IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 SA.No. 883 of 1997() --------------------------- AS.69/1990 of III ADDL.SUB COURT, KOZHIKODE OS.511/1986 of PRL.MUNSIFF COURT, KOZHIKODE-II .................... APPELLANT(S): APPELLANTS- DEFENDANTS ----------------------------------------------------------------- 1. AMBALI PARAMBIL CHANDU, KADALUNDI AMSOM PAZHANCHANNUR DESOM OF KOZHIKODE TALUK. 2. A.P.SACHEENDRA BABU OF DO. DO. 3. A.P.JOTHI, OF DO. DO. 4. A.P.UNMESHAN, DO. DO. BY SRI.M.C.SEN, SENIOR ADVOCATE BY ADV. SRI.M.P.SREEKRISHNAN RESPONDENT(S): RESPONDENTS- 2ND & 3RD PLAINTIFFS. ------------------------------------------------------------------------------------- 1. PULIKKALAKATH HAMZA KOYA DO. DO. 2. MOHAMMED KUTTY OF DO.D O. RESPONDENTS ARE RESIDING AT KADALUNDY AMSOM AND DESOM , KOZHIKODE TALUK. R1 BY ADV. SRI.C.P.DAMODARAN NAIR, SRI.D.KRISHNA PRASAD, SRI.S.SACHITHANANDA PAI. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10 /03/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.2257/1997 IN S.A. NO.883/1997 DISMISSED 10/03/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.S. TO JUDGE tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 883 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of March, 2011. JUDGMENT The defendants in O.S.511 of 1986 before the Munsiff's Court, Kozhikode-II, who suffered concurrent decrees against them, are the appellants. Parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for recovery of possession and damages. The plaintiffs claimed that the plaint schedule property originally belonged to the husband of the first plaintiff and father of the second plaintiff, who obtained it under an assignment deed in the year 1954. Consequent on the death of Kunhimoideen, there was a partition among his heirs and in the said partition, evidenced by Ext.A1 dated 10.12.1975, plaint item No.1 was set apart to the share of the second plaintiff. The defendants owned property on the southern side of S.A.883/1997. 2 their property. According to the plaintiffs there is a brook lying adjacent to the property of the defendants and it belonged to the plaintiffs. That was filled up and coconut saplings were planted. The allegation in the plaint is that the defendants have trespassed into that property and reduced a portion of plaint B schedule property, which is a part of plaint A schedule, into their possession. Pointing out that the defendants have no manner of right over any property which belonged to the plaintiffs, they sued for recovery of possession on the strength of title. 3. Defendants 1, 3 and 4 resisted the suit. They disputed the title of the plaintiffs. According to the defendants plaint B schedule property infact belonged to Kundu, the father of first defendant and grand father of other defendants, who owned several other properties also. By Ext.A4 dated 14.7.1955, Kundu gifted the property to the first defendant. The first defendant by a subsequent deed of the year 1978 settled the property in favour of the fourth defendant. Therefore, as on the date of the suit, the fourth S.A.883/1997. 3 defendant alone was entitled to the property. It is pointed out by the contesting defendants that the property of the plaintiffs situate in Sy. No.196/3, the re-survey number of which is R.S.222/1. The property of the fourth defendant is situated in R.S. No. 222/8. The plaintiffs had no manner of right over the brook, which separates the two properties. It is also pointed out that the plaintiffs were guilty of reclaiming the brook and they are attempting to do the same on the southern side of their property also. On the basis of these allegations, they prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants examined D.W.1. Exts.C1 to C3 are the commission reports and plan. Both the trial court as well as the appellate court found that the extent and survey numbers of the property do not tally with what is determined by the commissioner and then thereafter went S.A.883/1997. 4 on to identify the property with reference to the boundaries. Both the courts below concurrently found that the plaint B schedule property in respect of which relief was sought for by the plaintiff in fact belonged to them. That resulted in a decree in their favour. 5. Notice is seen issued on the following questions of law: “(1) Whether the lower courts were correct in decreeing the suit for recovery of possession when the plaintiff was not able to identify the suit property properly and when they have not been able to prove their title. (2) Whether the lower courts were correct in decreeing the suit without taking into consideration the decisions in AIR 1954 SC 526 followed in 1988 (1) KLT 856. (3) Whether the trial court was correct in decreeing the suit while holding that the plaintiffs have not been able to prove any trespass by defendants 1 to 4 in the plaint schedule property.” S.A.883/1997. 5 6. Learned counsel appearing for the appellant pointed out that normally the principle is that the property is to be identified with reference to the boundaries, in case there is a conflict with regard to the survey number and the extent. But in the case on hand, it is very evident from the commission report Ext.C2 that the plaintiffs had no property in Sy. No.222/8A and the B schedule property, in relation to which relief was sought for, was comprised in Sy. No.222/8A. According to learned counsel, this is a case where departure ought to have been made from the normal rule of relying on boundaries and the courts below ought to have found that the plaintiffs are not entitled to any relief. 7. Ext.C2 is the commission report. The commissioner has prepared Ext.C3 plan, where the commissioner has identified the properties. It is true that the commissioner has stated that the property belonging to the plaintiffs is comprised in R.S. No.222/1 and that of the defendants in R.S.222/8A. It is also true that the disputed portion has been located as comprised in Sy. No.222/8A. S.A.883/1997. 6 The commissioner has also noticed that the extent and the survey numbers did not tally. It was under those circumstances that the courts below were constrained to identify the property with reference to the boundaries. 8. Ext.A4 is the prior document of title of the fourth defendant who is alleged to be in possession of the property on the southern side of the plaint schedule property. The northern boundary of the property shown in Ext.A4 is a burial ground. In Ext.A1, by which the plaintiffs acquired the property, the southern boundary is shown as belonging to the defendants. In the absence of any other convincing materials and other acceptable materials, the courts below were justified in coming to the conclusion that the plaintiffs claim as disclosed by the documents of title produced by each of the parties is probably true. One must notice here that for the reasons best known to the defendants, the settlement deed by which the first defendant settled the property in favour of the fourth defendant was not produced. S.A.883/1997. 7 9. There is nothing to indicate that the courts below had applied the wrong principle of law in granting relief to the plaintiffs. The findings are essentially based on an appreciation of the evidence, there is nothing to show that the findings are either perverse or not warranted by the evidence on record. No substantial question of law arises for consideration. This Second Appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.