IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 SA.No. 512 of 1995(C) -------------------------- AS.42/1991 of SUB COURT, THIRUVALLA OS.336/1986 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT: APPELLANT/PLAINTIFF --------------------------------------- VARGHESE THOMAS, THANNIKKALAYA KOTTATTUPARA HOUSE KURIANNOOR MURI,THOTTAPPUZHASSERI VILLAGE 2. THOMAS VARGHESE, S/o SRI VARGHESE THOMAS THANNIKKALAYA KOTTATTUPARA HOUSE, KURIANNOOR MURI, THOTTAPUZHASSERI VILLAGE NOW WORKING AT GULF ENGLISH SCHOOL, POST BOX NO 33106, CODE 25562, RUMAITHIYA, KUWAIT THE LEGAL REPRESENTATIVE OF THE DECEASED SOLE APPELLANT IS IMPLEADED AS ADDL. SECOND APPELLANT VIDE ORDER DT 30.10.2000 ON CMP 2005/2000 BY ADV. SRI.P.R.VENKETESH RESPONDENTS: RESPONDENTS/DEFENDANTS --------------------------------------------------- 1. MARIAMMA, MEPRATH VEEDU, KURIYANNOOR MURI THOTTAPPUZHASSERI VILLAGE 2. PHILIPOSE CHACKO OF DO. DO. REPRESENTED BY HIS MUKTHIAR HOLDER CHACKO VARGHESE, MEPRATH THEKKAEKOOTTAYA, PERUMPARA HOUSE, KURIANNOOR MURI, THOTTAPPUZHASSERI VILLAGE 3. P.M. PHILIP OF DO. DO. 4. ALEYAMMA OF MEPRATH HOUSE, KURIANNOOR MURI, THOTTAPPUZHASSERI VILLAGE BY ADV. SRI.R.RAMADAS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ---------------------------------------------------- S.A. No 512 of 1995 ---------------------------------------------------- Dated this the 26th June 2008 JUDGMENT The plaintiff in O.S. No 336 of 1986 on the file of the Munsiff's Court, Thiruvalla who suffered a dismissal of his suit concurrently in both the courts below is the appellant. The suit was one for fixing the eastern boundary of the schedule property and for an injunction restraining the defendants from trespassing into the schedule property. After advancing vehement arguments before this court by the learned counsel for the appellant canvassing contention to the effect that the green shaded plot on the east of the red shaded plot in C2 plan also belongs to the appellant and that the boundary of his property on the eastern side has to be fixed as the SGFKJ line, having found that in view of the decree passed in O.S. No 100 of 1964 the appellant will not be able to claim any extent of property beyond east of the thodu which was in existence at the time of preparation of the plan in O.S. No 100 of 1964 of the Munsiff's Court, Chengannur, he submits that the appellant will be satisfied if a decree is passed allowing the appellant to put up the eastern boundary of the schedule property as shown in Ext B2(a) plan SA 512/95 2 which is plan prepared in O.S. No 100 of 1964 of the Munsiff's Court, Chengannur as that has been agreed upon also by the respondents, vide para 7 of their written statement. Counsel for the respondent also has no objection, but he points out that the description of the property in the plaint as it exists at present after amendment of the plaint, vide I.A. No 605 of 1988, is in consonance with Ext C2 plan prepared by the commissioner in this case and that therefore while accepting Ext B2(a) plan for the purpose of passing a decree in this suit the description of the property incorporating survey numbers other than survey number 179/2 originally incorporated in the description of the property in the schedule to the plaint may not be taken into account. The said submission has to be accepted as the appellant-plaintiff does not at present rely on Ext C2 plan prepared by the commissioner in this suit, but wants to rely on Ext B2(a) plan got prepared in O.S. No 100 of 1964 aforesaid. 2. In the result, on consent of parties there shall be decree passed in the suit fixing the eastern boundary of the plaint schedule property as per Ext B2(a) plan. This means that the straight line drawn from south to north on the east of the schedule property which bears measurements 124, 26,59,67,104 and 100 along with its bent SA 512/95 3 towards east on its easternmost end shall be the eastern boundary of the schedule property which the appellant-plaintiff has on the west of the said line. The boundary of the schedule property is fixed accordingly. Respondents are restrained from trespassing into any portion of the property on the west of the said boundary line. Parties to suffer their own costs. Ext B2(a) plan shall form part of the decree in the suit. Sd/- K.P. BALACHANDRAN Judge 26/06/2008 en [true copy]