IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 RSA.No. 823 of 2006(F) --------------------- AS.72/2000 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA OS.119/1992 of MUNSIFF – MAGISTRATE, COURT, PERAMBARA .................... APPELLANT/APPELLANT IN AS/DEFENDANT IN O.S. --------------------------------------------------------- PUTTATTEE PEEDIKAYIL KATHEESA UMMA, D/O. ANDRU, MUSLIM, AGED 71 YEARS, HOUSE WIFE, LIVING AT ERAVATH HOUSE, ERAVATTOOR AMSOM & DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYASHREE PRIYA RESPONDENTS/ RESPONDENTS IN AS/PLAINTIFFS IN O.S. --------------------------------------------------------------- 1. ERAVATH IBRAYI, S/O. ABDULLA, MUSLIM, AGED 70 YEARS, BUSINESS, LIVING AT ERAVATH HOUSE, ERAVATTOOR AMSOM & DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. CHENIKANDI MEETHAL JAMEELA, D/O. IBRAYI, AGED 38 YEARS, HOUSE WIFE, LIVING AT ERAVATH HOUSE ERAVATTOOR AMSOM & DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. ADV. SRI.C.S.ABDUL SAMMAD SRI.V.D.BALAKRISHNA KARTHA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 823 of 2006 ========================= Dated this the 22nd day of January, 2009. JUDGMENT The defendant in O.S. No. 119 of 1992 on the file of the Munsiff's Court, Perambra is the appellant in this Second Appeal. The said suit instituted by the respondents herein was one for fixation of boundary of the plaint B schedule property admeasuring 93.88 cents so as to demarcate the same from the plaint C schedule property belonging to the defendant and admeasuring 93.83 cents. The parties are close relatives. Admittedly, as per Ext.A1 partition deed dated 20.06.1983, the plaintiffs were allotted 93.88 cents forming the B schedule thereto and the appellant/defendant was allotted 93.83 cents being the C schedule thereto. The plaint B schedule corresponds to the B schedule in Ext.B1 and the plaint C schedule corresponds to C schedule in Ext.A1 partition. 2. The trial court deputed an Advocate Commissioner. Exts. C3 and C4 are the plan and report submitted by the Commissioner in the year 1992. Thereafter, the said plan and report were remitted to the Commissioner who filed Exts. C1 R.S.A. No. 823/2006 : 2 : plan and C2 report in the year 1999. The plaint B schedule property was identified as plot A series together with the excess land in the middle shown as plots I to XVI, the total extent of which was found to be 93.88 cents. The plaint C schedule property was identified by the Commissioner as plot B series, the total extent of which was found to be 92.88 cents. It was deficient by .95 cents which was held to be the portion taken for the purpose of a road as conceded by the appellant before the Advocate Commissioner. The judgment of the trial court makes mention of this and this was not taken exception to before the lower appellate court as well. The courts below, thus, held that it is only by including the excess land identified as Plots I to XVI having a total extent of 194.18 squire links, that the property of the plaintiff would be satisfied so as to make a total of 93.88 cents. The courts below accepted the Commissioner's identification of the line JKLMNOPQ as the common boundary dividing the plaint B and C schedule properties. Accordingly, the courts below fixed the eastern boundary of the plaint B schedule property along the line IJKLMNOPQ in Ext.C1 plan. No question of law, much less, R.S.A. No. 823/2006 : 3 : any substantial question of law arises for consideration. The questions of law formulated in the memorandum of Second Appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 22nd day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 823/2006 : 4 :