IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 RSA.No. 697 of 2011() --------------------- AS.98/2003 of SUB COURT, NEDUMANGAD OS.532/1998 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT/DEFENDANTS: ----------------------------------------- 1. VIKRAMAN NAIR, S/O.JANARDHANAN NAIR, AGED 69, LAKSHMI VILASOM, CHEERANIKARA, THEKKADA VILLAGE. 2. BHAGAVATHY AMMA, D/O.SAVITHRI AMMA, AGED 66, RESIDING AT DO. DO. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): PLAINTIFF: ------------------------- KRISHNA PILLAI, AGED 92 YEARS, KRISHNA NIVAS, CHEERANIKKARA, THEKKADA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.697 of 2011 ............................................ DATED THIS THE 18th DAY OF JULY, 2011 JUDGMENT Defendants in O.S.532 of 1998 on the file of Additional Munsiff Court, Nedumangad are the appellants. Respondent is the plaintiff. Respondent instituted the suit for putting up a boundary and for permanent prohibitory injunction. Plaint schedule property is 2 acre 93 cents in Survey No.2721 of Vembayam Village which form part of the 4 acre 93 cents, excluding the 2 acres transferred under Ext.A2 settlement deed. Respondent contended that he obtained possession of the plaint schedule property under Ext.A1 settlement deed and he executed Ext.A2 settlement deed in respect of 1 acre in favour of the second appellant daughter and also 1 acre in favour of the other daughter, Rajeswari. A road was constructed through the property of the appellants and the respondent. The plaint schedule property is lying as a compact plot surrounded by boundaries on all sides. Appellant is the husband and second appellant his wife. They are now on inimical terms with the RSA 697/2011 2 respondent. First appellant instituted O.S.267 of 1996 before Sub Court, Nedumangad seeking a decree for injunction against the respondent which was dismissed. As the appellants are attempting to trespass into the property, a separating boundary is to be fixed. The respondent subsequently got amended the plaint after the Commissioner submitted the report and plan contending that there is only a nominal boundary on the west and north of the plaint schedule property on HG and HJ line and a boundary is to be fixed on that line. Appellants resisted the suit disputing the identity of the property raising a counter claim. Appellants would contend that respondent originally had 4 acre 93 cents and consequent to the construction of Thekada Cheeranikara road, 50 cents was lost for the construction of the road and respondent gifted 1 acre to the second appellant and 1 acre to Rajeswari and is in possession of only the balance and out of the entire 9.93 acres, the mother of the first appellant obtained 5 acres and was in possession of that property and a small canal is in existence separating the properties and they constructed a retaining wall on either side of the canal to protect the respective properties and in the meantime a public road was RSA 697/2011 3 constructed through the middle of the properties in the north- south direction and that road is named Thekada Cheeranikara road. In 1990, respondent gifted 1 acre to the second appellant and the said 1 acre lies on the northern side of the 2 acre plot belonging to her husband, the first appellant and ever since the date of Ext.A2, the entire 3 acres has been in the possession of appellants and the anjili tree is standing about 10 metres inside the northern boundary line of the property of appellants and the respondent is not entitled to the decree in respect of any portion of the property in the possession of appellants. Appellants sought a decree for permanent prohibitory injunction in respect of the said 3 acres showing it as the counter claim schedule property. 2. Respondent resisted the counter claim by filing a written statement contending that as the suit for injunction, O.S.267 of 1996 filed by the first appellant, was dismissed, appellants are not entitled to the counter claim sought for. It was also contended that the description of the counter claim schedule property is not correct and the anjili tree does not form part of the said property. 3. Learned Munsiff, on the evidence found that the RSA 697/2011 4 Commissioner has identified the plaint schedule property and the property covered under Ext.A2 correctly and plot GHJKFLMN is the plaint schedule property and plot MNBL is the 1 acre settled in favour of Rajeswari and plot OCKQRJH is the 1 acre settled in favour of the second appellant and the 2 acre claimed by the first appellant is the plot GHODP, the yellow coloured plot, and GH and HJ lines separates the plaint schedule property from the property of appellants and appellants are not entitled to the decree for injunction in the counter claim and granted a decree for permanent prohibitory injunction restraining the appellants from trespassing into the plaint schedule property and also permitted him to put up a boundary line fixing on GH, HG and RQ lines marked in Ext.C1(a) plan. Appellants challenged the judgment before Sub Court, Nedumangad in A.S.98 of 2003. Learned Sub Judge, on re-appreciation of the evidence, confirming the findings of trial court, dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellants was heard. The argument of the learned counsel is that Commissioner has not properly identified the property belonging to the first appellant, RSA 697/2011 5 husband and the property belonging to the second appellant wife under Ext.A2 settlement deed and on a proper identification, it should have been found that the property belonging to the second appellant is not the blue coloured plot as demarcated in Ext.C1(a) plan, and it extends further south upto the southern boundary of GN line and therefore the decree granted is not sustainable. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though the learned counsel appearing for appellants vehemently argued that the one acre belonging to the second appellant under Ext.A2 settlement deed should extend further towards the south and pointed out that the western boundary of the property under Ext.A2 is the property of first appellant, which is the yellow coloured plot and therefore the property covered under Ext.A2 belonging to the second appellant should extend further towards the south, I find no basis for such a submission. The learned counsel made available copies of the depositions of the Commissioner and the Surveyor as well as the plan submitted by the Commissioner. I find that when either the Commissioner or RSA 697/2011 6 the Surveyor was examined, they were not cross examined with regard to the identification of the one acre plot as such. There was not even a suggestion that the one acre plot identified by the Commissioner as HJRQKCO is not correct, and instead it should extend further towards the south. Though it was argued that as the western boundary of the property settled in favour of second appellant under Ext.A2 is the property of her husband and the identification is not correct, I find that the plot as identified by the Commissioner shows that the entire western boundary is the yellow coloured portion belonging to the first appellant. Therefore, on that basis, it cannot be said that the identification is not correct. Ext.A2 shows that there is nothing in the description of the property set apart to the second appellant, to hold that the property should extend towards the entire eastern boundary of the yellow coloured portion. The only indication in Ext.A2 is that the one acre plot lies both on the east and south of the road. The plot as identified by the Commissioner is such a plot. In the light of these materials, the factual finding of the courts below that one acre plot belonging to the second appellant under Ext.A2 is plot HJQKCO can only be accepted. I find that RSA 697/2011 7 there was no serious dispute with regard to the identity of the 2 acre plot belonging to the first appellant, as demarcated by the Commissioner viz, the yellow coloured plot. If that be the case, as rightly found by the courts below, the property of the respondent can only be of the remaining property excluding the 1 acre settled in favour of Rajeswari viz, plot MNBL and 1 acre settled in favour of second appellant, viz plot HJRQKCO. The courts below rightly found that respondent is entitled to put up a boundary on GH, HJ and QR line. 6. Though the learned counsel vehemently argued that as the 2 acre plot belonging to the first appellant and 1 acre plot belonging to the second appellant under Ext.A2 are not disputed, a decree for injunction should have been granted in the counter claim, I find that the appellants are not admitting, even at the second appellate stage, that they are in possession of plot HJRQKCO. It is pertinent to note that their very case is that the 1 acre plot extends further towards the south, evidently because of the existence of the Anjili tree and its ownership is being disputed by the parties. There is no case that the respondent is claiming any right over the yellow coloured portion which lies to RSA 697/2011 8 the west of GHO line. In such circumstances, I find that the courts below rightly did not grant the decree for injunction in the counter claim also. As no substantial question of law is involved, the appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk