IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 SA.No. 450 of 1997(C) --------------------- AS.5/1995 of SUB COURT, PALA OS.250/1988 of MUNSIFF COURT, PALA .................... APPELLANT(S)/APPELLANTS/DEFENDANTS: -------------- 1.V.SUMATHY KUTTY AMMA, VRINDAVAN, VELLAPPADU, LALAM, PALAI. 2.SIVARAMAKRISHNAN NAIR, DO. DO. BY ADV. SRI.V.G.ARUN RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- P.T.CYRIAC, PULIKKIYIL, VELLAPPADU LALAM, PALAI. ADV. SRI.T.P.VARGHESE SRI.PHILIP T.VARGHESE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A.NO.450/1997 ORDER ON C.M.P.NO.1180/1997 IN S.A.NO.450/1997 DISMISSED. 13.10.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.450 OF 1997 ----------------------------------- Dated this the 13th day of October, 2010 J U D G M E N T The defendants in O.S.No.250 of 1988 on the file of the Munsiff Court, Pala are the appellants. Concurrent decision rendered by the two courts below declaring the title and possession of the plaintiff and granting him a decree of injunction against the defendants/appellants from interfering with his enjoyment over plaint schedule is challenged in this second appeal. 2. The dispute involved in the suit is over a pathway styled as idavazhi in the plaint schedule. Admittedly, the plaintiff has obtained title and possession over the property under A1 sale deed and the defendants, their property by B3 deed. Property of the defendants is situate to the east of the property obtained by the plaintiff under A1 deed. There is also no dispute that the property covered by A1 falls within Sy.No.1736/6. The name of S.A.NO.450/1997 2 the property purchased by the plaintiff is known as 'Parackanal purayidom' and that of the defendants, under B3, 'Kottackakathu Elangulathu purayidom'. In the aforesaid documents, A1 in favour of the plaintiff and also B3 document in favour of the defendants the respective boundary demarcation obtained by them is given with reference to the purayidom mentioned earlier. The western boundary of the property obtained by the defendants under B3 is shown as 'Parackanal purayidom' and that of the plaintiff covered by A1, its eastern boundary is shown as 'Kottackakathu Elangulathu purayidom', which later was obtained by the defendant under B3 deed. Such being the undisputed facts involved in the case, the only question that arose for consideration was whether the plaint schedule formed part of the property covered by A1 deed obtained by the plaintiff, over which, he sought for declaration of his title and possession and also injunction against the defendants. 3. On the materials placed, which also consisted of Exts.C1 and C2, a survey sketch and plan prepared by a surveyor S.A.NO.450/1997 3 assisting an advocate commissioner deputed by the court, apart from PWs.1 to 3 and Ext.A1 for the plaintiff and DWs.1 to 3 and Exts.B1 to B3 for the defendants, the identification of the properties covered by A1 and B3 was determined and it was found that the plaint schedule formed part of A1 sale deed obtained by the plaintiff. Accepting the report and plan with the other materials tendered in the case, the trial court granted a decree in favour of the plaintiff, as applied for, which, after re- appreciation of the evidence, was confirmed by the lower appellate court negativing the challenges raised to the decree of the trial court in the appeal. Essentially, the finding of fact so entered by the courts below on the disputed questions are sought to be assailed in the second appeal, which, needless to point out, cannot be entertained in view of the interdiction covered by Section 100 of the Code of Civil Procedure, which permits of a challenge in second appeal only if a substantial question of law arise for consideration over the decisions rendered by the inferior courts. After hearing the counsel on both sides, I find no question of law leave alone any substantial S.A.NO.450/1997 4 question of law is involved in the appeal. The finding entered by the court below that the plaint schedule formed part of the property covered under A1 sale deed, it is seen, is fully supported by the materials tendered in the case. It has come out in evidence that on the demarcating line separating the two properties, a boundary wall had been constructed by the defendants at least to some considerable extent and there is a thondu portion which falls within the property of the plaintiff. Not only the physical features present at the site which have been taken note of by the advocate commissioner in his report, but the respective descriptions shown under the title deeds with reference to the boundaries of the properties specified thereunder clearly indicate that the plaint schedule property, which is styled as idavazhi, formed part of the property obtained by the plaintiff under A1 sale deed. It is further noticed that the defendants had raised an alternate plea of adverse possession to dispute the claim for declaration of title sought for by the plaintiff. Pleadings in the case would indicate that necessary material particulars to raise such a defense was totally absent S.A.NO.450/1997 5 when such an alternate plea was canvassed. Both the courts below have rightly and correctly found that the defendants failed to establish such a plea. Perusing the materials tendered in the case, it is seen the plea so canvassed also has no merit at all. The appeal is devoid of any merit, and it is dismissed directing both sides to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.450 OF 1997 ----------------------------------- J U D G M E N T 13th day of October, 2010 S.A.NO.450/1997 7