IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 SA.No. 198 of 1999(F) ------------------------------ [AS.NO.648/1994 OF SUB COURT,NEYYATTINKARA, OS.NO.844/1987 OF PRINCIPAL MUNSIFF'S COURT,NEYYATTINKARA] .................... APPELLANT/IST RESPONDENT/PLAINTIFF: -------------------------------------------------------------- VELAYUDHAN SAHADEVAN, VARIKKAMAMVILA ROADARIKU PUTHEN VEEDU, VALLUKONAM, NADUVOORKOLLA DESOM, KOLLAYIL VILLAGE, NEYYATTINKARA TALUK. *ADDITIONAL APPELLANTS 2 TO 5 IMPLEADED: 2. AMMUKUTTY, W/O. DECEASED VELAYUDHAN SAHADEVAN, VARIKKAMAMVILA ROADARIKU PUTHEN VEEDU, VALLUKONAM, NADUVOORKOLLA DESOM, KOLLAYIL VILLAGE, NEYYATTINKARA TALUK. 3. MANIKANDAN, S/O. LATE VELAYUDHAN SAHADEVAN, RESIDING AT DO. DO. 4. ANIL KUMAR, DO. DO. 5. SUBHAKUMARI, D/O. LATE VELAYUDHAN SAHADEVAN, RESIDING AT DO. DO. *ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LRS. OF THE DECEASED APPELLANT AS PER ORDER DT. 14/06/02 IN C.M.P. NO. 535/02. BY ADVS. SRI.P.R.VENKETESH, SRI.P.R.RAJA S.A. NO. 198/1999: RESPONDENTS/APPELLANTS & RESPONDENTS 2 AND 3/DEFENDANTS 1 TO 5: ------------------------------------------------------------------------------------------------------------------ 1. LOISE, W/O. YOHANNAN, VARIKKAMAMVILA ROADARIKU PUTHEN VEEDU, VALLUKONAM, NADUVOORKOLLA DESOM, KOLLAYIL VILLAGE, NEYYATTINKARA TALUK (DIED). 2. YOHANNAN RAJAYYAN, OF DO. DO. 3. RAJU ALIAS RABI, OF DO. DO. 4. YOHANNAN GEORGE, VARIKKAMAMVILA ROADARIKATHU PUTHEN VEEDU, OF DO. DO. 5. DAS ALIAS YOHANNAN KRIPAL, DO. DO. R3 BY ADV. SRI.G.S.REGHUNATH. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 198 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2011. JUDGMENT The plaintiff in O.S. 844 of 1987, who was non-suited by the lower appellate court is the appellant. 2. The plaint consists of two items of property, namely, item No.1 having an extent of 18 ½ cents comprised in Sy. No.128/2A and item No.2 having an extent of 2 ½ cents in Sy. No. 128/2A. On the allegation that the defendants are trying to trespass into the property, initially the suit for declaration of title and other reliefs were sought for. Later, after the commission report was obtained, it was amended for recovery of possession and for mandatory injunction also. 3. The defendants resisted the suit by pointing out that even though the document of title of the plaintiff shows that he is entitled to 21 cents of property, he did not get that much extent of property and actually he is in possession of 18 and odd cents only. It was also pointed S.A.198/1999. 2 out that there was level difference between the two properties and also that there was a mud wall separating the two properties. The latrine found by the commissioner and noticed in his report is more than 20 years old and the basement noticed by the commissioner is also very old. These facts, according to the defendants, would show that the plaintiff had not exercised any act of possession over the disputed property. On the basis of these contentions, they prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of Exts. A1to A6 from the side of the plaintiff. The defendants examined D.Ws.1 to 3 and marked Exts. B1 and B2. Exts.C1 and C1(a) are the the commission report and plan. Exts. X1, X2 and X3 are third party exhibits. 5. The trial court mainly based on the alleged division of the property made by the commissioner as per Ext.C1(a) plan granted a decree in favour of the plaintiff. The disappointed defendants took up the matter in appeal S.A.198/1999. 3 as A.S. 648 of 1994. Before the appellate court the defendants had applied for commission for reporting certain other aspects by the same commissioner and his report and plan were marked as Ext.C2 and C2(a). The lower appellate court on the basis of the level difference of the properties, the age of the construction found in the disputed portion, the presence of the boundary wall and also a way on the southern side of the property of the plaintiff, came to the conclusion that the plaintiff did not, as contended by the defendants, obtained the entire 21 cents covered by his document of title. Accordingly, the appeal was allowed and the suit stood dismissed. That brings the plaintiff before this court. 6. Notice is seen issued on the following questions of law: “1) Was not the lower appellate court in error in passing a decree based on Exts.C1 and C1 (a) commissioner's report and plan, after entering a finding that the commissioner has not correctly identified the plaint schedule property? S.A.198/1999. 4 2) In a suit on title when the lower appellate court finds that the commissioner's report and plan are not acceptable and that the report and plan were accepted and relied on by the trial court, is not the court bound to give an opportunity to the plaintiff to obtain a fresh plan and report? 3) Did not the lower appellate court err in entering a finding that the commissioner has not correctly identified the properties and then relying on his report to pass a decree in the case?” 7. It is contended on behalf of the appellants that if the appellate court was of the view that the commission report and plan were not acceptable, the course open to the lower appellate court was to remand the matter to the trial court for getting a proper report and plan on the basis of the respective documents of title. Based on the commission report, which is not acceptable, the lower appellate court ought not to have rejected reliefs to the plaintiff. The trial court had infact found that the plaintiff is entitled to S.A.198/1999. 5 property shown as ABCDGHI and there is no reason to interfere with the said finding. 8. Per contra, learned counsel for the respondents pointed out that what the commissioner had done at the initial stage was out of the total extent of 40.90 cents, the commissioner divided the property into two and observed that half share would belong to the plaintiff and the other half to the defendants. The trial court had omitted to note the level difference between the two properties so also the age of the constructions found in the disputed portion. It was after noticing the above facts, the lower appellate court allowed the appeal and dismissed the suit. The findings of the lower appellate court, according to learned counsel, are based on an appreciation of the evidence in the case and are pure questions of fact. No substantial question of law arises for consideration. 9. Learned counsel for the respondents seems to be well justified in his submission. A perusal of the judgment of the trial court shows that the trial court mainly S.A.198/1999. 6 proceeded on the basis of Ext.C1(a) sketch, wherein the commissioner has divided the total extent into two halves. Northern half is shown as ABDGHI and the southern half as DGFE owned by the plaintiff and the defendants respectively. The trial court did not pay much attention to the contention raised by the defendants that there is considerable level difference in the line shown as HC and there is also well laid boundary thereon. It was based on those facts that the defendants have contended that the plaintiffs, though their title deed took in 21 cents, did not actually get possession of the same. 10. It is true that going by the documents of title of the plaintiff, namely, Exts.A4 and A5, they are entitled to 21 cents. But the question is whether they actually got 21 cents covered by the said documents. 11. The lower appellate court on the other hand found that on the basis of the additional commission report and plan and also on the basis of the earlier report, namely Exts.C1 and C1(a) plan that there is level difference at the S.A.198/1999. 7 point HC and refers to a well laid boundary, which would indicate that the plaintiff never got possession of the property on the southern side of HC line. The lower appellate court has also occasion to notice that the latrine found in the disputed portion shown in the commission report namely CDGH was more than 20 years old. The claim of the plaintiff that these structures were put up after the order of injunction was passed in the suit, according to the lower appellate court, could not be accepted. 12. Here one may notice that the suit was laid on 7.11.1987 and in the written statement 11.12.1987 there was a specific contention that even though the document of title of the plaintiff shows 21 cents, they did not actually get that extent of land and they had only a lesser extent in their possession. The commissioner visited the property on 1.11.1989 and filed Exts.C1 report and C1(a) plan. It was only on 17.3.1990 that the amendment was sought for seeking recovery of possession also. The above factors have weighed much with the lower appellate court in coming to S.A.198/1999. 8 the conclusion that the case put forward by the defendants that the plaintiff did not obtain the entire extent covered by Exts.A4 and A5 is more probable and the case of the plaintiff that the defendants had trespassed into a portion of their property and reduced it the same into their possession cannot be true. The above finding is based on an appreciation of the evidence available in the case and does not suffer from any legal or factual errors and no interference is called for under Section 100 of the Code of Civil Procedure. No question of law, much less any substantial question of law, arises for consideration in this Second Appeal. This appeal is without any merit and it dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.