IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 SA.No. 775 of 1995(A) --------------------- AS.91/1992 of D.C.& SESSIONS COURT,THODUPUZHA OS.133/1989 of MUNSIFF'S COURT, IDUKKI .................... APPELLANT(S): APPELLANT:PLAINTIFF: ------------------------------------------------------------- PAILY JOSEPH ALIAS JOSE, S/O.PAILY, RESIDING AT KUTTICHIRAYIL HOUSE, KALVARYMOUNT P.O. AND KARA, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.T.DEVASSIA RESPONDENT(S): RESPONDENTS:DEFENDANTS: -------------------------------------------------------------------------- 1. MATHEW ALIAS JOY, S/O. ULAHANNAN, RESIDING AT MADATHINAKATHU HOUSE, KALVARYMOUNT KARA AND P.O., THANKAMONI VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 2. ANTONY XAVIER, S/O.XAVIER, RESIDING AT EETTICAL HOUSE, KALVARYMONT KARA AND P.O., THANKAMONY VILLAGE, UDUMBANCHOLA, IDUKKI DISTRICT. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, BY ADV. SRI.P.B.KRISHNAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.1884/1995 IN S.A.NO.775/1995 DISMISSED 22/06/2010 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 775 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of June, 2010. JUDGMENT The plaintiff, who had suffered a decree at the hands the trial court and whose appeal was dismissed by the lower appellate court, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, he acquired one acre of property comprised in Sy. No.1/1 of Thankamany village with specific boundaries. Ext.A1 is the document of title. Claiming that the defendants are trying to trespass into a portion of his property, he laid the suit. 3. The defendants contested the suit by pointing out that the plaintiff is not in possession of the entire one acre. The second defendant is in possession of five cents of property and the balance extent is in the possession of the plaintiff. S.A.775/1995.. 2 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 4 and documents marked as Exts. A1 to A4(b) from the side of the plaintiff. The defendants had D.Ws. 1 to 4 examined and Exts. B1 to B6 marked. Exts.C1 and C2 are the commission report and plan. Exts. X1 and X2 are third party exhibits. On an appreciation of the evidence, the trial court came to the conclusion that the plaintiff has not succeeded in establishing that he is in absolute possession and enjoyment of one acre of land and dismissed the suit. The plaintiff took up the matter in appeal as A.S. 91 of 1992 before the District Court, Thodupuzha. The lower appellate court dismissed the appeal confirming the judgment and decree of the trial court. 5. Learned counsel appearing for the appellant pointed out that both the courts below have erred on facts and in law in dismissing the suit. The observation of the courts below that there is a boundary separating the 5 cents of property claimed by the defendants from that of the S.A.775/1995.. 3 property claimed by the plaintiff is incorrect. There is no such boundary separating the properties. Attention was also drawn to the fact that when the commissioner visited the property for the first time, there was no building in the five cents of property claimed by the defendants. In the subsequent visit, he was able to find a shed and it was after obtaining injunction order from the trial court that the defendants had put up the structure. It is also contended that Ext.B1 document on the basis of which the defendants lay claim, is a concocted document and no rights could emerge from such a document. 6. Per contra, learned counsel appearing for the for the respondents points out that there is no basis for any of the contentions raised by the appellant. The courts below have considered the matter in considerable detail and have come to the conclusion that the plaintiff is not in possession of the entire one acre of property. The commission report is very clear to the effect that there are indications of the five cents lying separated from the rest of the property, which is S.A.775/1995.. 4 in the possession of the plaintiff. It is not correct to say that five cents is not identified. Accordingly, there is no merits in the contentions raised by the plaintiff and the appeal is only to be dismissed. 7. One may now refer to the commission reports, namely, Exs.C1 and C1(a). The Commissioner in his report has stated that five cents of property is identifiable and it has a kayyala on its northern side. This is disputed by the appellant and it is contended that it is not a kayyala and it is wrongly mentioned as kayyala by the commissioner. It does not appear to be so. The commissioner has stated that there is a granite kayyala also. It is true that it does not extend to the other sides of the property said to be in the possession of the defendants. However, a perusal of the commission report and plan clearly show that the five cents claimed by the defendants is identifiable. 8. The defendants claim to have purchased the property from one Ulahannan Varkey. Ext. B2 document would show that there was a building numbered as 338A in S.A.775/1995.. 5 the possession of Ulahhannan Varkey and subsequently the number was altered to 322 in Ward No.III of Kamakshi Panchayat. Exts. B4 and B5 were also indicate that he was paying tax for the said building. The courts below have from the commission report found that the property claimed by the respondents lies clearly separated form the remaining property and the Commissioner has also noted separating boundary stones on the south-western and south-eastern corners of the disputed property. The courts below have also noticed that the commissioner has mentioned about a kayyala and fencing in the property claimed by the respondents. It was these facts which persuaded the courts below to come to the conclusion that the plaintiff is not in possession of the entire one acre of property. 9. It is also to be noticed that the defendants had a case that there was a building in the property, and that is evidenced by Ext.B2. Ext.B2 is the extract of the building tax register for the period from 1983-84 to 1987-88. The said document produced by the defendants would show that S.A.775/1995.. 6 building No.338A stands in the name of Varkey Ulahannan and the person in possession of the said building was stated to be P.P. Kuttan and the second defendant was running a barber shop in the building. This, according to both the courts below, strengthens the case of the respondents that there was an old dilapidated building in the five cents of property claimed by the defendants. 10. It must be noticed that there was no attempt from the side of the plaintiff to have the property identified on the basis of the measurement. He remained satisfied with the rough sketch and the case was that the defendants were rank trespassers. The evidence of the commissioner also shows that the property possessed by the respondents is identifiable. P.W.1 claims ignorance about the same except the repeated assertion that he is in possession of the entire one acre of land. It was pointed out that the two stones located by the commissioner were planted by the respondents after trespassing into the property by getting injunction in their favour. Commissioner has noted this S.A.775/1995.. 7 matter and reported that it does not appear to be so, and it seems to be some sort of mark depicting some measurement. 11. Both the courts have concurrently found that the claim of the plaintiff that he is in possession of entire one acre of property cannot be accepted. The courts below were of the opinion that the respondents have succeeded in showing that they are in possession of the five cents and the balance property alone is in the possession of the plaintiff. One must remember that both the appellant and the respondents claim no title over the property and their claim is on the basis of possession of the property. The courts below have considered the evidence in considerable detail and came to the conclusion that the plaintiff is not in possession of the entire one acre of property. This is essentially a finding on fact and there is nothing to show that the findings of the courts below are either perverse or not warranted by the evidence on record. No substantial S.A.775/1995.. 8 question of law arises for consideration in this Second Appeal. Accordingly, this second appeal is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.