IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 RSA.No. 887 of 2009() --------------------- AS.196/2003 of I ADDL. DISTRICT COURT, PALAKKAD OS.102/1997 of MUNSIFF COURT, CHITTUR .................... APPELLANT(S)/APPELLANT/PLAINTIFF: -------------------- MADHAVAN, S/O. PONNAN RESIDING AT PAPPACHALLA, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DIST. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1. CHITHAMBARAN, S/O. PONNAN, RESIDING AT PAPPANCHALLA, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DIST. 2. BALAN, S/O. PONNAN, RESIDING AT PAPPANCHALL, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DIST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.887 of 2009 -------------------------------------- Dated this the 14th day of September, 2009. JUDGMENT Substantial questions of law attempted to be raised in this Second Appeal are: i. Are the courts below justified in holding that the plaintiff is not in possession of the disputed ridge when a major portion of the ridge lies in the survey sub-division in which the plaint schedule property lies? ii. Whether fixation of boundaries by the authorities under the Survey and Boundaries Act is final and conclusive of the same is subject to the suit legally instituted in the competent civil court? iii. Whether the fixation made under the Survey and Boundaries Act without effecting mutation with regard to the properties which are allotted as per the valid partition deed is valid under the provisions of the Survey and Boundaries Act? 2. This Second Appeal is brought from the judgment of learned Additional District Judge, Palakkad in A.S.No.196 of 2003 confirming dismissal of the suit for prohibitory injunction by learned Munsiff, Chittur in O.S.No.102 of 1997. Appellant and respondents are brothers and claimed properties as per RSA No.887/2009 2 partition deed No.583 of 1969, a certified copy of which is marked as Ext.A1. B schedule in Ext.A1 was allotted to the appellant which is described as schedule property in the plaint. Property on the east belonged to respondents as per Ext.A1, partition deed. Appellant/plaintiff alleged that he is in possession and enjoyment of plaint schedule property which has specific boundaries on all sides. Respondents cut down trees from the said property and is attempting to remove the same. Appellant sued for permanent prohibitory injunction against trespass. Respondents contended that they have no claim over B schedule property in Ext.A1. Respondent No.1 claimed that E schedule of Ext.A1 is the property allotted to him as per Ext.A1 and that the said property is situated on the east of plaint schedule property. These properties are separated by ridge north-south and the property on the east belonged to respondent No.1. Ridge belonged to respondent No.1. He claimed that he had cut and removed the trees standing on the ridge. On the application of respondent No.1, Taluk Surveyor measured properties on 27.1.1997 in the presence of appellant as well as respondent No.1 and fixed boundary. Appellant gave evidence as PW1 and proved Ext.A1. Respondent No.1 gave evidence as DW1 and proved Exts.B1 to B4. DW2 is a witness examined by respondent No.1. Exts.C1 and C2 are report and plan prepared by the advocate commissioner. Appellant when examined as PW1 claimed that he is in possession of the suit property. DWs 1 and 2 stated that the disputed ridge formed part of the property of respondent RSA No.887/2009 3 No.1 and that the latter is in possession thereof. In Ext.C2, plan disputed ridge is shown in green colour. Courts below found that the northern and southern portions of the ridge came within the survey boundary line of appellant but the major middle portion of the ridge came in the survey boundary line of property belonging to respondent No.1. It also came in evidence that property admittedly belonging to the appellant is situated on the west of the ridge about two feet lower in level from the property belonging to respondent No.1. Learned Munsiff observed that suit is merely for a decree of prohibitory injunction as if the disputed ridge is in the possession of the appellant and that contention cannot be accepted. 3. This case being a suit for injunction what is required to be considered is only the issue regarding possession. It is unnecessary to go into the survey boundary and other matters which are required to be considered in a suit framed on title. Courts below found that the disputed property is in the possession of respondent No.1 and it is not disputed that the trees were cut from the ridge which portion even as per Ext.C2 fell within the survey boundary line of respondent No.1. Courts below found that the disputed ridge is in the possession of respondent No.1 and refused to grant relief to the appellant. The decision is based on the finding regarding possession which again rest on the evidence on record. On the facts and circumstances no substantial question of RSA No.887/2009 4 law as urged in the appeal memorandum arises for a decision. Proper remedy of the appellant is to sue for title and such other reliefs if he is otherwise entitled as per law. Resultantly, this Second Appeal fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks