IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 RSA.No. 1149 of 2008() ---------------------- AS.63/2001 of ADDL.SUB COURT, ALAPPUZHA OS.258/1993 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. BHARGAVI AMMA, D/O.KUTTY AMMA, AGED 86 YEARS, KORAKATHUVELI, SOUTH ARYAD MURI, AVALOOKUNNU WARD, ARYAD SOUTH VILLAGE. 2. NAIR SERVICE SOCIETY KARAYOGAM NO.2730 KOTTAMKULANGARA, AVALOOKUNNU P.O., REPRESENTED BY ITS SECRETARY, N.BALAKRISHNA PILLAI, CHITHIRA, THODANKULANGARA, ARYAD SOUTH VILLAGE. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW RESPONDENT(S): RESPONDENTS/PLAINTIFF ------------------------------------ K.K.VASUDEVAN, S/O.KOCHU PILLAI, AGED 66 YEARS, KINYUPARAMBIL, THONDAKULANGARA WARD, SOUTH ARYAD MURI, ARYAD SOUTH VILLAGE. ADV. SRIR.AZAD BABU FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A. NO. 2536 OF 2008 IN R.S.A. NO. 1149 OF 2008 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 19.06.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 1149 of 2008 ---------------------------------------- Dated this the 19st day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 63/2001 on the file of the Additional Subordinate Judge's Court Alappuzha which arises from the judgment and decree in O.S. 258/1993 on the file of the Munsiff Court, Alappuzha. The defendants in the suit are the appellants herein. It is the plaintiff's case that the plaint schedule item No.1 property belongs to him and item No. 2 belonging to the defendants which is lying on the western side of his property. Plaint schedule item No. 1 and item No.2 properties are lying contiguously without any visible boundaries. According to the plaintiff the defendants are making unjust claim over the western portion of item No.1 property and had removed some of the fixtures he had put up in his property for the purpose of coir factory. . Therefore the suit was filed by the respondent herein as plaintiff for fixation of boundary and consequential injunction. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. In the written statement the defendants contended interalia that the extent of item No.2 property shown in the plaint is not correct, that the said property was set apart as plaint B schedule in the Ext.B1 partition deed (Partition deed No. 3016/1119) that after setting apart portions as kudikidappu and covered by gift deed the remaining portion R.S.A. 1149 of 2008 -2- is in the exclusive possession and enjoyment of the 1st defendant. The defendants contended that they had not destroyed or removed the fixtures in the plaintiff's property and they have no intention to trespass into the plaintiff's property. In the alternative it was contended by them that , if the trial court found that any portions of the plaintiff's property was in the possession of the defendants, they had perfected title over that portion by way of adverse possession. 3. The evidence in this case consists of PW1 and PW2 , DW1 to DW4, Exts. A1 to A3 , B1 to B9, C1 to C3, X1 and X1(a). 4. Plaint item No.1 property is the property of the plaintiff. Ext.A1 is the title deed of the plaint schedule property. Ext.A3 is the prior title deed of the plaint schedule property. Ext.A2 is the partition deed by which the plaint item No.1 property has been set apart as D schedule in the partition deed. The title of the plaintiff's property is not disputed. The only contention raised by the defendants is that the extent of the property shown in the plaint is not correct and their property is the part of 43 Cents of property which was set apart as B schedule by way of Ext.B1 partition deed. Ext.A2 is the certified copy of Ext.B1 partition deed. 5. It is admitted that as per Ext.B1partition deed a total extent of 1 acre 89 Cents were partitioned and divided into 6 shares which are numbered as A to F. The share set apart as A and E were lying in Survey R.S.A. 1149 of 2008 -3- No.81/1 whereas the other properties are lying in Survey No.81/6. Now the dispute is regarding the property comprised in Survey No. 81/6 it is also admitted that the B schedule property was set apart on the southern extremity in north-south direction whereas the properties scheduled as CD and F were set apart on the eastern side of the B schedule property in east-west direction, that of which the 'F' schedule property is situated on the southern extremity and on its northern side lies the 'C' schedule property and on its further north lies the D schedule property. Now the D schedule is the plaint item No.1 herein and the 43 Cents which is the B schedule in Ext.B1 lies on the immediate western side of plaint item No.1 property,. 6. The plaintiff while examined as PW1 has stated that there is no visible boundaries to demarcate the plaint item No. 1 property and item No.2 property, that he purchased the property in the year 1980 and for 5 to 6 years there was a fencing on the western side of his property to demarcate the plaint item1 and 2 properties. The defendants on the other hand submitted that there was clearcut boundaries to demarcate the plaint item No.1 and 2 properties and there were boundary trees standing in the exact boundary. The trial court after analysing the oral evidence of both sides held that there was no fixtures or other visible marks to separate the plaint item No.1 and item No. 2 properties. 7. The trial court appointed a Commissioner to measure out the R.S.A. 1149 of 2008 -4- plaint schedule properties as per the title deeds and survey plans and to demarcate the western boundary of the plaint item No.1 property. He had clearly stated in his report that first of all he fixed the boundary of the 1 acre 38 cents of property comprised in Survey No.81/6 which were partitioned as per Ext.B1 partition deed. Then he had set apart the F schedule and C schedule property as per Ext.B1 partition deed and thereafter the B schedule property He had also clearly demarcated the properties sold by subsequent transfers from the B schedule property and clearly noted the property given as kudikidappu and extent of property that has been relinquished for the pathway After that he has fixed the boundary separating plaint item No.1 and item No.2 property. He had given a detailed description about measurements carried out and the procedure adopted for fixing the boundary. 8. The defendants filed I.A. No. 620/1995 before the trial court for setting aside the commission report by raising certain objections. 9. The trial court examined the objections raised by the defendants one by one The defendants had contended that the western boundary of the plaint item No.1 property and the C schedule property as per Ext.B1 partition deed which was lying on the immediate southern side of item No.1 property and that of the property situated on the immediate northern side of item No. 1 property were lying in a straight line. They also contended that on the western boundary of the property situated on the northern side of item No.1 there lies a fencing on the western side of the R.S.A. 1149 of 2008 -5- property situated on the southern side of item No. 1 there is a boundary wall, that the western boundary of the plaint item No.1 property was a straight line which connects this boundary wall and the fencing ,that the boundary fixed by the Commissioner shows that the western boundary of item No.2 property was projecting westwards and was situating further west of the boundary wall and the fencing stated above. After perusing the exhibits the trial court concluded that the Commissioner has correctly fixed the actual boundary of the plaint Schedule item No.1 property and the contention raised by the defendants to the effect that the plaintiff's title over the portion which was projected further westwards from the above boundary wall and fencing was lost by way of adverse possession of the defendants was negatived. The other contentions raised by the defendants were also considered by the trial court and were negatived for valid reasons The trial court concluded that the defendants had failed to prove adverse possession. 10. The lower appellate court also discussed the contentions raised by the defendants in appeal The lower appellate court also found that the fixation of boundary by the Commissioner on the basis of survey records and title deeds is correct and therefore the finding of the trial court is not liable to be interfered with. The lower appellate court also held that the plea of the defendants to set aside Ext.C1 and C3 was correctly repelled by the trial court. The lower appellate court after analysing the entire evidence on record, agreed with the finding of the trial R.S.A. 1149 of 2008 -6- court and permitted the plaintiff to put up boundary on the western side of the plaint item No. 1 to separate it from item No.2 as per Ext.C1. I am of the view that the contentions raised by the defendants/appellants are negatived by the courts below for valid reasons. No grounds are made out by the defendants/appellants to take a different view from the views taken by the courts below. Moreover the findings arrived at by the courts below are solely on the basis of facts, evidence and circumstances of the case, which cannot be interfered with by invoking Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal .This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 1149 of 2008 ---------------------------- JUDGMENT 19th June , 2009