IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 RSA.No. 898 of 2008() --------------------- AS.712/1994 of SUB COURT,NEYYATTINKARA OS.275/1980 of I ADDL MUNSIFF'S COURT, NEYYATTINKARA .................... APPELLANT/APPLLANT/1ST DEFENDANT: -------------------------------------------- DANIEL NADAR ANTHONI NADAR, PAPPANAMTHOTTATHU KEEZHE VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.B.KRISHNA MANI RESPONDENT/RESPONDENTS/PLAINTIFFS & DEFENDANTS 1-11: -------------------------------------------------------- 1. RAMAKRISHNAN NADAR RAYAPPAN, VARUVILAKATHU VEEDU, MURIANKARA DESOM, PARASSALA VILLAGE. 2. NEELU NADATHI SARASWATHI, -DO-. 3. APPAVU NADAR DASAYYAN NADAR, PAPPANAMTHOTTATHU VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE. 4. APPAVU NADAR, THANKAPPAN NADAR, -DO-, -DO-. 5. APPAVU NADAR SATHYANESAN NADAR, -DO-. 6. CHELLAMMA ROSILY, -DO-. 7. KUNCHUPILLA NADAR RAJAYYAN NADAR, PAPPANAMTHOTTAM NADUTHATTU VEEDU, DO.DESOM AND VILLAGE. 8. AMMALU JNARAPAKYAM, MACHINGAMTHOTTAM PUTHEN VEEDU, -DO-, DESOM & VILLAGE. -2- R.S.A.NO.898/2008 9. JNANAPPU SWARNA BAI, DO, DO. 10. RAJAM, W/O.RAJAYYAN NADAR, PAPPANAMTHOTTAM NADUTHOTTAM VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE. 11. RAJAM STELLAPADMAM, DO, DO MINOR. 12. RAJAYYAN NADAR REGHURAJ, DO, DO (MINOR/0 (MINOR RESPONDENTS 11 & 12 REPRESENTED BY THEIR FATHER 7TH RESPONDENT). 13. NARAYANAN CHELLAPPAN, MACHINGAM THOTTATHU VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE. 14. CHELLAPPAN THANKARAJAN, PAPPANAMTHOTTATHU VEEDU, DO.DESOM. 15. CHELLAPPAN RAMAYYAN, MACHINGAMTHOTTATHU PUTHEN BUNGLOW, DO.DESOM. 16. JNANAPAKYAM KANAKA BHAI, VIRALIVILA VEEDU, DO.DESOM. 17. CHELLAPPAN AMBI, DO, DO. 18. CHELLAPPAN THOMAS, MACHINGAMTHOTTATHU PUTHEN VEEDU, DO.DESOM. 19. CHELLAPPAN JOSEPH, DO, DO. ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) FOR R1,2 SRI.A.R.DILEEP FOR R1,2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.898 OF 2008 ---------------------------- DATED THIS THE 26TH MAY, 2009 JUDGMENT The Ist defendant in O.S.No.275/1980 on the file of the Munsiff's Court, Neyyattinkara is the appellant herein. A preliminary decree was passed allowing the plaintiffs to get possession of plaint B schedule property and to put up boundaries on all sides of the B schedule property. Plaint A schedule property is 1 acre and 45 cents and plaint B schedule property is 10 cents out of plaint A schedule property. Preliminary decree was passed on 10/3/1983, which was confirmed by the Appellate Court by judgment dated 28/2/1986 in A.S.No.395/1983. Subsequently, the plaintiff applied for passing of a final decree. The execution court appointed a Commissioner, who measured and demarcated the 10 cents of property to be allotted to the plaintiff in the suit. Ext.C3 is the report and Ext.C3(a) is the plan. The Commissioner in Ext.C3(a) -2- R.S.A.No.898/2008 plan identified plaint B schedule property as BCSR plot. He has stated that the plot cannot be made to lie along the full length of ABC line. Identification was made based on Ext.X2 plan. The trial court accepted Exts.C3 report and C3(a) plan and a final decree is passed allowing the plaintiffs to have separate possession of BCSR plot in Ext.C3 (a) plan. Further directions were issued to the defendants to demolish the shed on the paint B schedule property identified as plot BCSR in Ext.C3 (a) plan within one month and to hand over possession of the property to the plaintiff. 2. The lst defendant challenged the final decree and judgment in A.S.No.712/1994. The lst defendant contended that going by Exts.A1 to A4, B schedule property can never be BCSR in Exts.C3 and C3(a) and therefore the identification of B schedule property is incorrect. According to the learned counsel for the appellant, the recitals in Exts.A1 to A4 coupled with Ext.X2 amply substantiate his contentions. According to the -3- R.S.A.No.898/2008 learned counsel for the appellant, Ext.X2 plan will amply reveal that the property on the immediate east of plot No.23 can never be the property on the northern side of plot No.15. Therefore, it is patently evident that the plaintiff has scheduled a property contrary to the schedule descriptions in his documents. 3. The Appellate Court considered the very same contentions raised by the lst defendant before the court below. The Appellate Court also concluded that Exts.C3 and C3(a) plan and the final judgment show that the identification of B schedule property is in accordance with the directions of the preliminary decree and judgment. The contentions levelled against the identification of B schedule property is untenable. It is held by the fact finding Authorities that plaint B schedule property is a property identified by the Commissioner in Exts.C3 report and C3(a) plan. The findings arrived at by the courts below are on the basis of the evidence and other materials on record and therefore, I find no reason to interfere with the findings of fact -4- R.S.A.No.898/2008 recorded by the court below. The findings of facts recorded are justified in the facts and circumstances of the case. In the result, the Second Appeal fails and accordingly, it is dismissed. Sd/- HARUN-UL-RASHID, Judge. kcv.