IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 SA.No. 786 of 1997() -------------------- AS.85/1994 of SUB COURT, PALA OS.270/1980 of MUNSIFF COURT, PALA .................... APPELLANT(S): -------------- THOMMAN THOMMEN, PALAYARUTHOTTATHIL, MUDRAKALAYILAYA VELLUTHORRAM, KALATHOOR, KANAKKARI, KOTTAYAM. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1.NRSAKKUTTY FRANCIS, VADAKKENELLIKKATTIL, KALATHOOR, KURAVILANGADU, NOW RESIDING AT MUKALEL HOUSE, BANGALORE CITY, KUPPURTHRA, VAMANAPURAM P.O., KARNATAKA (WRONGLY SHOWN AS ROSYKUTTY IN O.S. JUDGMENT). 2. MATHAI OUSEPH, VELLIKKATTIL, KALATHOOR, KURAVILANGADU P.O., KOTTAYAM ADV. SRI.ROY CHACKO THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON 23/07/2010 DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------- S.A.No.786 Of 1997 ---------------------------- Dated this the 23rd day of July, 2010. J U D G M E N T The defendant in O.S.No.270/1980 on the file of the Munsiff's Court, Pala is the appellant. The Second Appeal is directed against the judgment and decree dated 5.9.1997 in A.S.No.85/1994 of the Sub Court, Pala. The suit was for declaration of plaintiffs title and for recovery of possession with mesne profits. The court below decreed the suit. The decree and judgment are confirmed in appeal. The parties hereinafter are referred to as the plaintiffs and defendants. 2. The suit was once decreed by the trial court, in the appeal preferred by the defendant the appellate court remanded the case for fresh disposal with directions. After remand, the trial court decreed the suit. 3. The case of the plaintiff is that, plaintiff is the absolute owner in possession and enjoyment of the plaint schedule property. It is averred that there exist a road known as Kuruppanthara - Kurianm road through the suit property, that the defendant is having property on the northern side of the S.A.No.786 Of 1997 2 road, that on 10.9.1980 the defendant trespassed into the plaint schedule property and planted rubber trees. The defendant have no manner of right, title and interest over the plaint schedule property and therefore, plaintiff is entitled to recover the suit property. 4. The defendant filed written statement denying the plaint averments and prayed for dismissal of the suit. According to the defendant he is in possession of 1 Acre and 19.5 cents of land comprised in Survey No.614/6/A which takes in the plaint schedule property. The defendant obtained his title on the strength of Ext.B1 sale deed of 1123 and Ext.B2 settlement deed of 1124. 5. The disputed extent is 6 cents. Both sides claimed title to the plaint schedule property. Therefore, the trial court rightly observed that the real dispute is regarding the identity of the property. The court deputed a commissioner to identify the property. The commissioner measured the property, the measurement was with reference to the title deeds and on the basis of survey records. Ext.C3 is the report and C3(a) is the plan. The commissioner reported in paragraph 5 of Ext.C3 report S.A.No.786 Of 1997 3 that the total extent of land in survey No.614/6/A, 614/6/B is only 2.30 acres and 650 square links, though as per the descriptions in the documents, extent of the property is 2 acres and 44 cents. In Ext.C3(a) plan the commissioner has plotted all the items of properties claimed by plaintiff, defendants and plaintiff's brother. Plot No.9 is the property owned by the plaintiff, the disputed land is shown as plot No.10 in green colour. The plaintiff claimed title over 51 cents of land on the basis of Ext.A1 and A2 title deeds, it is found that the actual extent is 47.50 cents. The said extent includes the disputed plaint schedule property. The commissioner reported that the defendant is not having any property on the southern side of the road and therefore, it is reported that the disputed property is owned by the plaintiff, forms part of his property under Ext.A1 and A2 documents. 6. The appellant/defendant filed detailed objection to the commissioner's report. According to him, the item shown as K T B Z in Ext.C3(a) plan was purposely deleted by the commissioner when the measurement was taken. From the survey it is seen that, the said portion of the land which is lying on the south S.A.No.786 Of 1997 4 -western corner of plaintiff's property was not measured. When examined the commissioner testified that the said plot is comprised in different survey number and therefore, the said plot is not measured. The appellant contended that plot No.10 is an item owned and possessed by the defendant and according to him, plot No. 10 is part of his property and is covered by the sale deed and settlement deed marked as Exts.B1 and B2. The trial court noted that measurement of the entire extent of property, the commissioner has categorically found that there is reduction in extent of both plaintiff's and defendants property. The trial court is of the view that the commissioner correctly plotted the respective items of lands owned by the plaintiff and defendant and placing reliance on the commissioner's report and plan, the trial court held that neither the defendant nor his predecessors in interest were having any property on the south of the road. The trial court also examined the contentions of the defendant as to whether he has prescribed title by adverse possession and limitation. According to the defendant he is in possession of the plaint schedule property for the last more than 40 years and that by his long, continuous possession he perfected title by adverse S.A.No.786 Of 1997 5 possession and limitation. Dws.5, 6 and 8 were examined in support of the claim of adverse possession. The trial court examined the oral testimony of Dws.5, 6 and 8 and observed that their testimonies are not reliable and that their version regarding the long and continuous possession of the defendant is not believable. The trial court also taken note of the lie and location and cultivation of the disputed land and held that the said features probabilises the case of the plaintiff that it has been trespassed upon by the defendant. More over the court found that, the defendant has miserably failed to substantiate his contention that he has prescriptive title by adverse possession. 7. The lower appellate court also examined the contention raised by the appellant. The very same contentions are reiterated before the lower appellate court. On facts the appellate court confirmed the findings of the trial court. In the second appeal, I have examined the contention raised by the appellant. I have gone through Ext.C3 report, C3(a) plan and the documents of title produced by the respective parties. I find that the findings entered by the trial court confirmed by the appellate court regarding the title to the disputed property are entered after S.A.No.786 Of 1997 6 relying on the relevant documents and the oral evidence adduced by the parties. The findings of possession by the courts below are based on the materials on record. The findings are entered after appreciating the entire facts, circumstances, oral and documentary evidence. I do not find any reason to interfere with the findings of facts recorded by the courts below. No question of law much less any substantial questions of law arises for consideration in the second appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge. pm