IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 SA.No. 907 of 2000(G) ------------------- AS.59/1992 of ADDL.DISTRICT COURT-I, MAVELIKKARA OS.203/1988 OF MUNSIFF COURT, CHENGANNUR .............. APPELLANT [APPELLANT / PLAINTIFF] : ----------------------------------------------------------- RAGHAVAN PILLAI KARUNAKARAN PILLAI, THONDUTHARA VEETTIL, VANAVATHUKKARA MURI, THIRUVANVANDOOR VILLAGE. BY ADVS. SRI.R.HARIKRISHNAN SRI.N.ASHOK KUMAR SRI.N.C.SAJITH RESPONDENT [RESPONDENT / DEFENDANT] : ------------------------------------------------------------------ RAMAN PILLAI VASUDEVAN PILLAI, THONDUTHARA VEETTIL, VANAVATHUKKARA MURI, THIRUVANVANDOOR VILLAGE. BY ADV. SRI. D. PEETHAMBARAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 907 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of February, 2011. JUDGMENT The plaintiff, who is aggrieved by the concurrent findings against him, is the appellant. 2. The plaintiff and the defendant own properties adjacent to each other. Plaint item No.1 belongs to the plaintiff and item No.2 belongs to the defendant, which is on the southern side of plaint item No.1. Derivation of title narrated in the plaint need not be reiterated here, since that has been stated in the judgments of the courts below. 3. Pointing out that the boundaries need to be fixed between the two properties, the suit was laid. 4. The defendant resisted the suit by pointing out that the present suit was an attempt to get over the decree in an earlier suit between the same parties as O.S. 117 of 1970, in which the decree was passed against the plaintiff S.A.907/2000. 2 herein, which has become final. On the basis of these pleadings, he prayed for a dismissal of the suit. 5. On the basis of the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts. A1 to A2(a) from the side of the plaintiff. The defendant had Exts.B1 to B4 marked. Exts.C1 to C3 are the mahazar commission report and plan. 6. The trial court found that the contention taken by the defendant that the present suit was claiming to be an attempt to get over the earlier decree is fully justified going by the available materials. It was found that in the earlier suit, ie. O.S.17 of 1970, in fact the defendant herein was the plaintiff. He had obtained a decree against the plaintiff in the present suit and he carried the matter in appeal and further in Second Appeal also. The decree of the trial court was confirmed in appeal and relief was granted to the plaintiff in the said suit. The judgment and decree of the S.A.907/2000. 3 courts below are Exts.B2 and B4. On the basis of these findings, the suit was dismissed. 7. The plaintiff carried the matter in appeal as A.S.59 of 1992. The appellate court too found that there was no justification in the present suit in the light of the decree in the earlier suit, ie., O.S. 117 of 1970 and the present attempt was only to get over the decree in the earlier suit. The appeal was also dismissed. 8. Notice is seen issued on the following questions of law: “(1) When the Honourable High Court remanded the case to the lower appellate court directing it to dispose of the case on merits, is the lower court legally bound to determine the points for determination, consider the evidence available in the case and render the decision thereon. (2) When in a suit based on resurvey conducted by the authorities concerned, and which is not challenged by the opposite party in appropriate proceedings, is the court before which the suit is filed legally bound to effectuate the S.A.907/2000. 4 measurement of the property conducted by the concerned authorities.” 9. The main contention raised by the learned counsel for the appellant is that it was after the decree in the earlier suit that resurvey proceedings were finalized and it has become necessary to put up the boundary after the resurvey has been finalized. 10. There is no merit in the above contention. The earlier suit, which was one for declaration of title and possession and for permanent injunction, was decreed and the plaintiff therein is the defendant in the present suit. In that suit the plaintiff herein, who was the defendant in that suit , had contended that the property in dispute was in his possession and belonged to him. The said contention was found against and a decree was granted in favour of the plaintiff in that suit. The lower appellate court has rightly noticed that it is unnecessary to fix the boundary in the light of the judgment and decree in O.S. 117 of 1970. It may be S.A.907/2000. 5 noticed that the said decree was confirmed in appeal and also in Second Appeal by this court . As rightly noticed by the lower appellate court, no relief can be granted to the plaintiff in the light of the earlier judgment and decree. No grounds are made out to interfere with the findings of the courts below. This appeal is without merits and accordingly it is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.