IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 SA.No. 726 of 2000(C) -------------------------------- AS.115/1994 of ADDL. DISTRICT COURT, PARAVUR OS.152/1987 of MUNSIFF COURT,ALUVA .................... APPELLANT(S): APPELLANTS-ADDL.PLAINTIFFS 2,3,&4 ------------------------- 1. ANTONY, S/O. LATE SRI.DEVASSY AGED 69 YEARS, MAIPAN HOUSE, KARUKUTTY, ANGAMALY, PADUVAPURAM P.O. 2. JOSE S/O. LATE DEVASSY, AGED 66 YEARS, DO. DO. 3. DEVASSYKUTTY, S/O. LATE SRI.DEVASSY, AGED 62 YEARS, DO. DO. BY ADV. SRI.BABU KARUKAPADATH SRI.M.A.ABDUL HAKHIM RESPONDENT(S): RESPONDENT/RESPONDENT-DEFENDANT ------------------------- 1. MARY W/O. LATE SRI.PAILY AGED ABOUT 56 YEARS, PAINADATH HOUSE, KARUKUTTY KARA, KOTHAKULANGARA NORTH VILLAGE, PADUVAPURAM P.O. 2. JEGY S/O. LATE PAILY , AGED ABOUT 33 YEARS, DO. DO. 3. JAMES, S/O. LATE SRI.PAILY AGED ABOUT 30 YEARS, DO. DO. 4. LINCY, D/O. LATE SRI.PALY AGED ABOUT 30 YEARS, DO. DO. 5. GIJO, S/O. LATE SRI.PAILY AGED 28 YEARS, DO. DO. 6. LITTY D/O. LAGE SRI.PAILY AGED ABOUT 25 YEARS OF DO. DO. S.A. NO.726/2000 7. LIGI, D/O. LATE SRI. PAILY AGED ABOUT 21 YEARS, DO. DO. 8. LIBI D/O. LATE SRI.PAILY, AGED ABOUT 11 YEARS, DO. DO. (RESPONDENT 8 IS MINOR AND SHE IS REP.BY HER MOTHER AND GUARDIAN IST RESPONDENT). R1 TO R6 BY ADVS. SRI.K.SREEKUMAR SRI.ABHILASH BHASKAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------- S.A No. 726 of 2000 -------------------------- Dated this the 18th June, 2010 J U D G M E N T The plaintiffs 2 to 4 in O.S.152/87 before the Munsiff's Court, Aluva are the appellants herein. 2. The suit was one for declaration of title and recovery of possession. 3. The plaintiff is the owner of 22 3/4 cents of land in Sy.No.1274/3-A2 of Kothakulangara North Village which is shown as plaint A schedule. According to the plaintiff, the western boundary is puramboke canal. The allegation is that defendants had trespassed into 14 cents puramboke land by the side of the canal. Defendants 1 and 2 and another person filed O.S No.377/79 accusing the plaintiff and his children stating that they had caused damages to the bund. Plaintiff had instituted O.S 302 /80 against the 2nd defendant and 2 others to keep the aforesaid 14 cents of purambokeland as part of the canal. O.S 377/79 was decreed and other suit was dismissed. The appeal filed by the plaintiff in the earlier suit was also dismissed. The complaint is that the defendants again began to trespass into the property on the western S.A No. 726 of 2000 2 side. They now reduced the B schedule property to their possession as they have no right to do so. Seeking declaration of title and possession, the suit was laid. 4. The suit was resisted by the defendants. It is pointed out that the suit is barred by res judicata and that according to him the plaint description is incorrect. The property lying on the western side of A schedule property is puramboke land and in the possession of the 2nd defendant. The canal made mention of in the plaint is situate on the western side of the plaint schedule property.. Second defendant's property lies without demarcation from the property of the plaintiff. 7 cents also which exclusively belongs to the 2nd defendant is shown as plaint B schedule. Plaintiff has no manner of right over the same. There were earlier suits between the parties and very same issue is involved in O.S 377/79, which was against the plaintiff. Therefore, defendants prayed for dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of Exts.A1 to A5 produced from the side of plaintiff and Exts.B1 to B4 from the side of defendants. Neither the defendants nor the S.A No. 726 of 2000 3 plaintiff adduced any oral evidence. Ext.C1, C1 (a), C2 and C2(a) are the the commission reports and plan. 6. The lower court on an appreciation of evidence of the case especially commission report i.e Ext.C2 (a) came to conclusion that the claim of trespass is incorrect and plaintiff had the extent of property that he is entitled to. Accordingly the suit was dismissed. 7. The matter was carried in appeal by the plaintiff as A.S No.115/94 before the District Court, North Paravorr. The lower appellate court after independently evaluating the evidence came to the same conclusion as that of the trial court and dismissed the appeal. Hence the Second Appeal. 8. The following substantial questions of law are formulated in this Second Appeal. "``(a) Whether the findings of Lower Courts that plaint "B" schedule property is not the property in the possession of the defendants and that the plaintiff is in possession of the entire plaint "A' schedule property are not perverse and unsupported by any evidence in the case. (b) Whether the courts below have not miscontrued and misunderstood the pleadings and the evidence in the case for holding that the land in the possession of the defendants is not S.A No. 726 of 2000 4 plaint "B" schedule property. (c) Whether Exts.B2 and B2 A the certified copy of the commission report Exts.C1 and C1A in the previous suit O.S No.176/96 of the Munsiff Court, Perumbavoor are relevant or evidence in the suit. (d) Whether the judgment dated 30.7.1994 in O.S 573/92 of the Sub Court, N.Parur does not conclusively prove that the defendants have no land in their possession in between plaint 'A'schedule property and the 14 cents of poramboke canal on the western side of plaint 'A' schedule property. (e) Whether the resurvey does not conclusively prove that there is no land for the defendants or others in their possession in between the plaint "A" schedule property and the 14 cents of poramboke canal on its western side." 9. Learned counsel appearing for the appellants mainly contended that it is not possible for the defendants to have any property on the western side of the property owned by the plaintiff and that this vital aspect has not been noticed by the courts below. According to the plaintiff, his property extends to the canal on the western side and any property occupied by the defendants must be the property belonging to him. S.A No. 726 of 2000 5 10. The case of the plaintiff is that he is the absolute owner of plaint A schedule having an extent of 22 3/4 cents and plaint B schedule having an extent of 7 cents lies on the western side of plaint A schedule property. The complaint was that the defendants had trespassed into 14 cents of land lying on the western side of plaint A schedule property. Second defendant claimed that he owns 7 cents by virtue of Ext.A1 sale deed of the year 1973. Both the courts below have noticed that the very same issue was the subject matter of O.S 377/79 which was instituted by the plaintiff against the defendants herein. That was disposed of by judgment which is produced as Ext.B3. The sketch and report filed show that the property on the western side is in the possession of defendants. These facts have been conceded by the plaintiff and after assigning a portion of the property to his children, again he laid the suit. 11. On the basis of the materials and the evidence on record, the courts below found that the allegation of trespass by the defendants into 7 cents is incorrect. Exts.C1, C2 (a) commission report and plan show that S.A No. 726 of 2000 6 plaintiff was in possession of 54.750 cents of property in Sy.No.1274/37, extent of property to which plaintiff is entitled even as per his own documents. Thus, the courts below found that the claim of trespass said to have been made by the defendants is false. Therefore, it can be seen that evidence clearly shows that plaintiff has been in possession of the property he is entitled to. No portion of the property owned by plaintiff has been trespassed by the defendants. The claim that the property of the plaintiff extends on the western side till the canal was found incorrect in the earlier suit. 12. Finding are essentially on facts arrived at on an appreciation of the evidence. No interference is called for by this Court since it is not shown that finding of the lower courts are either perverse or unwarranted by the evidence on record. Appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE ma S.A No. 726 of 2000 7 S.A No. 726 of 2000 8