IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 SA.No. 143 of 2003(A) --------------------- AS.1/1992 of DISTRICT COURT, MANJERI OS.58/1988 of MUNSIFF COURT,PERINTHALMANNA .................... APPELLANT(S): (APPELLANT/PLAINTIFF): --------------------------------------------------------------- AMBAT MUHAMMED, S/O. ALAVI, KIZHATTUR AMSOM DESOM, PERINTALMANNA TALUK. BY ADVS. SRI.T.SETHUMADHAVAN, SRI.PUSHPARAJAN KODOTH, SRI.K.JAYESH MOHANKUMAR. RESPONDENT(S): (RESPONDENTS/DEFENDANTS): --------------------------------------------------------------------------- 1. KOLLAMTHODIKA GOPALAN, S/O. ITTIKUTTY, KIZHATTUR AMSOM DESOM, PERINTALMANNA TALUK. 2. IRAKKAL RADHAKRISHNAN, S/O. VASUDEVAN, THUVVUR AMSOM DESOM, ERNAD TALUK. R1 BY ADV. SRI.K.M.SATHYANATHA MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON 15/06/2010 DELIVERED THE FOLLOWING: Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 143 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of June, 2010. JUDGMENT The plaintiff, who was non-suited by the court below and his appeal was dismissed by the lower appellate court has come up with this Second Appeal. 2. The plaintiff and his mother claimed to have obtained the plaint schedule property as per Ext.A1 dated 3.2.1956 from the tarawad of Pazhedath Manakkal Narayanan Namboodiri. Consequent on the death of his mother, the plaintiff has become the absolute owner of the property and he is in possession and enjoyment of the same. Plaint schedule properties are item Nos. 1 to 3 in Ext.A1. The defendants have no right over the suit property. The allegation is that on on 13.1.1988 they attempted to trespass into the north-western portion of the property and also tried to tamper with the boundary S.A.143/2003. 2 of the property. Their attempt was thwarted by the plaintiff. But he apprehends that the defendants may again resort to such activities. Therefore the suit was laid. 3. Even though defendants 1 and 2 filed separate written statements, their contentions are identical. It is pointed out that on the alleged date of trespass, the second defendant was not in station and that the plaintiff has no cause of action against him. According to them, it was the plaintiff, who tried to destroy the boundary of the property and trespass into their property. They contended that the plaintiff had no title or possession over the property comprised in Sy. No.1 and it belonged absolutely to the second defendant. The plaintiff's property is in Sy. No.6/1 and even though he claims to have obtained 4.29 acres, actually he had obtained much lesser extent. The defendants claimed to have obtained the property, which they now possess, under Exts. B1, B2 and B3. Apart from defending the suit, they also laid a counter claim. S.A.143/2003. 3 4. The plaintiff filed a written statement to the counter claim denying the allegations. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendants had D.Ws. 1 to 3 examined and had Exts.B1 to B5 series marked. Exts.C1 and C1(a) are the commission report and plan. On an appreciation of the evidence in the case, the court below came to the conclusion that the plaintiff has miserably failed to establish his possession over the disputed portion. The plaintiff took up the matter in appeal as A.S.1 of 1992. The appellate court dismissed the appeal confirming the judgment and decree of the appellate court. Hence the Second Appeal. 6. The following substantial questions of law have been formulated in this Second Appeal: S.A.143/2003. 4 “A. Whether in a suit for injunction against trespass, the defendants claim title and possession only under their title deed which takes in property in a different survey number and the survey sketch produced in the case is available to demarcate the common boundary, the Courts are justified in dismissing the plaintiff's suit for the reason that the commissioner deputed could not identify the properties? B. Whether the Court ought not to have relied on the Commissioner's report and plan produced in the suit filed by the defendants against the present plaintiff wherein the properties of the defendants and present plaintiff have been identified with respect to the respective survey numbers? C. Should not the appellate court granted a decree of injunction as regards the plaintiffs property in Sy. No.6/1 in which the defendants could not claim any title? D. In any event should not the appellate court, in the circumstances of the case, remanded the case for fresh disposal?” S.A.143/2003. 5 7. Learned counsel appearing for the appellant pointed out that a reading of the judgment of the lower appellate will clearly show that there is a clear controversy regarding the identity of the property. Learned counsel drew the attention of this court to the fact that the commissioner has stated that he could not identify whether the disputed portion is comprised in Sy. No.6/1 or Sy. No.1. That means, according to learned counsel, that the property involved has not been identified. The lower appellate court ought to have remanded the matter to the trial court for fresh consideration. The act of the lower appellate court in confirming the judgment and decree has caused considerable prejudice to the plaintiff. Accordingly, it is contended that, the judgment and decree are clearly unsustainable in law. 8. Learned counsel appearing for the respondents pointed out that there is no basis for the above contention at all. The trial court has considered all the aspects and had come to the conclusion that the property has not been S.A.143/2003. 6 identified and no efforts were made by the plaintiff to have it properly identified, and the plaintiff was not able to show that he has rights over the disputed portion identified by the commissioner. Learned counsel also drew the attention of this court to the judgment of the lower appellate court and pointed out that it is not as if that the appellate court has simply rejected the claim of the plaintiff. The appellate court has evaluated the evidence and has come to the same conclusion as the trial court. The finding of the courts below that the plaintiff has not been able to establish his case being essentially a question of fact, according to learned counsel, no interference is called for in the Second Appeal. 9. One may refer to the Commission plan for easier reference. A plot shown as F, C, C1, D1, E is the disputed property. The claim of the plaintiff is that the suit property belongs to him absolutely and the defendants have no manner of right. The defendants say otherwise. It is an S.A.143/2003. 7 admitted case that the property owned by the plaintiff is comprised in Sy. No.6/1, whereas the property owned by the defendants is in Sy. No.1. 10. The commissioner was examined as D.W.1. He has deposed that he had identified the property on the basis of Exts.A3 and B4 survey plans. He has shown three Taks scheduled in the plaint as Oorinkara paramba, Karikkal paramba and Pulakkal Paramba with side measurements of 60 x 12, 60 x 60 and 80 x 52. The commissioner has also shown the property owned by the second defendant on the north western side of these plots. 11. It may be noticed that the plaintiff claims title to the suit property as per Ext.A1 and all the three items claimed by the plaintiff are included in the said deed. Both the courts below have noticed the boundaries of the property and found that the plot shown by the commissioner does not form part of the plaintiff's property. Both the courts below have found that the properties identified as three taks, which belonged to the plaintiff, does not take in S.A.143/2003. 8 the disputed portion. It is significant to notice that the trial court has observed that the plaintiff has no case that the identification is incorrect or the measurements made by the commissioner are wrong. 12. It is also noticed by both the courts below that going by the measurements in the document of title of the plaintiff, the extent of property comes much more than 4.25 acres. Therefore both the courts chose it fit to ignore the extent shown in the document and to go by the boundaries. 13. Both the courts below have placed reliance on the commission report, which clearly indicated that the disputed portion shown by the commissioner as F, C C(1) D (1), E lies well separated from the rest of his property. In fact a reading of the judgment of the trial court shows that it has elaborately considered all the aspects and has come to the conclusion that the plaintiff was unsuccessful in establishing his title to the disputed portion as identified by the commissioner. S.A.143/2003. 9 14. Exts.B2 and B3 are the assignment deeds based on which the defendants claimed rights. Ext.B4 is the field map of Sy.No.6. One may recall that the plaintiff lays claim to the property comprised in Sy.No.6/1. It is an admitted fact that the defendants owned property in Sy.No.1 and known as Vattakalari paramba. It is true that the commissioner examined as D.W.1 says that he is unable to show that the disputed property is comprised in Sy. No.6/1 or Sy. No.1. To that extent there may be some justification in the claim made by the plaintiff that there has been no proper identification of the property. However, it has to be noticed that when the commission report disclosed this fact, the plaintiff ought to have taken such steps to have the property properly identified. But he remained passive. In fact the evidence of P.W.1, the plaintiff shows that he did not seriously challenge the commission report and he had not sought for setting aside of the commission report and a fresh plan to be filed pointing out that it may be ascertained whether the disputed portion falls within Sy. No.6/1 or Sy. S.A.143/2003. 10 No.1. 15. As already noticed, one cannot go by the measurements in the document of title of the plaintiff. Essentially one has to be guided by the boundaries. 16. It is true that going by the commission report there is slight difference in the boundaries of the plaint schedule property. But that is insufficient to hold that the plan and report as such should be rejected. It has also been noticed by the commissioner that there is a row of trees along FM line, and that there is a way along AF line. The mere fact that the plaintiff has been able to pick up minor loopholes in the evidence of the commissioner does not enable him to contend for the position that there is no proper identification of the property. At any rate, there is nothing to show that the disputed portion of the property belongs to the plaintiff or forms part of his property obtained under Ext.A1 as claimed by him. S.A.143/2003. 11 17. No serious errors, either of law or facts have been committed by the courts below and they came to the respective conclusions based on the evidence adduced in the case. The conclusions are essentially findings on fact and no substantial question of law arises for consideration in this Second Appeal. The result is that the Second Appeal is without merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.