T Appellants called. Absent. No representation. Dismissed. 15/10/2007. SD/- M.SASIDHARAN NAMBIAR, JUDGE. ORDER ON C.M.P. NO. 508/2001 AND I.A. NO. 116/2006 IN S.A. NO. 219/1994 DISMISSED 15/10/2007. SD/- M.SASIDHARAN NAMBIAR, JUDGE. //TRUE COPY// prv. V. RAMKUMAR, J. = = = = = = = = = = = = = S.A.No.219 of 1994 = = = = = = = = = = = = = = Dated this the 15 th day of September, 2008 JUDGMENT This Second Appeal was not admitted in terms of Section 100 read with Order XLII C.P.C by ordering notice on any substantial questions of law formulated by this Court. The questions of law formulated in Ground K of the memorandum of appeal are as follows:- 1.When there is an undisputed boundary existing on one side and there is no definite boundary existing in between two properties and there is no acceptable boundary on the opposite side of the undisputed boundary, will it be correct and justifiable to start the measurements from the undisputed, boundary to find out the boundary in between the two properties and to find whether there is trespass and encroachment. 2. When such measurements are adopted and the result of such measurements is that there was excess extent in the defendant's property and the measurement falls short of the boundary of the properties in the possession of the defendants, what is the extent of burden of proof on the part of the S.A.No.219 of 1994 2 defendants in such case or when there is such excess and the measurement falling short will the burden shift from the plaintiffs to the defendants. 3. When various sets of documents are produced by both parties relating to title and the case cannot be decided on the basis of the abstract principle of the burden of proof will it not be justified, having due regard to the burden of proof to advert to the sufficiency of the principle of preponderance of probability. The above questions are also not substantial questions of law warranting admission of the second appeal. When the Second Appeal came up for final hearing today, neither the appellants nor their counsel were present before this court. This Second Appeal is accordingly dismissed for default under Order XLI Rule 17 read with Order XLII C.P.C. Dated this the 15 th day of September, 2008. V. RAMKUMAR, JUDGE sj