IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 RSA.No. 470 of 2011() --------------------- AS.6/2007 of SUB COURT, THIRUVALLA OS.146/2002 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- NANU NAIR, KUTTAPPA PANICKER, AGED 79 YEARS, ETTIKKALAYIL VEEDU, KOTTANADU MURI, PERUMPETTY VILLAGE. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. E.R.VIJAYAN, AGED 56 YEARS, S/O.RAGHAVAN, ETTICKAL VEEDU, KOTTANADU MURI, PERUMPETTY VILLAGE, PERUMPETTY P.O., PIN - 689 592 MALLAPPILLY. 2. RADHAMMA GOPALAKRISHNA PANICKER, AGED 76, KAVUMPADY PUTHEN VEEDU, KOTTANADU MURI, PERUMPETTY VILLAGE, PERUMPETTY P.O., PIN - 689 592. 3. GOPALAKRISHNA PANICKER, CHANDRA MOHANAN, AGED 56, S/O.KRISHNA PANICKER, GOPALAKRISHNA PANICKER, KAVUMPADY PUTHEN VEEDU, KOTTANADU MURI, PERUMPETTY VILLAGE, PERUMPETTY P.O., PIN - 689 592. 4. GOPALAKRISHNA PANICKER - RAJ MOHANAN, AGED 56, S/O.KRISHNA PANICKER, GOPALAKRISHNA PANICKER, KAVUMPADY PUTHEN VEEDU, KOTTANADU MURI, PERUMPETTY VILLAGE, PERUMPETTY P.O., PIN - 689 592. 5. RADHAMMA NISHA, AGED 51, KAVUMPADY PUTHEN VEEDU, KOTTANADU MURI, PERUMPETTY VILLAGE, PERUMPETTY P.O., PIN - 689 592. 6. RADHAMMA PUSHPA, AGED 48, KAVUMPADY PUTHEN VEEDU, PERUMPETTY VILLAGE, RSA 470/2011 PERUMPETTY P.O., PIN - 689 592. 7. RADHAMMA LATHA, AGED 45, KAVUMPADY PUTHEN VEEDU, KOTTANADU MURI, PERUMPETTY VILLAGE, PERUMPETTY P.O., PIN - 689 592. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.470 of 2011 ............................................ DATED THIS THE 5th DAY OF AUGUST, 2011 JUDGMENT Plaintiff in O.S.No.146 of 2002 on the file of Munsiff Court, Thiruvalla is the appellant. Respondents are the defendants. Suit was filed for declaration of title and recovery of possession of item No.2 of the plaint schedule property and for fixation of boundary. Appellant contended that item Nos.1 and 2 of the plaint schedule properties form part of the property belonging to the appellant under Ext.A1 mortgage deed 3246/1967 and legal heirs of Raghavan Nair, the mortgagor had instituted O.S.137 of 1975 and that suit was dismissed under Ext.A7 judgment and respondents have no manner of right or title to item No.2 of the plaint schedule properties and appellants are entitled to recover possession of item No.2 based on title and to fix the boundary of item No.1 of the plaint schedule properties. 2. Respondents resisted the suit contending that though appellant claimed 20 cents being the northern part of the property obtained under Ext.A1, when he admits that a portion of rsa 470/2011 2 the property was taken for formation of the road and did not disclose the actual extent of the property taken for widening the road and the 35 cents claimed under Ext.A1 was not scheduled with ulterior motive, he is not entitled to relief. It was contended that the old kayyala, boundary stones and fence which were in existence for the last several years to separate the property of the appellant from the property of the respondent are still in existence and appellant has no right over any portion of the property in the possession of respondents. It was contended that first respondent purchased 58.16 acres of land as per document No.1359 of 2001 from second respondent and appellant is not entitled to claim any right over any portion of the said property. 3. Learned Munsiff on the evidence of PW1, Dws 1 to 4, Exts.A1 to A7, B1, C1 and C1(a) dismissed the suit holding that appellant failed to establish that plaint schedule property is the property obtained under Ext.A1 mortgage deed and without proper identification of the plaint schedule properties, a decree cannot be granted. Appellant challenged the judgment before Sub Court, Tiruvalla in A.S.6 of 2007. Learned Sub Judge on re- rsa 470/2011 3 appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that under Ext.A1, appellant has obtained 35 cents of the property and subsequently purchase certificate was also obtained from the Land Tribunal and Ext.A7 judgment in O.S.137 of 1979 establishes that though legal heirs of the original mortgagor instituted the suit for redemption, that suit was dismissed and in such circumstances, appellant has title to item Nos.1 and 2 of the plaint schedule properties and as item No.2 is in the unlawful possession of the respondents, a decree for declaration and recovery of possession should have been granted. Learned counsel would argue that even if the property covered under Ext.A1 was not identified as such, an opportunity is to be granted for proper identification. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Appellant could succeed in the suit only on establishing that plaint schedule rsa 470/2011 4 properties are portions of the properties obtained by them under Ext.A1. Even according to the appellant, portions of the property covered under Ext.A1 was taken for widening the road. Item No.1 of the plaint schedule properties is described as the northern part having an extent of 20 cents and item No.2, the southern portion having an extent of 5 cents. Unless the property covered under Ext.A1 is identified and the property surrendered for widening the road is fixed and it is shown that item Nos.1 and 2 of the plaint schedule properties form part of the property covered under Ext.A1, appellant cannot get a decree for declaration of title or recovery of possession, or fixation of the boundary. Appellant has no case that he did not get opportunity before the trial court to identify the property covered under Ext.A1. It is clear from the written statement filed by respondents that they have objected to the description given in the plaint contending that with purpose property covered under Ext.A1, viz 35 cents was not scheduled. In spite of these contentions, appellant did not take any steps to get the property covered under Ext.A1 identified and establish that item Nos. 1 and 2 of the plaint schedule properties form part rsa 470/2011 5 of the property covered under Ext.A1. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk