IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 SA.No. 426 of 2000(A) -------------------------- AS.14/1994 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.164/1990 of MUNSIFF COURT,HARIPAD .................... APPELLANT(S): APPELLANTS/DEFENDANTS 1 AND 2. -------------------------------------------------------------- 1. CHELLAMMA SASIKUMARI, KANJIRAMPARAMBIL, ANARI MURI, CHERUTHANA VILLAGE. 2. GOPALA PILLAI BALAKRISHNA PILLAI, KANJIRAMPARAMBIL, ANARI MURI, CHERUTHANA VILLAGE. BY ADV. SRI.R.RAMADAS RESPONDENT(S): RESPONDENTS/PLAINTIFFS 1 & 2. -------------------------------------------------------------- 1. GOPALAKRISHNA PILLAI, SREENILAYATHU VEEDU, ANARI MURI, CHERUTHANA VILLAGE. 2. M.SREEDEVI PILLAI, SREENILAYATHU VEEDU, ANARI MURI, CHERUTHANA VILLAGE. BY ADV. SRI.K.S.SAJEEV KUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NOS.1153/2000 AND 1152/2000 IN S.A. NO.426/2000 DISMISSED 20/06/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. svs P.BHAVADASAN, J. ---------------------------- S.A.No. 426 of 2000 --------------------------------- Dated this the 20th day of June, 2011 JUDGMENT The defendants, who suffered the decrees at the hands of both the courts below are the appellants. 2. Plaintiffs claimed title to the suit property by virtue of Ext.A1 dated 29.04.1981. The plaint schedule property having an extent of 0.2540 Hectare comprised in Survey No.185/17 of Cheruthana village, belongs to the plaintiffs. The defendants have no right over it. The property on southern side the plaint schedule property belongs to the defendants. Both the properties as separated with well-defined demarcated boundary stones. But the defendants have removed the boundary stones on the south- eastern corner of the plaint schedule property. The intention is to annex that portion of the plaint schedule property to their property. Hence, the suit for fixation of boundary and for injunction. 3. The defendants resisted the suit. It has been pointed out that the description and extent of the plaint schedule property are S.A.No. 426 of 2000 2 wrong. As per sale deed No.1572/1981, the plaintiffs got only 59 cents(23.88 Ares) of property. The intention of the plaintiffs is to annex 5 cents out of the defendants property to their property. The re-survey records have not become final in view of Government Order and the defendants have preferred objection against the Re-survey plan. They also contended that there was a previous agreement between the parties settling the southern boundary of the plaint schedule property and in the light of that agreement the suit is not maintainable. On the basis of these contentions, they prayed for a dismissal of the suit. 4. Based 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 plaintiffs. Defendants had DW1 examined. Exts.C1, C1(a), C2, C2(a), C3 and C3(a) are the commissioner's reports and plans. The trial court after a careful examination of the materials before it accepted Ext.C3(a) plan and passed a decree enabling the plaintiff to put up a boundary along the P.C. line shown in Ext.C3(a) plan. S.A.No. 426 of 2000 3 5. Disappointed defendants carried the matter in appeal as A.S.No.14/1994 before the District Court, Mavelikkara. The lower appellate court after an independent evaluation of the evidence found that the trial court has not erred in any manner and dismissed the appeal. 6. Notice is seen issued on the following substantial questions of law: 1. Whether the Courts below justified in finding on the re- survey plan has become final ? 2. Whether the Courts below justified in relying on the re- survey plan which came into existence during the pendency of the suit ? 3. Are the courts below justified in relying on survey demarcation alone in fixing the boundary between the properties ? 4. Whether the courts below justified in not identifying the properties with the help of the title deed and fixing the boundary accordingly ? 5. Are not the judgment and decree of the courts below vitiated for not appreciating the evidence, both oral and documentary available in this case ? 7. The learned counsel for the appellants pointed out that both the courts below have mis-directed themselves in holding that the re-survey had become final. They failed to note that the S.A.No. 426 of 2000 4 first defendant had filed objection and that objection was still pending. Under such circumstances, the re-sruvey had not become final. It is also contended that by adopting a re-survey plan the plaintiffs get more extent of land and what is taken by their document of title, which the plaintiff is not entitled to. These vital aspects have been omitted to be noticed by the courts below. 8. Though the arguments look attractive they are without any basis whatsoever. The defendants would contend that the re- survey had not become final in the light of the objections filed in pursuance to the Government Order. The second defendant was examined as DW1. He deposed that the first defendant had filed objections to the resurvey records in 1985 and 1990 and further deposed that the objection filed in 1985 was rejected and the objection filed in 1990 is pending. The defendants had taken steps for getting the records from the Special Tahsildar resurvey and to prove that objection had been submitted by the second defendant for correction of resurvey records. Though the Special Tahsildar attended the court in pursuance to the summons issued S.A.No. 426 of 2000 5 at the instance of the defendants, they have not cared to examine him as a witness to show that the defendants had filed any objection to the resurvey records and it is pending consideration. 9. The trial court had considered the Ext.C3 and C3(a) plan and report and noticed that the defendants had no objection regarding the southern boundary located by the commissioner after measuring the properties. The trial court had observed that the main objection filed to Ext.C3(a)plan is regarding the eastern boundary over which there was no dispute. The trial court had accepted P.C. line marked in Ext.C3(a) plan on the southern boundary of the plaint schedule property. The lower appellate court it was very vehemently contended that on behalf of the appellant that re survey had not become final. The defendants had filed objections to the draft re-survey plan as mentioned in the Government Order dated 18.05.1990. The lower appellate court also went through the records and found that there is absolutely no evidence to show that any of the defendants had filed any objection to the re-survey plan prepared S.A.No. 426 of 2000 6 and the same is pending consideration. Under these circumstances, both the courts below were constrained to take a view that the re-sruvey plan has become final. 10. The trial court has noticed that the plaintiffs had sought for fixation of southern boundary of the plaint schedule property on the basis of resurvey plan. It was found by the trial court that though the southern boundary as per the resurvey plan was further south of the old boundary, the plaintiffs limited their claim of putting up fence on the southern boundary as would be evidenced by the old survey boundary. The trial court accepted that concession of the plaintiffs and granted a decree. There was no attempt from the side of the defendants to show that the resurvey had not become final and that the Commissioner's report and plan, namely, Exts.C3 and C3(a) could not be accepted. It was under those circumstances that the trial court was constrained to grant a decree determining the southern boundary of the plaintiffs' property as PC line and they were allowed to put up the boundary fence. S.A.No. 426 of 2000 7 11. Even though the defendants maintained before the lower appellate court that they have filed objections to the resurvey in pursuance to the Government Notification, they were unable to substantiate that plea. It is significant to notice that even though the defendants had summoned the Special Tahsildar as a witness, they chose not to examine him. He filed a statement stating that no objection has been received in his office from the second defendant. One must remember that the said statement was filed in the trial court. Atleast when the matter was pending before the lower appellate court, the defendants could have called for the files to establish that they had infact filed objection to the resurvey plan. For reasons best known to them, they chose not to act in that regard. Naturally, the lower appellate court was constrained to observe that there is nothing to show that any objection filed by the defendants is pending before the authorities concerned. 12. Even before this court also there was no attempt atleast to produce the copy of the objection said to have been filed by the defendants before the resurvey authorities in pursuance to S.A.No. 426 of 2000 8 the Government Notification made mention of by them. They were unable to show any infirmity or error in Ext.C3 report and Ext.C3(a) plan which have been accepted by the court below. The lower appellate court has taken note of the statements in the written statement that the defendants have no objection in determining the southern boundary of the plaintiffs' property as per the old survey plan. That alone has been done by the trial court while granting a decree in favour of the plaintiffs. One fails to understand how the defendants could have any grievance in this regard. The result is that this appeal is without merits and it is liable to be dismissed. I do so. However, it is made clear that it will be open to the appellants to resort to appropriate remedies available to them under law. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln