IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 RSA.No. 515 of 2010(C) --------------------------------- [RFA.NO.123/2003 OF II ADDL. DISTRICT COURT, KOLLAM, OS.NO.63/1992 OF PRINCIPAL SUB COURT,KOLLAM] .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- PRABHAVATHI , AGED 53 YEARS, D/O.KUNJAMMA, KOCHUKUNNEL VEEDU, PANMANA MURI, PANMANA VILLAGE, CHAVARA. BY ADV. SRI.ALEX N.MATHEW (KOLLAM). RESPONDENTS: ------------------------ 1. INDIAN RARE EARTHS LTD., CHAVARA, REPRESENTED BY ITS MANAGING DIRECTOR. 2. MANAGING DIRECTOR, INDIAN RARE EARTHS LTD., CHAVARA. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- R.S.A No.515 of 2010 -------------------------- Dated this the 9th June, 2010 J U D G M E N T Plaintiff, whose suit was dismissed by the court below and whose first appeal was dismissed by the lower appellate court is the appellant in this Second Appeal. 2. According to the plaintiff, she obtained plaint A schedule property as per Ext.A1 document No.1991 dated 7.5.1974 and Ext.A2 release deed No.3359 dated 26.9.1975. Ever since then she had been in absolute possession and enjoyment of the same. It is averred that the property belonged to the father of the plaintiff and consequent on the death of his father it devolved upon her mother, brothers and sisters. Thereafter, the mother, brothers and sisters of the plaintiff released their right and title over the plaint A schedule property in favour of the plaintiff. It is averred in the plaint that 6 ½ cents of property on the east west on the northern side of the plaint B schedule property has been given to one person as per Ext.A3 document . It is claimed that remaining 44 ½ cents continued to remain in the absolute possession and enjoyment of the plaintiff. According to the plaintiff, 11.38 R.S.A No.515 of 2010 2 ares of property including 6 ½ cents owned by her were acquired by the defendant company. It is averred that since the property given as kudikidappu was acquired, she was also made a party to the acquisition proceedings. It is stated that plaint B schedule is an extent of 22.825 cents of property excluding the property acquired belongs to the plaintiff. It is also averred that plaint schedule property is situated on the immediate northern side of the property owned by the defendants. The plaint B schedule property is situated between the company's property and the acquired property. 3. Defendant company has reduced the plaint B schedule property into their possession. Since the plaint B schedule property is in the absolute possession and enjoyment of the defendant, the suit was laid for declaration of possession and obtaining plaint B schedule property. 4. Defendants resisted the suit. They pointed out that plaint schedule description is fraudulent and false. On that ground alone, the suit is liable to be dismissed. According to them 11.38 ares of property comprised in R.S.A No.515 of 2010 3 Sy.No..332 of Alappad Village had been acquired for mining purposes by the defendant company and the company has taken possession of the said property after following the legal formalities. Along with that the property on the northern side of the property owned by the company was acquired by the defendant Company. Company denied that the property acquired by the company is not lying on the northern side of the 51 cents as alleged in the plaint. It is legally pointed out that the allegation in the plaint that plaintiff has got property in between the property owned and possessed and acquired by the company is false and incorrect. On the basis of these contentions, they prayed for dismissal of the suit. 5. The trial court has raised necessary issues for consideration. The evidence consists of the testimony of PW 1 and PW2 and Exts. A1 to A10 were marked from the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 and B2 were marked from the side of the defendants. Exts.C1 and C2 are the commission report and plan. CW1 was examined as court witness. 6. On an appreciation of evidence, the trial court R.S.A No.515 of 2010 4 came to the conclusion that plaint description is false and misleading and there is no such property in existence as described in the plaint as B schedule. Accordingly, the suit was dismissed. 7. The matter was carried in appeal. The appellate court independently evaluated the evidence and came to the same conclusion as that of the trial court and dismissed the appeal. It is against those concurrent findings, the present appeal has been filed. 8. Learned counsel appearing for the appellant pointed out that the lower appellate court has not considered the amendment application filed by the plaintiff. That has caused serious prejudice to him. Amendment application was filed seeking to amend the schedule of the property and court below ought to have considered the same before the disposal of the appeal. It is also contended that objection to the commission report had been filed and it was not considered. That has caused prejudice to the appellant. It is further pointed out that even though steps were taken to examine the surveyor sufficient opportunity was not given to do so. Accordingly R.S.A No.515 of 2010 5 it is contended that the courts below were not justified in dismissing the suit. 9. Though the arguments may look attractive, it is without any substance whatsoever. It may be recollected that plaint B schedule property is shown situate between the property owned by the plaintiff and property acquired by the company. When the commissioner filed his report along with survey plan, it was very clear that the description of the plaint schedule was incorrect. Plaintiff though filed a detailed objection to the commission report he was not able to substantiate those contentions. 10. It is pointed out that at the appellate stage an amendment application was moved. It shows that property lies on the extreme northern side and that the court below had not considered the same. 11. There is no reference by the lower court regarding the said application. Apart from that as soon as the commission report was filed in the trial court, plaintiff ought to have known that plaint B description was erroneous and there was no such property. If she had any grievance regarding the error in the description shown in R.S.A No.515 of 2010 6 the plaint she ought to have taken steps in this regard. Instead she filed objection and was not willing to accept it. She sat on the farce. The judgment was against her. Thereafter, she prayed to the court that she may be allowed to amend the plaint. It look ordered especially when he has serious objections to the commission report. Probably the court below has not considered the amended application due to this fact. 12. Learned counsel appearing for the appellant submits that no opportunity was given to examine the surveyor. Even going by the arguments made by the learned counsel appearing for the appellant after the evidence was closed there were several postings for the case. If the appellant had a case, she had been denied a chance to examine the surveyor. She could take such steps as are necessary to have the evidence reopened. It does not appear to be proper for the appellant now to say that sufficient opportunity was not given to examine the surveyor. 13. Both the court below found that plaint B schedule does not exist. In fact in the written statement R.S.A No.515 of 2010 7 filed by the defendant, it is clearly pointed out that there is no such property in existence and description in plaint B schedule is misleading and fraudulent. Commissioner had filed his report and survey plan. True. plaintiff did file objection to the commission report. Going by the Commissioner's report, it was seen that plaint B schedule property is not situated between the property acquired by the company and property owned by the company. Commissioner has reported that actually the property of the plaintiff is situated on the extreme northern side. Findings of the court below are essentially approved on the question of facts. 14. Learned counsel appearing for the appellant pointed out that they may not be precluded from filing proper suit. The plaintiff can file a fresh suit if he is entitled in law to do so. With the above observations, this appeal is dismissed. P.BHAVADASAN, JUDGE ma R.S.A No.515 of 2010 8 R.S.A No.515 of 2010 9