IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 RSA.No. 663 of 2005 --------------------------------- AS.86/1999 of SUB COURT, NEYYATTINKARA OS.646/1996 of PRL.M.C., NEYYATTINKARA .................... APPELLANTS/RESPONDENTS/DEFENDANTS: 1. DAMODARAN NAIR, AGED 73, NEERAMKKOTTUKONAM KUNDARAKKATTU PUTHEN VEEDU, EDAKKODE DESOM, PALLICHAL VILLAGE. 2. SREEMATHY AMMA, AGED 48, W/O.DAMODARAN NAIR, DO. DO. 3. VISWAMBHARAN NAIR, S/O.DAMODARAN NAIR, AGED 30, DO. DO. 4. MOHANAKUMARI AMMA, D/O.SREEMATHY AMMA, AGED 33, DO. DO. 5. SIVA KUMAR, S/O.DAMODARAN NAIR, AGED 25, DO. DO. BY ADV. SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENTS/APPELLANTS/PLAINTIFFS: 1. MANUEL NADAR RAJU, AGED 43, NEERAMKOTTUKONAM, KUNDARAKKATTU PUTHEN VEEDU, EDAKKODE DESOM, PALLICHAL VILLAGE. 2. AMMUKUTTI SUKUMARI, AGED 33, W/O.MANUEL NADAR RAJU, DO. DO. BY ADV. SRI.L.MOHANAN FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Though the appeal is posted to this day as desired by the counsel for the appellants and as last chance, there is no representation for the appellants and counsel for the appellants, though, altogether, there are three Advocates, none of them is present. In the result, this RSA is dismissed for default. 8.7.2008 SD/-K.P.BALACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.663 of 2005 = = = = = = = = = = = = = = Dated this the 22 nd day of October, 2008 JUDGMENT Defendants 1 to 5 in O.S.No.646 of 1996 on the file of the Principal Munsiff's Court, Neyyattinkara are the appellants in this second appeal. The said suit was one for declaration of title, recovery of possession and for putting up of a compound wall. 2. The plaintiffs claimed title and possession over the plaint A Schedule property (of which Plaint B Schedule property was claimed to be a portion) admeasuring 45 cents as per Exts.A1 and A2. Under Ext.A1 sale deed he got assignment of 20 cents forming the western portion of the property and as per Ext.A2 sale deed he got assignment of 25 cents forming the eastern portion of the property. 3. On 15.6.96 the defendants trespassed into the portion of the plaint A Schedule Property and reduced the same into their possession. The said portion was described as the plaint B Schedule Property. 4. The suit was resisted by the appellants contending, inter R.S.A.No. 663 of 2005 2 alia, as follows:- There is no property answering the description of the plaint B Schedule Property available at the site. The property of the plaintiff is on the southern side of the defendant's property. 98½ cents of land comprised in Survey No.201/2B belongs to defendants 1 and 2 by virtue of Ext.B1 sale deed dated 1.8.95 and 10 cents of property therefrom was given to the 4th defendant and there is a clear boundary separating the properties of the plaintiffs and the defendants. The property of the defendants is lying at a lower level, 1½ feet below that of the plaintiffs'. The plaintiffs have no property on the eastern side of the aforesaid property of the defendants. Their property is on the southern side of the defendants' property. The allegation of trespass is false and the same is liable to be dismissed. 5. On the side of the plaintiffs, the 1st plaintiff was examined as PW1 and Exts.A1 to A17 were marked. Pws 1 to 3 and Ext.B1 to B6 were marked. The report and plan submitted by the Advocate Commissioner deputed by the trial court were marked as Exts.C1 and C1(a). 6. The Munsiff Court, after trial, as per judgment dated R.S.A.No. 663 of 2005 3 28.10.98 dismissed the suit holding that the plaintiff had not identified the plaint B schedule Property so as to seek the relief of recovery of possession on the strength of title. On appeal preferred by the plaintiff as A.S.No.56/99, the Sub Court, Neyyatinkara as per judgment dated 18.1.05 reversed the findings of the trial court and decreed the suit holding that the plaint A schedule property has been identified as plot ABCDEFGH and that the plaint B schedule property which forms the northern extremity of the plaint A schedule property has been identified as plot GDEF in Ext.C1(a) plan and accordingly granted a decree for recovery possession. It is the said decree which is assailed in this Second Appeal by the defendants. 7. The learned counsel for the appellants/ defendants has raised the following substantial questions of law at page 4 of the memorandum of appeal:- i. Whether the plaintiff is denuded with Decree for recovery of possession when the definite stand of the plaintiff in the box regarding the identity of property by direction sought to be recovered is inconsistent with the direction of property by description in the plaint? R.S.A.No. 663 of 2005 4 ii.Whether the first Appellate Court committed manifest injustice by interfering with the finding of trial court that the plan prepared by Commissioner in accordance with re-survey plan when the re-survey didn't attain finality is unacceptable? iii. Whether the first Appellate Court committed apparent error by accepting the identification of property sought to be recovered by plan prepared by Commissioner which is totally inconsistent with the plaint schedule description of property sought to be recovered and indirect conflict with the recital contained in the document relied on for tracing title with respect to the property sought to be recovered? iv.Whether the entries in revenue records would confer title and possession of property? 8. In support of the above questions of law the learned counsel submitted that there has been no attempt to identify the properties with reference to title deeds and that the only identification by the Commissioner was with reference to Ext.A3 resurvey plan. The re-survey operations have not attained finality. Hence, it was not safe on the part of the lower appellate R.S.A.No. 663 of 2005 5 court to blindly follow Ext.C1(a) plan so as to grant a decree for recovery of possession. 9. I cannot agree. Firstly the lower appellate court has held that the resurvey in Pallickal village, where the properties are situated, has become final and it can safely be relied on. Secondly, the plaint A Schedule property admittedly consists of 25 cents forming the eastern portion covered by Ext.A2 and 20 cents forming the western portion covered by Ext.A1. The Advocate Commissioner has very clearly identified the plaint A schedule property having an extent of 43½ cents as plot ABCDEFGH. Plot GDEF which forms the upper tail of the plot ABCDGH is also a part of the plaint A Schedule property and it is this tail portion which was alleged to be trespassed upon by the defendant and identified as the plaint B Schedule property. 10. It is pertinent to note that both the plots ABCDGH and GDEF (plaint B Schedule property) are both comprised in Re- survey No.101/10 whereas the definite stand of the defendants in their written statement is that their property is comprised in old survey No.201/2B corresponding to in re-survey No.101/3. They have no claim that their property is comprised in R.S.No.101/10 R.S.A.No. 663 of 2005 6 The property comprised in Re-survey No.101/10 is lying to the north of the plot ABCDGH and to the west of plot GDEF in Ext.C1(a) plan. Hence, the conclusion reached by the lower appellate court cannot be said to be wrong or unsustainable. No questions of law, much less any substantial question of law arises for consideration in this second appeal. The substantial questions of law formulated in the memorandum of appeal do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 22 nd day of October, 2008. V. RAMKUMAR, JUDGE sj