IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 RSA.No. 756 of 2008 ------------------------ AS.15/2006 of PRL.SUB COURT,THALASSERY OS.487/1998 of MUNSIFF COURT, THALASSERY .................... APPELLANT/APPELLANT/DEFENDANT:- ------------------------------------------ SHOBHA ASOKAN, ATTADAPPA ATTADAPPA P.O., KANNUR. BY ADV. SRI.V.PREMCHAND RESPONDENT:RESPONDENT/PLAINTIFF:- -------------------------------------------- CHATHOTH MADHUSOODANAN, CHATHOTH HOUSE,SPINNING MILL ROAD, KAKKAD P.O., KANNUR -5. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------------- R.S.A. No 756 of 2008 - F ------------------------------------------------------- Dated this the 1st September 2008 JUDGMENT The defendant in O.S. No 487 of 1998 on the file of the Munsiff's Court, Thalassery is the appellant assailing the concurrent verdict of the courts below against him. The suit, O.S. No 487 of 1998 aforesaid, was filed by the respondent for fixation of boundary and for consequential injunction, inter alia, on the allegation that the schedule property originally belonged to one Poovan Karunakaran and others; that on 17.07.1998 they assigned the schedule property in his favour under Ext A1 sale deed; that the said property is having definite boundaries on all sides except on the northern side; that the extent assigned in favour of the plaintiff is 27 cents; that the defendant is holding property on the northern side of the schedule property and it lies at a higher level than the property of the defendant; that all the side measurements of the schedule property were shown in Ext A1 executed in favour of the plaintiff; that to the eastern and southern side of the schedule property is situated public RSA 756/08 2 lane; that the defendant has also purchased her land from the predecessors of the plaintiff's vendors and he has been attempting to trespass into the northern side of plaint schedule property with the intention of annexing certain portion of the schedule property with his property; that on the northern side of schedule property there are age old jack trees and the defendants had attempted to cut and remove the same and that on the intervention of the plaintiff defendant has withdrawn from his attempt; that he has threatened that he would come with greater force and trespass into the schedule property and hence the suit for fixation of boundary and for consequential prohibitory injunction. 2.The defendant resisted the suit by filing written statement contending that the defendant along with her husband Asokan purchased 27 cents of land from one Makkachi Assainar as per Ext B2 sale deed; that the allegation that the defendant attempted to trespass into the schedule property and commit waste is not correct; that the southern side of the defendant's property is situated at a higher level than the schedule property; that there is clear and distinct boundary on the southern side of the defendant's property to separate the same from the schedule property; that the averment in RSA 756/08 3 the plaint that the southern boundary of the schedule property is public pathway is not correct; that the said pathway is included in the schedule property; that the southern boundary of the schedule property is Kizhakke Palayulla Valappu paramba and this southern boundary also is the boundary of re-survey No 57/4; that the jack trees situated on the southern boundary of the defendant's property belong to the defendant and that since plaint schedule property is having definite boundary on all sides there is no cause of action for the suit and that the suit be therefore dismissed. 3. The trial court on the above pleadings raised necessary issues for trial and considering the evidence adduced at trial which consisted of the oral evidence of P.W.1 and C.W.1 and documentary evidence, Exts A1, B1 to B4 and Exts. C1 and C2, decreed the suit fixing the northern boundary of the schedule property as the G,H line shown in Ext C2 plan and restraining the defendant by a decree of prohibitory injunction from trespassing into the schedule property which is shown letters A and A1 in Ext C2 plan and from committing waste in the schedule property. Aggrieved by the decree so passed the defendant filed appeal, A.S. No 15 of 2006, before the first appellate court and the first appellate court dismissed the said RSA 756/08 4 appeal concurring with the findings of the trial court and hence this R.S.A by the defendant in the suit. 4. It is contended before me by the learned counsel for the appellant that boundary has been fixed by the Commissioner in Ext C2 plan showing the schedule property as taking within it 7/8 cents more from the defendant's property; that it so happened that the lane on the southern side of the schedule property also has not been measured along with the plaint schedule property and that even without the lane the property of the plaintiff is having more than 27 cents in extent and that the disputed 7/8 cents has actually to come within the property of the defendant on the northern side of the schedule property and that E F line should have been fixed as the boundary. It is worthy to note that no objection had been filed by the appellant-defendant to the commissioner's report and plan wherein the commissioner has excluded the extent of the pathway on the southern side of the schedule property. There is no evidence as to whether the said southern lane was formed taking any portion of the property which is described in the plaint. If at all that property was surrendered for lane from the schedule property and that also had to be measured along with the schedule property for; the purpose of RSA 756/08 5 fixing the northern boundary of the schedule property defendant should have filed objection to the commissioner's report and adduced evidence in that behalf. Further it is also worthy to note that even the defendant who raised such a contention has not entered the witness box to swear to her contention. Hence there is absolutely no merit in the contentions advanced on behalf of the appellant. It is also seen from Ext C2 plan that the appellant-defendant is also in possession of B3, B4 and B5 plots shown therein which actually do not belong to him as per the sale deed in his favour and his claim appears to be that he should have such excess land on the south as well. There is no questions of law and much less any substantial question of law for consideration by this court in this R.S.A. There is absolutely no merit in this Second Appeal and the Second Appeal is only to be dismissed in limine refusing admission. In the result, I dismiss this R.S.A in limine refusing admission. Sd/- K.P. BALACHANDRAN Judge 01/09/2008 en [true copy] RSA 756/08 6