IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 SA.No. 494 of 1996() -------------- AS.289/1986 OF ADDL. DISTRICT COURT, KOTTAYAM OS.30/1983 OF MUNSIFF COURT, VAIKOM ............... APPELLANT – APPELLANT – PLAINTIFF : ------------------------------------------------------------ VARKEY THOMAS, VADAKKETHAZHATHU VEETTIL, KOTHAVARAKARA, THALAYAZHAM VILLAGE. BY ADVS. SRI. P.G. PARAMESWARA PANICKER, SENIOR ADVOCATE SRI. P. GOPAL RESPONDENTS - RESPONDENTS – DEFENDANTS : ------------------------------------------------------------------------ 1. THARYAN VARKEY, THAZHATHU VEETTIL, KOTHAVARA KARA, THALAYAZHAM VILLAGE. 2. THARYAN JOSEPH OF DO. DO. 3. THARYAN ULAHANNAN OF DO. DO. BY SRI.VARGHESE C.KURIAKOSE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/01/2011, THE COURT ON 09/02/2011 DELIVERED THE FOLLOWING: Mn P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 494 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of February, 2011. JUDGMENT The plaintiff, who was non-suited by both the courts below is the appellant. 2. The plaintiff laid a suit for declaration and damages. According to him, the plaint schedule properties were obtained by him as per Ext.B2 partition deed. The property of the plaintiff is comprised in Sy. No.90/1 and that of the defendants in Sy. No.89/1. It originally belonged to the family of Varkey Tharian, father of the defendants and his brother Yohannan Kathanar. As per Ext.B2 partition deed 3 acres 10 cents including the plaint schedule property comprised in Sy. No.89/1 was partitioned between Varkey Tharian and Yohannan Kathanar. Subsequently, by change of hands, the property came into the possession of the plaintiff. S.A.494/1996. 2 3. The plaintiff would allege that there was a varamba demarcating the plaint schedule property from the defendants' property. The defendants are alleged to have widened the varamba and planted coconut saplings thereon. There was some dispute regarding the mending of a water channel. The plaintiff had to take aid of police. Soon thereafter, the defendants trespassed into the plaint schedule property and dug out soil from the plaint schedule property for a depth of 1 ½ feet and a width of 6 links. On the basis of these allegations the suit was laid. 4. The defendants resisted the suit. According to them, as per Ext.B2 partition deed 60 cents comprised in Sy. No.90/1 A and B were set apart to the share of Yohannan Kathanar and an extent of property measuring 6 links width along the eastern and southern sides of the property comprised in Sy.No.90/1 was set apart to the share of Yohannan Kathanar for the purpose of mending the madu. By virtue of the partition deed, Yohannan Kathanar got S.A.494/1996. 3 property measuring 6 links in width and 60 links in length along the eastern side and 6 links in width and 238 links in length along the southern side totally measuring 1788 sq.links. The property comprised in Sy. No.89/1 was set apart to the share of the father of the defendants and their mother Aley. The property so set apart had devolved on the defendants. In a subsequent partition in the family of the defendants, the property comprised in Sy.No.89/1 was set apart to defendants 2 and 3. Eversince then, they were in possession of the same. The alleged trespass was denied. According to the defendants, they are not in possession of any property, which belonged to the plaintiff. 5. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 6 and document marked as Ext.A1 from the side of the plaintiff. The defendants had D.Ws.1 and 2 examined and marked Exts.B1 to B11. Exts.C1 to C4 are the commission reports and plans. S.A.494/1996. 4 6. The trial court on an evaluation of the evidence found that the plaintiff is entitled to claim right and title over 1.788 sq.links comprised in Sy.No.89/1. The water channel now in dispute and lying on the southern side of AJ line in Ext.C4 plan belonged to the defendants and the plaintiff had no manner of rights over the same. The plaintiff was given a decree in respect of the thodu lying on the east of IJ line measuring about 300 sq.links. His claim for the water channel lying on the southern side of his property was denied. 7. The plaintiff took up the matter in appeal as A.S. 289 of 1986. The appellate court on an independent evaluation of the evidence concurred with the trial court and dismissed the appeal. Hence the Second Appeal. 8. Notice is seen issued on the following questions of law: S.A.494/1996. 5 “I. Whether the interpretation placed by the courts below on the documents of title, Exts.B2, A1 and B9 is correct and sustainable. II. Were not the courts below bound to give more importance to the category of land, that is garden land or to the paddy land rather than survey numbers for identifying and locating properties on the basis f the documents of title. III. Whether the assumption of the courts below that the location of the thodu was subsequently changed by the plaintiff justified in the absence of pleading and proof of such a case by the defendants and whether in the absence of pleading and proof the contention could have been allowed to be raised at the time of arguments and whether such assumption sustainable it having been made without adverting to the material fact that the thodu on the southern side of AJ line in Ext.C4 plan is in continuation of the thodu coming from the east? IV. Even assuming that the plaintiff is in possession of a portion of Sy. No.89/1 which was lying as garden land in Sy.No.90/, is it a valid reason for negativing the claim of the plaintiff as S.A.494/1996. 6 to the title and possession of the thodu in Sy.No.89/1 which is specifically allotted to the plaintiff's predecessor in interest under Ext.B2 partition and which the plaintiff's father and the plaintiff subsequently obtained under Exts,A1 and B9. V. Whether the decree and judgments of the court below are sustainable they having based on relevant aspects and surmises? VI. Whether the non-advertence to the oral evidence adduced by the plaintiff justified? VII. Were not the court below bound to award the damages claimed by the plaintiff or at any rate reasonable damages?” 9. Learned counsel appearing for the appellant pointed out that the courts below have erred in law and on facts in holding that the plaintiff is not entitled to the thodu lying on the southern side of his property. It is pointed out that the commissioner has not drawn a plan in accordance with deed and that has created the problem. Referring to the evidence of the Surveyor, it was pointed out that offset measurements have not been indicated and that shows that S.A.494/1996. 7 the plan drawn and the report filed are incorrect. The courts below have erred, according to learned counsel, in coming to the conclusion that the property lying on the southern side of AJ line in Ext.C4 belongs to the defendants. 10. Learned counsel for the respondents on the other hand pointed out that a perusal of Ext.C4 plan is sufficient to show that the claim of the plaintiff is false. Learned counsel stressed that both the courts below have concurrently found against the plaintiff and being a finding of fact, no interference is called for in Second Appeal as no substantial question of law arises for consideration. 11. In order to understand the controversy, it will be better to refer to Ext.C4 plan. As noticed by both the courts below, the property belonging to the plaintiff is comprised in Sy. No.90/1 and that of the defendants in Sy. No.89/1. The green shaded portion lying on the eastern and southern sides of the property in Sy. No.90/1 forms subject matter of dispute in this suit. The plaintiff would say that the thodu belongs to him, while the defendants would say S.A.494/1996. 8 that it belongs to them. From Ext.C4 plan it can be seen that the water channel in dispute lies 8 links away from point A, which is the southern boundary of the property obtained by the plaintiff and his predecessor as per Ext.B2 partition deed. From the point A, the water channel runs towards east, takes a slight bend and then goes further east and at the south-eastern corner of the plaint schedule property, it takes a turn towards north and about 60 links thereafter it turns again to the east. Both the courts below have found that the water channel lying on the eastern side of IJ line in Ext.C4 is comprised in the title deed of the plaintiff. 12. The defendants did not dispute that at the time of Ext.B2 partition deed a portion of the property comprised in Sy.No.89/1 was set apart to Yohannan Kathanar for the purpose of mending the madu. Their contention is that subsequently the plaintiff and his father converted a portion of the thodu and annexed that portion to S.A.494/1996. 9 his property comprised in Sy. No. 90/1 and they have no further claim on the water channel situated on the southern side. 13. The report of the commissioner, namely Ext.C3, shows that the plaintiff has got 2.750 sq.links immediately on the southern side of AJ line. The courts below have found that going by the title deeds of the plaintiff, he could have only 1.788 sq. links of property on the southern side of AJ line. As such the finding of the courts below was that the plaintiff as on the date of the suit was in possession of excess land than what was entitled to as per his document of title. 14. The commissioner has identified the property of the plaintiff as ABCDEFGHIJ in Ext.C4 plan. The plan was prepared with the help of the Taluk Surveyor, who was examined as P.W.6. As already noticed, the disputed property lies on the southern side of AJ line. The property immediately on the northern side of the green shaded portion is admittedly in the possession of the plaintiff. It was S.A.494/1996. 10 after taking into consideration that portion, which is shown in red colour that the courts below have come to the conclusion that as on the date of suit the plaintiff was in possession of excess land. It is significant to notice that there was no attempt to establish that the commission report and plan are wrong even though objections were filed by the plaintiff. Both the courts below have found that nothing was brought out in the examination of the commissioner to show that Exts.C3 and C4 are not acceptable. The lower appellate court has taken note of the finding of the trial court that the absence of taking aid of offset measurement had done no injustice to the plaintiff. 15. A bare look at Ext.C3 plan and Ext.C4 report will show that the claim of the plaintiff is unfounded. If as a matter of fact, the green shaded portion belonged to the plaintiff, the lie of the channel would not have been in the manner as shown in Ext.C4. That is further fortified by the continuation of the thodu towards the eastern side. Moreover, both the courts below on the basis of the S.A.494/1996. 11 commission report and plan have found that without the green shaded portion, which is the water channel as is now existing at the place, the plaintiff is in possession of excess land. It is therefore clear that the green shaded portion lying on the southern side of red shaded portion of the plaintiff's property comprised in Sy. No.90/1 does not belong to the plaintiff. However, it is necessary to emphasis that the water channel has to be retained as such. The result is that there is nothing to show that the courts below have erred in any manner in coming to the conclusion that the green shaded portion lying on the southern side of the plaintiff's property does not belong to him. None of the grounds urged in the memorandum of appeal support the plea of the plaintiff. As rightly pointed out by the learned counsel for the respondents, the findings of the courts below are based on evidence on record. There is nothing to show that the findings were perverse or unwarranted, which call for interference at the second appellate stage. Apart from the above act, no substantial S.A.494/1996. 12 question of law arises for consideration. The result is that this Second Appeal is without merits and it is liable to be dismissed. I do so with costs to the respondents. P. BHAVADASAN, JUDGE sb.