IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 SA.No. 281 of 1999(A) -------------------------------- AS.256/1989 of ADDL. DISTRICT COURT, KOTTAYAM OS.186/1986 of MUNSIFF COURT, VAIKOM .................... APPELLANTS/RESPONDENTS 1 TO 3/DEFENDANTS 1 TO 3: --------------------------------------------------------------------------------------- *1. POOVAN KUNJAN @ KUNJAYYAN, KAROTTETHADATH VELLOOR VILLAGE, VADAKARA MURI. * (DIED) 2. PAPPY, W/O.KUNJAN OF -DO- -DO-. 3. REGHU, S/O.KUNJAN OF -DO- -DO-. *ADDL. APPELLANTS 4 TO 8 IMPLEADED ADDL. A4: M.K. RAJAN, AMAL NIVAS, VADAKARA P.O. ADDL. A5: BHARATHI GOPALAN, CHENNAMKUZHIYIL, THITTOOR, KALAHATTOOR P.O. ADDL. A6: MOHINI ANRUDHANAN, ARUNIMA NIVAS, AZHUMANTHURUTHU P.O. ADDL. A7: OMANA VIJAYA KUMAR, MADAMPIKKAL, KUDITHOOR P.O. ADDL. A8: SEENA VIDHYADHARAN, KALAPPALLIL, THALAYAZHAM P.O. *ADDL. APPELLANTS 4 TO 8 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 1ST APPELLANT AS PER THE ORDER DATED 17/07/2007 IN I.A.1115/2007. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE, ADV. SMT.VANAJA MADHAVAN, SRI.S.SUJIN. SA.No. 281 of 1999(A) RESPONDENTS/APPELLANTS & 4TH RESPONDENT/PLAINTIFFS & 4TH DEFENDANT: -------------------------------------------------------------------------------------------------- 1. P. LEELA, W/O.GOPALAN, ELAYIDATHU EDATHIL, VELLOOR VILLAGE, VADAKKEMURI. 2. GOPALAN, S/O.AYYAPPAN, ELAYIDATHUMADATHIL, VELLOOR VILLAGE, VADAKKE MURI, VADAKARA MURI. 3. DASAN, S/O.KRISHNAN, RESIDING AT NIREPPETHU HOUSE, VELLOOR VILLAGE, VADAKARA MURI. R1 & R2 BY ADV. SRI.P.R.VENKETESH. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 281 of 1999(A) ORDER ON C.M.P.NO.788/1999 & I.A.NO.636/2006 IN S.A.NO.281/1999 CLOSED 10/02/2011. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs P.BHAVADASAN, J. ------------------------------------- SA No.281 of 1999-A ------------------------------------- Dated this the 10th day of February 2011 Judgment Defendants 1 to 3 in OS No.186/86 on the file of the Munsiff's Court, Vaikom, who suffered a decree at the hands of the lower appellate court, are the appellants before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The short facts necessary for the disposal of this appeal are as follows : According to the plaintiffs, as per Ext.A1 document dated 23.08.1976, they obtained 1.24 acres of land comprised in Survey No.743/1/C. Eversince then, they have been in possession of the said property. It is alleged that the defendants have trespassed into a portion of their property having an extent of 18 cents and that is shown as the plaint schedule property. It is pointed out that the defendants have no manner of right over the suit property SA 281/99 2 and that they have illegally trespassed into the same and reduced it into their possession and therefore the plaintiffs were constrained to institute the suit, for declaration of title and recovery of possession. 3. The defendants resisted the suit by pointing out that the 18 cents of land claimed by the plaintiffs is situated in Survey No.743/1/B and the plaintiffs have not obtained any extent in that survey number by virtue of Ext.A1 document. According to them, the 18 cents comprised in Survey No.743/1/B was obtained by Chothi, who is the deceased elder brother of the first defendant and that is evidenced by Ext.B1 document. The plaintiffs are illegally laying claim to the suit property. On the basis of these contentions, they prayed for dismissal of the suit. 4. On the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 3 and document marked as Ext.A1 from the side of the plaintiffs. The defendants had DWs 1 to 5 examined and Exts.B1 to B11 marked. Exts.C1 SA 281/99 3 to C2(a) are the commissioner's report and plan. 5. The trial court, on an evaluation of the evidence, came to the conclusion that the plaintiffs have not been able to establish their title to the 18 cents of land shown as the plaint schedule property and dismissed the suit. 6. On appeal by the plaintiffs, the lower appellate court found that the trial court has obviously erred in appreciation of evidence and in considering the commissioner's report and plan and came to the conclusion that the plaintiffs have established their title to the suit property. A decree in their favour followed. That has brought the defendants 1 to 3 before this court. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.Whether the declaration injunction granted to the property, not covered by the title deed is justified ? 2.Whether the virivu property can be declared as held by the plaintiffs in the absence of evidence of possession by SA 281/99 4 the plaintiffs ? 8. The learned counsel for the appellants contended that the lower appellate court has placed considerable reliance on Ext.C2(a) plan and report to come to the conclusion that the plaintiffs have established their title to the suit property. The learned counsel drew attention of this court to the fact that in several places, the lower appellate court has observed that no objection was filed to the commissioner's report, which is contrary to facts. According to the learned counsel for the appellants, they had filed objections to the commissioner's report and had even prayed for remitting the report for getting a proper report and plan. This vital aspect has been overlooked by the lower appellate court and that has resulted in miscarriage of justice. It is also pointed out that the plaintiffs had no claim to any portion of the property comprised in Survey No.743/1/B and in fact, the 18 cents claimed by them is comprised in that survey number and it is covered by Ext.B1 document. On this basis, the SA 281/99 5 judgment and decree of the lower appellate court are clearly unsustainable in law. 9. The learned counsel for the respondents, on the other hand contended that the lower appellate court has addressed itself to the questions involved in the suit and has come to the conclusion that the plaintiffs have established their title. Attention of this court was drawn to the fact that the defendants laid claim only to 91 cents of property of which 73 cents were obtained by them as per a sale deed and 18 cents were inherited by them from their predecessor-in-interest. The said 91 cents of land has been located as plot No.7 in Ext.C2(a). Even assuming, for argument sake that the contesting defendants have taken objection to the commissioner's report that plot no.3 shown as disputed item, is actually comprised in Survey No.743/1/B, they had no grievance regarding the identification of the property of 91 cents claimed by them, shown as Plot No.7 by the commissioner. If that be so, they have no right to say that the plaintiffs have no title to the SA 281/99 6 suit property. 10. It is true that the appellants before this court, had filed objections to the commissioner's report. But, a perusal of the objection shows that they had taken exception only to the identification of the plaint schedule property by the commissioner as comprised in Survey No.743/1/C. According to them, it is comprised in Survey No.743/1/B. As rightly pointed out by the learned counsel for the respondents, they had no objection to the identification of Plot No.7 which has an extent of 91 cents which is the property claimed by the defendants as belonging to them covered by the document of title and the portion inherited by them from late Chothi. 11. To the extent to which the lower appellate court says that the property comprised in Survey No.743/1/B is situated on the southern side of the property comprised in Survey No.743/1/C, there may be some fallacy. From Ext.C2(a) sketch, it is seen that there is a property comprised in Survey No.743/1/B on the northern SA 281/99 7 side also. But, that error is insignificant in this case. The commissioner in his plan and report, namely Ext.C2(a), has identified plots 1,2, 3, 4, 5, 8, 9 as the property obtained by the plaintiffs as per Ext.A1. One may remember that the total extent of property which the assignor of the plaintiffs held in Survey No.743/1/C was 2.48 acres. Out of that, 1.24 acres were assigned as per Ext.A1 in favour of the plaintiffs and the balance 1.24 acres were assigned in favour of the fourth defendant, which is shown as Item No.6 in Ext.C2(a) plan. It is true that the sketch produced by the commissioner shows that in fact, the property comprised in plaint schedule items 1 and 2, is comprised in Survey No.743/1/B, but that is insignificant. Major portion claimed by the plaintiffs is comprised in Survey No.743/1/C itself. 12. It is also true that the plaintiffs have averred in the plaint that within the 33 cents claimed by the first and second plaintiffs, the suit property is situated on the eastern side. The fact that the commissioner has noticed that going by the available extent of land, items 1, 2, 3 and SA 281/99 8 4 had an extent of 53.86 cents is highlighted by the learned counsel to point out that even without the 18 cents, the plaintiffs have excess property than what is available to them. 13. There may not be much relevance for this aspect because, without item no.3, the extent would not come to 1.24 acres as evidenced by Ext.A1 document. Of course, there is no recital in Ext.A1 that the plaintiffs had "വരവ' (excess land) and it is seen introduced in the plaint. But that does not mean that the plaintiffs have no right over item no.3 shown in the plaint since it is shown to be falling within Survey No.743/1/C. There is nothing to indicate that the said identification of the plaint schedule property is falling within Survey No.743/1/C is wrong or contrary to the documentary evidence in the case. May be that taking the plaint schedule property into consideration, the plaintiffs have excess land, but, that does not mean that the defendants can claim that property. The lower SA 281/99 9 appellate court has found that the demarcation of the property in Ext.C2 plan is not disputed. The defendants relied on Ext.B1 document which an extract of the thandaper register. It shows that Chothi had obtained 18 cents comprised in Survey No.743/1/B. That document is totally unhelpful to identify the allocation of the property. As already noticed, going by Ext.C2(a) plan, the property comprised in Survey No.743/1/B lies both on the northern and southern sides of the property comprised in Survey No.743/1/C and at the risk of repetition, one may remember that the defendants stacked their claim only to 91 cents which they possess the same going by the commissioner's report which shows that item no.4 has 91 cents. It is the above fact that has persuaded the lower appellate court to hold that the plaintiffs have succeeded in establishing their title and had granted a decree in their favour. There is nothing show that the findings of the lower appellate court are either perverse or unwarranted. It is a plausible view. If that be so, no interference with the judgment and decree of SA 281/99 10 the lower appellate court under S.100 of the CPC is called for since no substantial questions of law arise for consideration in the appeal. The second appeal is devoid of any merits and it is accordingly dismissed. P.Bhavadasan, Judge sta SA 281/99 11