IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 RSA.NO. 64 OF 2009() ------------------------------- AS.168/2004 OF DISTRICT COURT, PALAKKAD OS.183/1991 OF MUNSIFF COURT, CHITTUR .................... APPELLANT-APPELLANT-PLAINTIFF: ------------------------------------------ KUTTIKRISHNAN, S/O. APPAVU, AGED 73 YEARS, CHERIYAKALLIYAMPARA, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD , BY P/A HOLDER GIRISH, S/O. KUTTIKRISHNA N,43 YEARS, RESIDING AT CHERIYAKALLIYAMPARA, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD. BY ADV. SRI.RAJESH SIVARAMANKUTTY SMT.A.PREMAKUMARI RESPONDENT(S) – RESPONDENTS - DEFENDANTS: --------------------------------------------------------------- 1. RAMAKRISHNAN, S/O. APPUKUTTAN, AGED 62 YEARS, CHERIYAKALLIYAMPARA, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD, 2. KALPAKAM, W/O. RAMAKRISHNAN, AGED 52 YEARS, CHERIYAKALLIYAMPARA, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD ADV. SRI.U.BALAGANGADHARAN FOR R2 SRI.S.M.UNNIKRISHNAN FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO. 64 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15th day of September, 2009 J U D G M E N T ---------------------- Advocate Shri U.Balagangadharan takes notice for respondent No.2. Heard both sides. 2. Appellant along with his mother, plaintiff No.1 who died pending suit instituted suit for recovery of possession of plaint B schedule property. They alleged that plaint B schedule formed pat of plaint A schedule property which originally belonged to Kesavan, husband of deceased plaintiff No.1. That property was bequeathed to deceased plaintiff No.1 and the appellant as per Will No.16 of 1971 executed by the said Kesavan and thus deceased plaintiff No.1 and appellant were in possession and enjoyment of the suit property after the death of Kesavan as its absolute owners. On the south of plaint A schedule there is property of respondents and that property was separated from plaint A schedule with fence constructed by respondents who used to periodically maintain the same. On 2.4.1991 respondents trespassed into plaint A schedule by about 5 feet width and constructed a new fence and thus encroached into plaint A schedule property. Encroached portion is described as plaint B R.S.A. No.64 of 2009 -: 2 :- schedule. Appellant and deceased plaintiff No.1 sought for recovery of B schedule. Respondents resisted the suit contending that their entitlement is to the property comprised in Sy.No.597/2 in which appellant or deceased plaintiff No.1 has no right whatsoever and that the fence on the northern side of their property was reconstructed at the same line it was as before. It is also contended that the said fence was in existence since long and title if any of deceased plaintiff No.1 and appellant over disputed B schedule is lost by adverse possession and limitation. Both sides adduced evidence. Trial court decreed the suit as if the suit is based on previous possession of appellant and deceased plaintiff No.1 brought under Section 6 of the Specific Relief Act (for short, “the Act”). Respondents challenged the judgment and decree in appeal. Learned Sub Judge set aside the judgment and decree and observed that learned munsiff was under a wrong impression that the suit was brought under Sec.6 of the Act while the suit was filed on the strength of title. Holding so, case was remitted to the learned munsiff for fresh disposal after giving opportunity to both sides to identify the disputed property by proper measurement with reference to their documents of title. That judgment was challenged by the appellant and deceased plaintiff R.S.A. No.64 of 2009 -: 3 :- No.1 in this Court in C.M.A.No.200 of 2001, but it was confirmed. After remand, learned munsiff considered the evidence on record and came to the conclusion that appellant and deceased plaintiff No.1 were not able to prove their title over plaint B schedule property and dismissed the suit. That dismissal was confirmed by the first appellate court. This second appeal is filed urging the question whether in spite of Exts.A8 and A9 courts below were justified in denying recovery of possession as prayed for. It is contended by learned counsel for appellant that Exts.A8 and A9 have been proved through P.W5 and hence accepting Exts.A8 and A9 courts below ought to have decreed the suit in favour of the appellant. Learned counsel for respondents would say that no substantial question of law is involved in this appeal requiring its admission. 3. The Supreme Court has stated in Boodireddy Chandraih v. Arigela Laxmi (2007 (4) KLT SN 40 Case No.41 (SC) that to be a substantial question of law to come under Section 100 of the Code of Civil Procedure the question of law raised must be debatable, not previously settled by law or a binding precedent or must have a material bearing on the decision of the case. In this case whether Exts.A8 and A9 could have been accepted by the courts R.S.A. No.64 of 2009 -: 4 :- below involved no question of law and much less any substantial question of law. Exhibits A8 and A9 are certified copy of Commission report and rough sketch in O.S. No.186 of 1996 filed by P.W5 against respondents in this case. Contention advanced on behalf of appellant is that the fence as originally stood in between plaint A and B schedules and property of respondents was on the same line the fence stood as shown in Exts.A8 and A9. P.W5 who filed O.S. No.186 of 1996 has also given evidence in that line. But courts below have observed that in the absence of measurement of the property belonging to appellant as per Ext.A2, title cannot be found in favour of appellant. This Court in Ambujakshy Amma & Another v. Gopi & Another (1989 (2) KLJ 705) held that in a suit based on title burden is squarely on the plaintiff to prove his title to the property in dispute and that failure on the part of plaintiff to measure the property with reference to his title deed is fatal to his case. Title to property cannot be determined by conjectures and surmises. In this case learned Sub Judge while remanding the case to the court of learned musniff observed that the that suit is based on title. Opportunity was given to the appellant to identify the property by proper measurement with reference to the document of title relied on R.S.A. No.64 of 2009 -: 5 :- by him. Still, the properties were not measured and a proper plan obtained. If that be so in the absence of a proper plan prepared after measurement of the disputed property and the rest of the property belonging to the appellant, he could not claim reliefs as prayed for. 4. On going through the judgments and decree and on hearing learned counsel I am of the view that no substantial question of law is involved in this second appeal. Second appeal is without any merit and the same is liable to be dismissed. Second appeal is dismissed. THOMAS P.JOSEPH, JUDGE. vsv