IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 SA.No. 763 of 1996() -------------------- AS.62/1991 of ADDL.DISTRICT COURT-II,MAVELIKKARA OS.39/1986 of MUNSIFF COURT, MAVELIKKARA .................... APPELLANT(S)/APPELLANT/DEFENDANT: ----------------------------------------------------------- KUNJIKKA BHARATHI, KAKKANETHU PUTHENVEETTIL, THATHAMUNNA MURI, NOORANADAU VILLAGE. BY ADV. SRI.K.K.JOHN RESPONDENT(S)/RESPONDENT/PLAINTIFF: ------------------------------------------------------------ PARVATHY PONNAMMA, CHAKKALAKKUTTIYUDE VADAKKETHIL, THATHAMMUNNA MURI, NOORANADU VILLAGE. ADV. SRI.K.SASIKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON 15/10/2009 DELIVERED THE FOLLOWING: ORDER ON C.M.P.1597 OF 1996 IN S.A. 763 OF 1996. DISMISSED. 15.10.2009. SD/- P. BHAVADASAN, JUDGE. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 763 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2009. JUDGMENT The defendant in O.S.39 of 1986 before the Munsiff's Court, Mavelikkara is the appellant. The parties and facts are hereinafter referred to as they were available before the trial court. 2. The essential facts necessary for the disposal of this Second Appeal are as follows: The suit was one for fixation of boundary and recovery of possession. Plaint A schedule property was obtained by the plaintiff as per Ext.A1 dated 31.1.1968 from her father. Plaint B schedule property, which lies on the northern side of plaint A schedule property, belongs to the defendant as per Ext.A3 sale deed dated 10.11.1964 executed by the father of the plaintiff. Ext.A3 contains a specific recital to the effect that the property having a width of 2 koles on the eastern side of the property given to the defendant is excluded S.A. 763/1996. 2 from the sale deed. The suit was laid on the allegation that the defendant had encroached into that property and reduced a portion of it into her possession. 3. The defendant resisted the suit by pointing out that the allegations are untrue and she is in possession of the entire property settled in her favour. The plaintiff had never been in possession of the property having a width of 2 koles as mentioned in the plaint. It is also contended that at any rate, even assuming that if the plaintiff had any title to the suit property, it was barred by adverse possession and limitation. 4. The trial court raised the necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 4 and Exts.A1 to A5 from the side of the plaintiff. Defendant had D.Ws.1 and 2 examined and Ext. B1 marked. Ext.C1 is the Commission report and Ext.C1(a) is the plan. On a scrutiny of the respective deeds of title and also the Commission report, the court below found that the claim of the defendant is untenable. The S.A. 763/1996. 3 disputed property was clearly excluded from the title in favour of the defendant and that the defendant can set up no manner of right over the same. It was also found that the claim of adverse possession and limitation set up by the defendant cannot be countenanced and accordingly the suit was decreed. 5. In appeal, the appellate court confirmed the judgment and decree of the trial court. Notice was issued on the following substantial questions of law. “I. Whether on the facts and circumstances of the case the courts were justified in holding that the plaintiff got possession of he disputed property as per Ext.A1 especially when the same was in the possession and enjoyment of the defendant as per Ext.A3 sale deed prior to Ext.A1, adverse to and hostile to the donor of Ext.A1? II. Whether the courts below were justified in granting a decree for fixation of boundary without realising the facts and circumstances of the case that the disputed 2 koles of property is lying contiguous with the plaint B schedule property which is lying at a higher level of 4 S.A. 763/1996. 4 feet from the plaintiff's A schedule property. III. Whether the decrees of the courts below are legal and proper without considering the evidence in respect of adverse possession of the defendant and whether the procedure adopted by the courts below is proper, which resulted in failure of justice.” 6. The suit was one for fixation of boundary and recovery of possession of the property said to have been trespassed upon by the defendant. It is not in dispute that both plaint A and B schedule properties originally belonged to the father of the plaintiff. The plaintiff obtained the property under Ext.A1 of the year 1968 and the defendant as per Ext.A3 of the year 1964. A reading of Ext.A3 shows that the property conferred under Ext.A3 excludes 2 koles width property on its eastern side. On going through the Commissioner's report and plan, it can be seen that the said portion was left out in order to have access to the rest of the property then owned by the vendor under Ext.A3. There is no dispute regarding the fact that plaint B schedule property situates S.A. 763/1996. 5 on the northern side of plaint A schedule property. From the evidence, it can be seen that plaint B schedule lies at a higher level. It may be seen from the Commissioner's report and plan that the sole means of excess of the plaintiff from plaint A schedule property to the outside world is through the 2 kole width property while assigning the property to the defendant as per Ext.A3 document. The purpose of having left out 2 kole width is therefore very evident. In fact, the defendant cannot claim that their documents of title takes in the disputed property also. At one point of time, the defendant had a case that there was no such property in existence. But the Commissioner has been able to locate the same. The courts below have concurrently found that the defendant had miserably failed to establish the claim of adverse possession and limitation. Even though the learned counsel appearing for the appellant contended that there was no proper consideration of her claim of adverse possession and limitation, on a perusal of the judgment of the courts below, it can be seen that the courts below S.A. 763/1996. 6 have considered that aspect in detail and had come to the conclusion that the claim is not justified. The question is essentially one of fact and there are a concurrent findings against the defendant in that regard. No substantial questions of law arise for consideration in this Second Appeal. The Second Appeal is without merits and it is accordingly dismissed with costs. P. BHAVADASAN, JUDGE sb. S.A. 763/1996. 7 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 763 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 15.10.2009.