IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 RSA.No. 303 of 2009() --------------------- AS.1/2005 of PRL.SUB COURT,IRINJALAKUDA OS.933/2000 of PRL. MUNSIFF'S COURT, IRINJALAKUDA ................... APPELLANT/APPELLANT/PLAINTIFF -------------------------------------------------- LONAPPAN, AGED 65, S/O.LONAPPAN, RESIDING AT NEREPARAMBIL HOUSE, KALLETTUMKARA DESOM-POST, IRINJALAKUDA-VIA, THRISSUR DISTRICT. BY ADV. SRI.M.H.HANIL KUMAR RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. SOBY, AGED 38, S/O.CHACKAPPAN, NEREPARAMBIL HOUSE, KALLETTUMKARA DESOM-POST, IRINJALAKUDA-VIA, THRISSUR DISTRICT. 2. NIKSON, AGED 35, S/O.CHACKAPPAN, NEREPARAMBIL HOUSE, KALLETTUMKARA DESOM-POST, IRINJALAKUDA-VIA, THRISSUR DISTRICT. 3. ROSY, W/O.CHACKAPPAN, NEREPARAMBIL HOUSE, KALLETTUMKARA DESOM-POST, IRINJALAKUDA-VIA, THRISSUR DISTRICT. 4. JOSE, S/O..CHACKAPPAN, NEREPARAMBIL HOUSE, KALLETTUMKARA DESOM-POST, IRINJALAKUDA-VIA, THRISSUR DISTRICT. 5. SAVI, AGED 50, THAZHATHAN ANTONY & D/O.CHACKAPPAN, NEREPARAMBIL HOUSE, KALLETTUMKARA DESOM-POST, IRINJALAKUDA-VIA, THRISSUR DISTRICT. 6. CICILY, AGED 46, PAZHAYATHIL GEORGE & D/O.CHACKAPPAN, NEREPARAMBIL HOUSE, KALLETTUMKARA DESOM-POST, IRINJALAKUDA-VIA, THRISSUR DISTRICT. -2- R.S.A.NO.303/2009 7. JOHSON, AGED 40, S/O.CHACKAPPAN, NEREPARAMBIL HOUSE, KALLETTUMKARA DESOM-POST, IRINJALAKUDA-VIA, THRISSUR DISTRICT. 8. JAISON, AGED 42, S/O.CHACKAPPAN, NEREPARAMBIL HOUSE, KALLETTUMKARA DESOM-POST, IRINJALAKUDA-VIA, THRISSUR DISTRICT. 9. SAIJMON, AGED 38, S/O.CHACKAPPAN, NEREPARAMBIL HOUSE, KALLETTUMKARA DESOM-POST, IRINJALAKUDA-VIA, THRISSUR DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2009, ALONG WITH RSA NO. 304 OF 2009 THE COURT ON THE SAME DAY DELIVERD THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.303 & 304 OF 2009 --------------------------- DATED THIS THE 22ND DAY OF JUNE, 2009 JUDGMENT Plaintiff in O.S.No.933/2000 on the file of the Principal Munsiff's Court, Irinjalakuda is the appellant in R.S.A.No.303 and the lst appellant in R.S.A.No. 304/2009. He is the lst defendant in the connected suit O.S.No.1683/2000 on the file of the same court. Both the suits were jointly tried. The suit O.S.No.933/2000 filed by the appellant as plaintiff was dismissed. The connected suit O.S.No.1683/2000 was decreed by fixing the boundary demarcating A and B schedule properties as per Ext.C2(b) sketch. The trial court also passed a decree of permanent prohibitory injunction restraining the defendants from entering into the plaint A schedule property and dismissed the prayer for recovery of possession on the strength of title. The decree and judgment passed by the trial court was confirmed in appeal. The plaintiff in O.S.No.933/2000 filed the above second -2- R.S.A.Nos.303 & 304/2009 appeals challenging the decree and judgment in the respective suits. 2. The appellant filed O.S.No.933/2000 claiming title and possession of plaint item No.1 allotted as G schedule item No.1 of partition deed No.1726/64, marked as Ext.A1. Plaint item No.2 was purchased by the plaintiff from one of his brother, who is also an allottee under the partition deed. Admittedly, the property on the southern side belongs to the defendants, who are his brother and family members. The lst defendant-brother got the property by the very same partition deed, which is marked as Ext.A1. He was allotted D schedule of item No.1. The extent of property allotted to the plaintiff and defendants is 50 cents and 40 cents respectively in the partition deed. According to the plaintiff, defendants are not having 40 cents of property; but the extent of property is less than what is stated in Ext.A1 partition deed. He is attempting to trespass into the plaint schedule property and to reduce a portion of it. Therefore, the suit was filed for perpetual injunction. -3- R.S.A.Nos.303 & 304/2009 2. In the connected suit O.S.No.1683/2000 and in the written statement filed in O.S.No.933/2000 the defendants contended inter alia that as per Ext.A1 partition deed he has got only 50 cents; but he has filed the said suit claiming title to an extent of 54.125 cents, that the defendants are in possession of 40 cents of land allotted as per Ext.A1 partition deed and contended that the plaintiff in O.S.No.933/2000 trespassed into the plaint schedule property and they are entitled to recovery of an extent of 3.125 cents of land, which is scheduled as C. The trial court and the Lower Appellate Court interpreted Ext.A1 partition deed. The allotment of respective shares in Ext.A1 partition deed and Ext.A2 assignment deed in favour of the plaintiff in O.S.No.933/2000 is not disputed. In O.S.No.933/2000 the extent of property in plaint A schedule is 54.125 cents whereas in Ext.A1 partition deed the extent allotted to him is 50 cents. According to the plaintiff, going by the said measurements in Ext.A1, the total extent of property owned and held by the defendants can only be 35.875 cents. The question -4- R.S.A.Nos.303 & 304/2009 considered by the trial court and the Lower Appellate Court is as to what is the extent of property allotted to the lst defendant in O.S.No.933/2000 and the exact extent in his possession as per the side measurements. Ext.C1 commission report is considered by the courts below. The commissioner reported that there is no definite boundary separating the two properties. Exts.C1 to C2(c) are the report, plan and sketch submitted by the Commissioner and the Surveyer. The Commissioner and the Surveyer reported that the entire 90 cents, which is the total extent of G and D schedule in Ext.A1 partition deed is in Sy.No.351/6. The Surveyor measured the entire extent in Sy.No.351/6 and demarcated 90 cents of land in sub division No.351/6. The description of the property in Ext.A1 partition deed is also taken into account. By the said description 40 cents of property were set apart to the defendant in O.S.No.933/2000 and the remaining property was set apart to the plaintiff. The said extent is stated to be 50 cents. Both the courts below concluded that it is evident that what is intended at -5- R.S.A.Nos.303 & 304/2009 the time of partition is to give 40 cents to DW-1 and the balance to PW-1. In the light of the Commissioner's report and the oral evidence pressed into service by the parties, the fact finding courts declined to accept the contention of the plaintiff in O.S.No.933/2000 that the lst defendant is attempting to trespass claiming more extent than what is due to him. Therefore, the prayer for prohibitory injunction was declined by the trial court finding that the plaintiff in O.S.No.933/2000 has scheduled more property than what belonged to him as per Ext.A1 partition deed. Ext.C2(b) plan prepared in O.S.No.1683/2000 was accepted by the trial court. The red line with the measurement shown as 50.3 demarcated as PW-1's property and DW-1's property. The properties were identified by the Commissioner. The properties are measured and demarcated in accordance with Ext.A1. The green shaded portion and red shaded portion are identified as properties of PW-1 and DW-1 respectively. The entire 90 cents of land falls in Sy.No.351/6. The -6- R.S.A.Nos.303 & 304/2009 court below observed that the transfer of property is effectively done on the strength of extent than the side measurements and that the property is identified by the boundaries and survey numbers. Both the courts below accepted the boundary line fixed by the Commissioner in Ext.C2(b) separating the properties of the parties and held that the plaintiff in O.S.No.1683/2000 is entitled to fixation of boundaries as per Ext.C2(b). The prayer sought for by the same plaintiff for recovery of possession of an extent of 3.125 cents was negatived by the court. The finding that as per Ext.A1, the plaintiff is entitled to 40 cents and that if the the boundary is fixed as per Ext.C2(b), the plaintiff in O.SNo.1783/2000 will get possession of an extent of 40 cents of land. Since the boundary is fixed based on title of both sides the trial court and the Appellate Court rightly held that there is no necessity for recovery of possession on the strength of title. The fact finding court examined all the contentions raised by the parties in detail and held that the parties are entitled to the extent of land measured and demarcated as per Ext.C2(b), which is in -7- R.S.A.Nos.303 & 304/2009 accordance with the recitals and letter and spirit of Ext.A1. The conclusions arrived at are solely based on the evidence adduced by both sides and the report and plan submitted by the Commissioner, which are marked as Ext.C1, C1(a), C2, C2(a), C2(b) and C2(c). Since the findings are recorded purely on the basis of facts, I do not find any reason to interfere with the findings of the courts below or to take a different view in this matter. No question of law much less any substantial question of law arises for consideration in this second appeal. In the result, the appeal fails and it is accordingly dismissed. HARUN-UL-RASHID, Judge. kcv.