IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 RSA.No. 1253 of 2008() ---------------------- AS.102/2006 of SUB COURT, PALA OS.143/2003 of MUNSIF COURT, KANJIRAPPALLY .................... APPELLANTS/APPELLANTS/DEFENDANTS --------------------------------------------- 1. LISSYAMMA JOSE, W/O. JOSE, CHEMPAKASSERY HOUSE, MUNDAKKAYAM VILLAGE, KANJIRAPPALLY TALUK. 2. MERCY JOSE, D/O. LISSYAMMA JOSE, RESIDING IN -DO-, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, APPELLANT NO.1, LISSYAMMA JOSE. 3. M.J. JOSE @ KURUVILA JOSE, H/O. APPELLANT NO.2 IN -DO- REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, APPELLANT NO.1, LISSYAMMA JOSE. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT: RESPONDENT ------------------------- ABRAHAM K. ABRAHAM, S/O.ABRAHAM,R/AT KOLLAMPARAMBIL (H), MUNDAKKAYAM VILLAGE, KANJIRAPPALLY TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, LILLYKUTTY ABRAHAM, W/O. ABRAHAM, RESIDING IN -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1023 OF 2009 IN R.S.A. NO.1253 OF 2008 DISMISSED SD/- HARUN-UL-RASHID ,JUDGE 08.06.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 1253 of 2008 ---------------------------------------- Dated this the 8th day of June, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 102/2006 on the file of the Sub court, Pala which arises from the decree and judgment in O.S. 143/2003 on the file of the Munsiff Court, Kanjirappally. The suit was filed for fixation of boundary, injunction and recovery of possession The trial court decreed the suit as follows: a. The title of the plaintiff over plaint schedule item No.1 and 3 properties is declared. b. The plaintiff is allowed to recover possession of item No.3 property from the defendants through court. c. The L H line in Ext.C2(a)plan is fixed as the southern boundary of plaint schedule item No.1 property. d. The defendants are restrained by a decree of permanent prohibitory injunction from trespassing into plaint schedule item No.1 property and from committing any act of waste therein. e. The plaintiff is allowed to realise costs of the suit from the defendants jointly and severally. f. Ext.C2(a) plan shall form part of the decree. The lower appellate court re-appreciated the facts and dismissed the appeal. The parties herein after referred to as plaintiff and defendants as R.S.A. No. 1253 of 2008 -2- arrayed in the suit. 3. The plaint schedule item item No.1 belongs to the plaintiff. Item No. 2 belongs to the defendants. Item No. 3 is a very small extent identified by the Commissioner as the trespassed portion and the extent of the same is 37 Sq.meters. The parties are close relatives. The suit was filed on the apprehension that the defendants may at any time trespass into the plaint schedule property. Pending suit, the suit was amended alleging that the defendants have trespassed into item No. 1 property and item No. 3 property is the trespassed portion. 4. The defendants in the written statement filed, interalia contended that the plaintiff was not having any independent right over plaint schedule item No. 1 property, that the defendants are having possession over the same which they have acquired as per the title deeds, that even if they were having excess extent of property the plaintiff was not having title over the same. It was also contended by them that item No. 3 property includes the property of the 1st defendant and alleged trespass is not true. 5. The evidence for the plaintiff consists of the oral evidence of PWs 1 to 3 and documentary evidence of Exts.A1 to A8(a). The evidence for the defendants consists of the oral evidence of DWs 1 and 2 and documentary evidence of Exts.B1 to B7. The commission report, rough sketch and plan were marked as Exts C1 to C2(a). R.S.A. No. 1253 of 2008 -3- 6. The trial court examined the question whether the plaintiff has succeeded in establishing title over the plaint schedule item No.3 property. All the properties were measured and demarcated by the Commissioner and prepared Ext.C1 , C2 reports and C2(a) plan. Ext.C1 report was filed after local inspection of property. DW2 is the Advocate Commissioner. DW3 is the Taluk Surveyor who assisted the Advocate Commissioner. The properties were measured on the basis of Ext.A3 and survey records. The Commissioner specifically reported that item No. 3 was part of Item No. 1 property and at the time of inspection the same was not under the possession of the plaintiff. Considering the Commissioner's report and plan and the oral and documentary evidence adduced by both parties the trial court rightly held that Exts. C2 and C2(a) corroborates the case of the plaintiff . 7. The other contention raised by the defendants to the effect that they have got item No. 3 property as part of the properties acquired by the 1st defendant as per sale deeds No. 4514/1994 and will deed No. 79/1976 was also examined in detail by the trial court. The trial court noted the fact that the defendants failed to produce documents in support. Moreover they have not taken any step for getting the property measured on the basis of the said documents. The trial court after elaborately analysing Exts.C2 report and C2(a) plan,and taking into consideration all other aspects concluded that Item No. 3 property belongs to the plaintiff R.S.A. No. 1253 of 2008 -4- and therefore he has succeeded in proving his title over plaint schedule item 1 and 3 properties. 8. Very same questions were re-agitated before the lower appellate court. The lower appellate court also examined all the questions raised by the defendants, and held that the plaintiff has right and title over the plaint schedule item No. 1 and 3 properties and Item No. 3 property is part of Item No. 1 property.. I have also perused Exts.C2 report , C2(a) plan and Ext.A8 survey plan. I find that the measurements in these documents are tallying each other. 9. The learned counsel for the appellants contended that since no survey stones are specified in the Commissioner's report and plan (Exts C2 and C2(a) respectively),the measurement from the point A itself is wrong, that the point A as per Ext.A8 lies across the road, that if the measurements were commenced from the point A noted in Ext.A8 then the disputed property will fall outside the property claimed by the plaintiff. According to the learned counsel, the lower appellate court failed to see that the Commissioner's plan does not tally with the total extent of Sub division No.167/7 proved through thandaper accounts and that the plan submitted by the Commissioner is not as per the re-survey plan and the measurements are not tallying . In such circumstances the learned counsel submitted that the deficiency found in the extent of plaintiff's property is lying as excess in defendants' property is perverse. Other R.S.A. No. 1253 of 2008 -5- contentions are also raised by the learned counsel in this regard. The findings entered by the trial court are on the basis of oral and documentary evidence produced by both parties and the Commissioner's report and plan. I find that the Commissioner rightly identified the properties and Ext.A8 survey plan tallies with Ext.C2(a) plan. For all the above reasons the contentions raised by the defendants were not accepted by the courts below and held that the plaintiff is entitled to a decree for declaration, for recovery of possession and for fixation of boundary. I find no reason to interfere with the judgment and decree passed by the lower appellate court as well as the trial court. . No question of law much less any substantial question of law arises for consideration in this appeal. There is no scope for invoking Section 100 of the C.P.C. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 1253 of 2008 ---------------------------- JUDGMENT 8th June , 2009