IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 RSA.No. 1240 of 2009() ---------------------- AS.256/2002 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.214/1996 of I ADDL.MUNSIFF.COURT.,TRIVANDRUM .................... APPELLANT/APPELLANT/PLAINTIFF: ---------------------------------------- OMANA AMMA, D/O.THANKAMMA MUDUPINAKATTU VEEDU, THIRUVALLOM DESOM, THIRUVALLOM VILLAGE, THIRUVANANTHAPURAM TALUK. BY ADV. SRI.P.PARAMESWARAN NAIR RESPONDENT/RESPONDENT/DEFENDANT: -------------------------------------- CHANDRAMOHANAN, S/O.KRISHNAN, MELATHUMELE PUTHEN VEEDU, THIRUVALLA DESOM, THIRUVALLAKAVU DESOM, THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1240 of 2009E --------------------------------------- Dated this 07th day of December, 2009 JUDGMENT Appellant sued respondent for a decree for fixation of boundary and prohibitory injunction describing the property belonging to him in the plaint A schedule as 2 cents acquired as per Ext.A1, sale deed dated 19-10-1985. To prove his entitlement for the said 2 cents appellant also produced Exts.A2 and A3, receipts for payment of revenue. Plaint B schedule according to the plaintiff, is the 7 cents belonging to the respondent and lying adjascent to the plaint A schedule. Appellant wanted boundary between the two properties to be fixed and on the apprehension that respondent might trespass into the plaint A schedule, prayed for a decree for injunction also. Learned Munsiff found that as per the measurement taken by the Advocate Commissioner with the assistance of Taluk Surveyor, entitlement of appellant is only for 1.903 cents and accordingly granted fixation of boundary along XY line in Ext.C1(a). The prayer for injunction was disallowed since trial court found that appellant has no apprehension of trespass. First appellate court has confirmed finding of the trial court. Hence the second appeal raising by way of substantial questions of law as to whether trial court is correct in appreciating the commission report as a sole proof for determining right of the parties to hold the extent of land and whether the registered document is an R.S.A.No.1240 of 2009 2 authentic document in determining extent of the land?. It is contended by learned counsel that evidence on record would show that respondent is in possession of more extent than to which he is entitled and in that circumstance courts below are not justified in holding that entitlement of the appellant is only for 1.903 cents. 2. In fact a reading of the plaint would show that there is no dispute regarding title or possession between the appellant and the respondent and the appellant wanted only fixation of boundary in between the properties belonging to him and respondent. Advocate Commissioner has measured the property with the assistance of the Taluk Surveyor making use of the relevant documents and on measurement it has been found that the entitlement of the appellant, notwithstanding the extent of 2 cents stated in Ext.A1 is only 1.903 cents. It has come in evidence that appellant has another item of land adjoining the disputed property on its north and west and that entire property is lying as a single plot. Trial court observed that the shortage in extent found on measurement as against the extent stated in Ext.A1 is only negligible. Appellant has no case that respondent trespassed into any portion of her land. It is true that on measurement respondent was found to be holding 2.44 cents in excess of his entitlement. But that does not mean that respondent has trespassed into the property of appellant. On the available evidence trial court R.S.A.No.1240 of 2009 3 found that boundary could be fixed along the XY line in Ext.C1(a). I must also bear in mind that there is no prayer for declaration of title or recovery of possession made by the appellant. The suit is only for fixation of boundary without any dispute regarding title or possession and on the strength of Exts.C1 and C1(a) boundary has been fixed by the Court along XY line. 3. Another grievance of the appellant is that her prayer for prohibitory injunction was refused. Trial court held that appellant has not proved any cause of action justifying the grant of injunction. The findings are based on the evidence and in my view do not involve any substantial question of law requiring admission of the second appeal. The second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/