IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 RSA.No. 579 of 2009() --------------------- AS.226/2006 of I ADDL. DISTRICT COURT, KOLLAM OS.40/2002 of MUNSIFF-MAGISTRATE'S COURT, SASTHAMCOTTA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- SUSEELA, AGED 38 YEARS, D/O.KUNJIKKA, PALLIYIRAKKATHU VEEDU, MUTHUPILAKKAD PADINJATTAKKARA MURI, SASTHAMCOTTA VILLAGE. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): RESPONDENT/DEFENDANT ----------------------------------- MADHAVAN, PALLIYIRAKKATHU VEEDU, MUTHUPILAKKAD, PADIYATTAKKARA MURI, SASTHAMCOTTA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.579 OF 2009 --------------------------- DATED THIS THE 14TH DAY OF JULY, 2009 JUDGMENT Appellant is the plaintiff in O.S.No.40/2002 on the file of the Munsiff-Magistrate's Court, Sasthamcotta. This appeal is directed against the decree and judgment in A.S.No.226/2006 on the file of the District Court, Kollam. The suit was filed for demarcation of boundaries, recovery of possession and for permanent prohibitory injunction. The suit was dismissed by the trial court and was confirmed in appeal. Hence, this second appeal. 2. The plaintiff claims title by virtue of Exts.A1 and A3 sale deeds. Exts.C1, C2 and C2(a) are the reports and plan submitted by the Commissioner with the assistants of the Surveyor. The plaint schedule property is 20 cents of garden land with a residential building wherein the plaintiff and her family resides. The defendant is the owner of land that lies on the -2- R.S.A.No.579/2009 eastern side of the plaint schedule property. The suit was filed on the allegation that the defendant tried to grab the eastern portion of the plaint schedule property. The trial court examined the question of title based on the oral and documentary evidence adduced by the parties. The trial court noted that the plaintiff obtained title over 20 cents of property in Sy.No.75/1. The prayer of the plaintiff is to measure out and demarcate the boundary of 20 cents of property in the plaint schedule. On measurement the Commissioner found that the total extent of property in possession of the plaintiff is 24.216 cents as per the re-survey records. The Commissioner's report and plan were accepted and no objection was filed. The trial court observed that the suit is primarily for demarcation of boundaries on the basis of title obtained by the plaintiff. Going by the report and plan there is an excess of 4 and odd cents of land in the possession of the plaintiff, which is lying beyond the admitted existing physical boundary of the schedule property. Therefore, -3- R.S.A.No.579/2009 the trial court observed that the evidence of PW-1 is supported by the evidence of PW-3 who is none other than the husband. According to PW-3 (her husband), the mud walls existing at the time of purchase of the property was more than 35 years old to his personal knowledge. The trial court observed that there is no allegation by the plaintiff that the mud walls were not there, when the re-survey was conducted. The trial court held that the mud walls were in existence as on the date of suit, which can be seen from Ext.C1 report. The trial court also held that there are absolutely no materials available to support the case of the plaintiff that the eastern mud wall was destroyed by the defendant during the pendency of the suit. The trial court also took into consideration the admission of the plaintiff that the excess land located by the Commissioner on the basis of survey records is beyond the mud walls, which she admits as periphery of her property covered by title deeds. The trial court concluded that the plaintiff has not succeeded in establishing the identity of -4- R.S.A.No.579/2009 the suit property and naturally its boundaries on the basis of title and therefore the plaintiff is not entitled to get a decree for demarcation and fixation of boundaries. Consequently, other reliefs are not granted. The findings of the trial court was confirmed in appeal. The contentions raised before the trial court were re-agitated before the Appellate Court. The Appellate Court also considered all the contentions and held that no grounds are made out by the plaintiff/appellant for interference. The Appellate Court examined the evidence on record and rested its decision on the very same conclusion. 3. I have examined the contentions of the appellant. The trial court and the Appellate Court elaborately considered the evidence on record and held on facts that the plaintiff is not entitled to get any relief as prayed for in the suit. The reasons for non-suiting the plaintiff is solely based on facts, circumstances and evidence. I do not find that sufficient grounds are made out by the appellant to invoke this Court's jurisdiction under Section -5- R.S.A.No.579/2009 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and it is accordingly dismissed in limine. HARUN-UL-RASHID, Judge. kcv.