IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 SA.No. 842 of 1996(A) ------------------------------- AS.44/1988 of SUB COURT, CHERTHALA OS.515/1982 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANT(S): RESPONDENT:PLAINTIFF: ------------------------------------------------------------ AKKAMMA MEENAKSHI AMMA, PUTHUVAL NIKARTHIL, VAYALAR MURI, VAYALAR EAST FROM KATHIKULANGARA PURAYIDOM, PERUMTHURUTHU, KANJIKKUZHY. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): APPELLANTS: DEFENDANTS: -------------------------------------------------------------------- 1. AKKAMMA DEVAKI, KAMBIYAKATHU VELIYIL PERUMTHURUTHU, KANJIKKUZHI, ALLEPPEY. 2. PAPPAN VIJAYAN, PADATHU CHIRAYIL, DO. 3. DAMODARAN NANDAN, KAMBIYAKATHU VELIYIL OF DO.DO. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ S.A.No.842 of 1996 ---------------------------------------------- Dated, this the 13th day of August, 2009 J U D G M E N T The plaintiff is the appellant. The suit was one for declaration of title, possession and consequential injunction. The trial court decreed the suit. On appeal by the defendants the suit has been dismissed. 2. The plaint allegations in brief are as follows:-- The suit property belonged to the plaintiff as per document No.4306 of 1970. Prior to that she was in possession and effected improvements. She is paying tax for total extent of 42 cents. The Ist defendant is the sister of the plaintiff and defendants 2 and 3 are the issues of the Ist defendant. The plaintiff is residing at a distance of 8 miles away from the suit property. The defendants are restraining the plaintiff from taking the income very recently and are attempting to cut and remove the trees standing thereon. Item No.1 in the sale deed is the plaint schedule property. Originally the plaint schedule property was described as 7 cents comprised in Sy.170/7/1 and in the tax receipt it was written as 170/7/5 which will come within the boundaries of the properties mentioned in the sale deed. Subsequently, it was amended as S.A.No.842/1996 -2- 2 cents comprised in Sy.170/7, 2.850 cents in 170/13 and 2.150 cents in 170/5. 3. Respondents contended as follows:--The description of the property is not correct. No property comprised in Sy.170/7 will come within the boundaries. The alleged document is a forged one and the executants of the document have no right to execute the same. The prior right mentioned in the document is a concocted one. The plaintiff was never in possession of the same. The defendants are residing in the property covering the disputed portion. There are no trees in the disputed property. The defendants have no property within the boundaries mentioned in the plaint. The cause of action raised in the suit is imaginary. The total extent of the property including the suit property was in the possession of plaintiff's and defendant's predecessor Akkamma as per a kanappattom deed No.2742 of 1124 Midhunam. Subsequently as per gift deed No.1854 of 1955 it has been conveyed to the children of Akkamma. 11 cents of the property was allotted to the Ist defendant including the building. Her youngest sister Lakshmy is residing there with S.A.No.842/1996 -3- Ist defendant's permission. The Ist defendant is taking the income. Six cents on the southern extremity has been allotted to the plaintiff. The plaintiff after constructing a building has rented out the same to strangers. 4. Respondents filed additional written statement contending inter alia that it is a holding within the purview of KLR Act. Item No.1 is a portion of item No.2 which is included in the kanappattom deed. 5. The only substantial question of law which is raised in the memorandum of appeal reads as follows: “A. When there is a conflict in the description of the property between Sy.Number and boundaries, whether the description by boundaries will not legally prevail over the survey number? 6. I heard learned counsel for the appellant and learned counsel for the respondents. The plaint schedule property was 7 cents. The title is based on Ext.A1. Ext.A1 assignment deed is of the year 1970. The title was disputed. It is the case of the respondents inter alia that there is no title with the predecessor of the appellant. The predecessor of the S.A.No.842/1996 -4- plaintiff got property having an extent of 35 cents under a kanappattam deed. By Ext.B2 there is a gift in favour of the Ist defendant. According to the appellant plaint schedule property is property on the east of the 11 cents. After filing of the commission report the plaint was got amended and 7 cents was broken up into three and 2 cents was alleged to comprise in Sy.170/7, 2.850 cents was alleged to comprise in Sy.170/13 and 2.150 cents was alleged to comprise in Sy.170/5. The Ist appellate court notes that the survey number of the property obtained by the appellant allegedly vide Ext.A1 is comprised in Sy.No.170/7/1. No doubt the case of the appellant is that there is sub-division and on the basis of the report of the commissioner about which there is no objection it was that the plaint has got amended. The Ist appellate court finds that it is not easy to identify and locate the property in Sy.170/13 and 170/5. The Ist appellate court apparently dealing with the contention based on primacy to be given to the boundary found that there is no clear demarcating boundary to separate the property in the possession and enjoyment of the plaintiff and that of the S.A.No.842/1996 -5- defendants. It is found that the property is in the possession of the sister's son of the Ist defendant. The Ist appellate court also found that there is no evidence to prove title of the predecessor in interest. What is sought includes declaration of title. Even going by the commission report to make up 11 cents obtained by Ist respondent under Ext.B2, 2 cents comprised allegedly in Sy 170/7 is required. I must remind myself that I am dealing with this question in second appeal. I may not re-appreciate the evidence for the purpose of arriving at another finding. There is no question of law raised that the finding is perverse. It is found that there is no clear demarcating boundary. In such circumstances, there is no merit in the second appeal and it is dismissed. The parties are directed to bear their respective costs. (K.M.JOSEPH) JUDGE. MS