IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH FEBRUARY 2010 / 1ST MAGHA 1931 RSA.No. 815 of 2009() --------------------- AS.658/1990 of III ADDL. DISTRICT COURT, THIRUVANANTHAPURAM OS.768/1986 of II ADDL.MUNSIFF COURT,NEYYATTINKARA .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------- DEVARAN RAVEENDRAN KUZHAKKATTUKOAM VADAKKEKARA VEEDU, PARASUVAIKKAL DESOM, PARASSALA PAKUTHY, NEYYATTINKARA. BY ADV. SRI.SHABU SREEDHARAN SMT.Y.SEPONY SRI.JOHN JACOB SRI.P.SANJAY SHENOI RESPONDENT(S)/RESPONDENTS 1-3 AND ADDITIONAL RESPONDENTS 5-12 (RESPONDENTS 4-9 ARE THE LEGAL HEIRS OF 3RD RESPONDENT AND 10-12 ARE THE LEGAL HEIRS OF 2ND RESPONDENT)/DEFENDANTS: --------------- 1. VISWANATHAN A.V.SUKUMARADAS KUZHAKKATTUKONAM VADAKKEKARA VEEDU PARASUVAIKKAL DESOM,PARASALA PAKUTHY NEYYATTINKARA TALUK. 2. PONMANI, D/O.JACOB, (DIED) SUDHA BHAVAN, PARASUVAIKKAL DESOM PARASALA PAKUTHY, NEYYATTINKARA. 3. MADAN KUNJAN (DIED) DO..DO.. 4. KUNJAMMA, D/O. ARTHA, SUDHA BHAVAN PARASUVAIKKAL, PARASALA PAKUTHY, NEYYATTINKARA. 5. M.K.KUMAR DO..DO.. 6. SOUDARA RAJAN DO..DO.. RSA NO.815/2009 2 7. PUSHPARAJAN DO..DO.. 8. KRISHNA KUMARI DO..DO.. 9. SREEKUMARI DO...DO... 10. A.SUDHAKARAN, S/O.PONMANI SUDHA BHAVAN, PARASUVAIKKAL DESOM PARASSALA PAKUTHY, NEYYATTINKARA. 11. P.SAILAJA DO..DO... 12. P.SUJATHA DO..DO.. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.815 of 2009 -------------------------------------- Dated this the 10th day of February, 2010. JUDGMENT Appellant, unsuccessful in the courts below in getting declaration of title and possession claimed by him has preferred this Second Appeal. According to the appellant suit property originally belonged to his grandmother as per a gift deed of the year 1117 and she, in 1124 executed Ext.A3, mortgage deed (marked in the first appeal) in favour of mother of appellant who in turn assigned her right as mortgagee to the appellant in the year 1984. Therefrom appellant claimed to be in possession of the suit property. He claimed that on the west of suit property there is a mud wall but there are no defined boundaries on other sides and hence the suit for declaration of title and possession and fixation of boundary. Respondent No.2 who contested the suit claimed that appellant has no right or possession over the suit property and that documents relied by the appellant are not valid and not binding on respondent No.2. He disputed the descriptions in the plaint schedule. He admitted that there was a gift deed in favour of the grandmother of appellant in 1117 but claimed that one Madan Mallan had filed O.S.No.376 of 1119 challenging that gift deed and obtained a favourable decree. In appeal at the instance of the grandmother of appellant, that case was remanded to the trial court . Then there was a compromise between parties to that suit and the defendants in that suit were given one acre as per assignment deed No.1411 of 1950. Mother of appellant executed Ext.B1, RSA No.815/2009 2 partition deed No.2274 dated 17.10.1973. According to respondent No.2, appellant has no right, title or interest over the suit property and the mother of appellant has got right and possession only of 25 cents as per Ext.B1. Out of the said 25 cents, 21 cents has been assigned to the husband of respondent No.2, and on the death of husband of respondent No.2 she is in possession and enjoyment of the said 21 cents. Respondent No.2 claimed that she is in possession of total of 77 ½ cents including the 21 cents assigned to the husband of respondent No.2. Courts below found that there is no proper identification of the property and dismissed the suit. Hence the Second Appeal. 2. Ext.A1 is the photocopy of assignment deed No.6086 of 1984 executed on the strength of Ext.A3, mortgage deed No.6506 of 1124. Ext.A1 refers to 16 cents being a portion of larger extent. Courts below found that description of property in the plaint schedule did not tally with descriptions in Ext.A1. Advocate commissioner has submitted Exts.C1 and C1(a), report and plan. It is seen from Ext.C1 that disputed property was identified by the commissioner (only) as shown by the appellant (plot EFGHIJKPQR). As per Exts.C1 and C1(a) on the east of that property it is property in possession of one Jeevanayakam. But, plaint schedule description is as if property on the west is of Jeevanayakam. As per Exts.C1 and C1(a), on the south of property of said Jeevanayakam is the property of Kunjamma. But in the plaint schedule RSA No.815/2009 3 southern boundary is stated as property of Kunjamma. As per Exts.C1 and C2 (a) on the west of disputed property (as shown by the appellant) it is the property of Sukumaradas. But in the plaint schedule it is stated as the property of Jeevanayakam. As per Exts.C1 and C1(a) on the north of disputed property it is the property of Jayaraj purchased from Saraswathi. But, plaint schedule description is as if property on the north is of one Sivadas. Respondent No.2 claimed right over the disputed property as per Exts.B1 to B3 and B5. PW1, advocate commissioner has stated that the property claimed by respondent No.2 as per the said documents and the property claimed by the appellant are the same. Courts below after referring to the oral and documentary evidence and report and plan prepared by the advocate commissioner came to the conclusion that identity of the property will not be established. 3. It is contended by learned counsel for appellant that Ext.A3 marked in the first appellate court would show that the survey number of the disputed property tallied with the survey number stated in Ext.A3. But in a suit of this nature where prayer is for declaration of title and possession and fixation of boundary, merely based on survey number alone identification of the property will not be answered. Courts below have referred to the evidence and come to RSA No.815/2009 4 the conclusion that identity of the property is not established. That is a finding of fact based on evidence on record. I do not find any substantial question of law involved in this Second Appeal requiring its admission. Resultantly Second Appeal is dismissed in limine. I.A.No.1766 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks