IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 RSA.No. 948 of 2006() --------------------- AS.146/1998 of ADDL. DIST. COURT (ADHOC) FAST TRACK III, PATHANAMTHITTA OS.86/1995 of MUSNIFF COURT,ADOOR .................... APPELLANTS/APPELLANTS 1 & 2/DEFENDANTS 1 & 2: ----------------------------------------------------------------- 1. NABEESATHU BEEVI, D/O.NAGOOR MEERAN RAWTHER,PADINJARENALUTHUNDIL- VEEDU, THONNALLOR MURI, PANDALAM VILLAGE, ADOOR TALUK. 2. SALIM, S/O. NABEESATHU BEEVI, D/O. NAGOOR MEERAN RAWTHER, PADINJARENALUTHUNDIL- VEEDU, THONNALLOR MURI, PANDALAM VILLAGE, ADOOR TALUK. BY ADV. SRI.K.S.SIVA KUMAR SRI.C.B.SREEKUMAR RESPONDENT(S): RESPONDENT & 3RD APPELLANT/PLAINTIFF & 3RD DEFNDT. ----------------------------------------------------------------- 1. ABDUL SAMAD RAWTHER, S/O. NAGOOR MEERAN RAWTHER, SHYAMA MANZIL, MANGARAM, PANDALAM VILLAGE, ADOOR TALUK. 2. MOHAMMED KHAN RAWTHER, PADINJARENALUTHUNDIL VEEDU, THONNALLOR MURI, PANDALAM VILLAGE, ADOOR TALUK. ADV. SRI.JACOB P.ALEX FOR R1 SRI.A.K.HARIDAS FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.948 OF 2006 ............................................ DATED THIS THE 29th DAY OF JUNE, 2011 JUDGMENT Defendants 1 and 2 in O.S.86 of 1995 on the file of Munsiff Court, Adoor are challenging the concurrent decree and judgment fixing the boundaries of the plaint schedule property, as demarcated by the Commissioner in Ext.C2 plan. The plaint schedule property is 2¾ cents in Survey No.318/5A/2 of Pandalam Village described as portion of the 13 ½ cents, out of the 14 cents leaving a way having a length of 100 links and width of 5 links, out of 17 cents being part of the 34 cents. Plaint schedule property admittedly originally belonged to Nagoor Meeran Rawther who obtained 17 cents under registered partition deed 221/1109. Out of the property, he settled three cents by registered settlement 2253/1951 in favour of Nabeesathu Beevi, the daughter and later executed settlement deed 233/1953 in respect of the remaining property in favour of his wife. The said property was subsequently settled by the mother in favour of three sons, plaintiff, Shamsudheen and third defendant under RSA 948/2006 2 Ext.A1 settlement deed. Subsequently under Ext.A2, portions of the property settled in favour of Shamsudheen and the respondent were exchanged and item No.2 of the plaint schedule property is the property so obtained under Ext.A2 and item No.1 is the remaining property left with the respondent under Ext.A1 settlement deed. The suit is filed for fixation of the boundaries of the plaint schedule property. Appellants, along with third defendant filed a written statement admitting the relationship as well as Ext.A1 settlement deed and Ext.A2 exchange deed. But it was contended that the pathway provided under Ext.A1 is not as alleged in the plaint but the pathway leading from M.C.road runs towards the north to reach the property of third defendant under Ext.A1. It was contended that the defendants are enjoying the pathway through the southern side of the shop room constructed facing the M.C.road and it is having a width of 4 feet and is being enjoyed as provided under Ext.A1 and there are well defined boundaries in between the properties of the respondent and appellant and the respondent is not entitled to cause any obstruction to the usage of the said pathway and therefore the suit is to be dismissed. RSA 948/2006 3 2. Learned Munsiff, on the evidence of Pws 1 and 2, Dws 1 to 3, Exts.A1 and A2 and C1 to C3 found that the properties were properly and correctly demarcated by the Commissioner in Ext.C2 (a) plan and plot OWVUEFTRSRQP is the plaint schedule item Nos.1 and 2 of the properties and fixed OWVU as the boundary on the south and RS line on the north as separating boundaries. Defendants challenged the judgment before District Court, Pathanamthitta in A.S.146 of 1998. Before the first appellate court, third defendant abandoned the appeal and only the appellants pressed the appeal. Learned Additional District Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellants and learned counsel appearing for respondents who appeared on the notice served before admission, were heard. 4. The argument of the learned counsel appearing for appellants is that the southern plot BCDWL as demarcated by the Commissioner being the southern three cents settled by settlement deed 2253/1951 is not having an extent of 3 cents RSA 948/2006 4 and as per the plot demarcated by the Commissioner and the extent is only 2.75 cents and therefore the demarcation is not correct. The learned counsel appearing for respondent pointed out that the only contention raised before the trial court was with reference to the demarcation of the pathway as according to the defendants, the pathway should proceed further to the north and reach the property of third defendant. But third defendant had subsequently given up that claim before the first appellate court. In the light of the evidence on record and the factual findings, no substantial question of law is involved. 5. There is no dispute with regard to the right or title to the properties of the appellants or the respondents. The property originally belonged to the father, which was settled in favour of his wife, the mother of respondent, after transferring three cents in favour of the daughter by settlement deed of 1953. That is the property which is being claimed by the appellants. The Commissioner has demarcated that plot as BCDWN in Ext.C2 plan. The extent of the property as demarcated by the Commissioner is 3 cents. As seen from Ext.A1, the property settled under Ext.A1 is the remaining 14 cents leaving the 3 RSA 948/2006 5 cents settled in favour of Nabeesath Beevi earlier. While dividing the property into 3 shares, a way was provided as described in Ext.A3, which lies immediately to the north of the 3 cents settled earlier by the father in favour of the daughter. The measurement of the pathway is also specifically provided. It is the pathway which was demarcated by the Commissioner in Ext.C2 plan as plot EDWV. The property which lies immediately to its north and west viz, to the north of the 3 cents and the pathway is the property belonging to the respondent under Ext.A1 and A2. The northern boundary of that plot is the line RS and the southern boundary is the line OWVU as shown by the Commissioner. Though learned counsel appearing for appellants argued that the extent available as demarcated by the Commissioner is less than 3 cents, the evidence of the Commissioner shows that the property was measured and fixed by the Surveyor and the extent as demarcated is 3 cents. Appellant had no case that if the measurement as shown by the Commissioner, within the boundary lines is calculated, the extent is not 3 cents. In such circumstances, I find that there is no error in the factual finding rendered by the courts below and the plaint schedule property RSA 948/2006 6 was properly demarcated and boundaries fixed. As no substantial question of law is involved, the appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk