IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P. BHAVADASAN MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 SA.No. 603 of 1999(E) -------------------- AS.314/1994 of SUB COURT, NEYYATTINKARA OS.185/1991 of PRL. MUNSIFF COURT, NEYYATTINKARA ................ APPELLANT / APPELLANT / ADDL. PLAINTIFFS 1 AND 2 / APPELLANT : ------------------------------------------------------------------------------------------------------ 1. KRISHNAN NADAR JANARDHANAN NADAR, PULLUVILA THEKKE VEEDU, KILATHOOR DESOM, KARAKODE VILLAGE. 2. KRISHNAN NADAR DHARMAJAN OF DO. DO. BY ADVS. SRI.M.RAJASEKHARAN NAYAR SMT. K.N. RAJANI RESPONDENTS / DEFENDANTS / RESPONDENTS : ---------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. DIRECTOR, RESURVEY, THIRUVANANTHAPURAM. 3. ASSISTANT DIRECTOR, RE-SURVEY, THIRUVANANTHAPURAM. 4. SUPERINTENDENT, RE-SURVEY, NEYYATTINKARA. R1 TO R4 BY GOVERNMENT PLEADER SRI. JAYAKRISHNAN P.R. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 603 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of January, 2011. JUDGMENT Slapped with the concurrent findings against the plaintiffs, they have come up in appeal. 2. The suit was one for declaration of title and possession and for setting aside the survey proceedings. The plaint consists of A and B schedule items, title to which are traced by the plaintiffs through Exts.A1 and A4. According to the plaintiffs, resurvey mistakes were committed by the authorities and that has resulted in showing a portion of the property which was actually belonged to the plaintiffs as puramboke land. After exhausting the statutory remedy, they have come up for rectification of records and for other reliefs. 3. The State resisted the suit. They justified the survey and contended that the plaintiffs are not entitled to any relief. S.A. 603/1999. 2 4. On the basis of the pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A11 from the side of the plaintiffs. The defendants examined D.W.1. Exts.C1 and C1(a) are the report and plan prepared by the commissioner. 5. The trial court found that except the two partition deeds, based on which title was traced to the plaintiffs, no other document is produced by the plaintiffs to establish title to the suit property. The trial court noticed that the partition deeds are usually not taken as documents of title and the plaintiffs for reasons best known to them chose not to produce any other document to establish their title to the suit property. It has also to be noticed that they had taken no steps to have the survey or resurvey records produced before the court. Based on these findings the suit was dismissed. 6. The plaintiffs carried the matter in appeal as A.S.314 of 1994, the appellate court for the very same S.A. 603/1999. 3 reasons as that found by the trial court, dismissed the appeal. Hence this second appeal. 7. Notice has been issued on the following substantial questions of law: “A. Whether the re-survey plan prepared by the authorities are final? B. Are not the courts below bound to consider the contentions of the parties against the re-survey on the basis of the documents produced by the parties? C. Whether patta alone will prove title and possession of the parties D. Are not the findings of the courts below wrong in view of its failure to consider the scope of Act 37 of 1961?” 8. Learned counsel appearing for the appellants pointed out that the courts below have erred both on facts and in law in dismissing the suit. According to learned counsel the commission report and the plan are not properly considered and that has resulted in miscarriage of justice. The commissioner has identified the properties and the S.A. 603/1999. 4 finding of the courts below that the plaintiffs have not produced prior documents of title deeds cannot be countenanced. 9. Though the argument may look attractive, it has to be said that it is without basis. As rightly pointed out by the courts below the partition deed is not usually taken as document of title. It is well settled that partition is only a division of status, where one person is given exclusive right over a portion of the property in lieu of giving up claim over rest of the property. The person has pre-existing right to the property. It is surprising to notice that even after the trial court had noticed that the document of title had not been produced by the plaintiffs to establish their title, there was no attempt on the part of the plaintiffs to produce the document of title at the appellate stage. They remained satisfied with whatever they had produced before the trial court. It is not discernible from the commission report or plan as to on what basis the sketch has been drawn by the commissioner. It does not refer to any particular document S.A. 603/1999. 5 of title which could have been handed over to him by the plaintiffs at the time of preparing the report and plan. 10. The plaintiffs traced title to various documents, which they have not produced. It is also surprising to note that they felt it unnecessary to have either the survey or resurvey sketch produced. There was also no attempt to have the properties identified with respect to the survey and resurvey plan. It was under those circumstances that both the courts below were compelled to hold that there is nothing to indicate that the resurvey authorities have erred in any manner in conducting the survey and coming to the conclusion that a portion of the property in the possession of the plaintiffs is puramboke land. No justifiable grounds are made out to interfere with the judgments and decrees of the courts below. Further, the findings of the courts below are based on appreciation of evidence and it is a finding on fact. No substantial question of law, much less any substantial question of law arises for consideration in this Second S.A. 603/1999. 6 Appeal. This Second Appeal is without any merits whatsoever. It is accordingly dismissed. Accordingly, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.