IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 RSA.No. 332 of 2009() --------------------- AS.102/2008 of SUB COURT, PERUMBAVOOR OS.19/2006 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. BABU, S/O.GOVINDAN, AGED 45 YEARS, KALLARKUDY HOUSE, KOODALAPPAD KARA, KOOVAPPADY VILLAGE. 2. SABU, S/O.GOVINDAN, AGED 40 YEARS, KALLARKUDY HOUSE, KOODALAPPAD KARA, KOOVAPPADY VILLAGE. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.P.J.JOSEPH SRI.GEORGE MATHEW RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- LEELA, W/O.RAJENDRAN, MUNDANPARAMBU HOUSE, KOODALAPPAD KARA, KOOVAPPADY VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 772 OF 2009 IN R.S.A. NO. 332 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 5.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 332 of 2009 ---------------------------------------- Dated this the 5th day of June, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 102/2008 on the file of the Sub court, Perumbavoor arising from judgment and decree in O.S. 19/2006 on the file of the Munsiff's Court Perumbavoor. The suit was filed for fixation of boundary of the plaint A schedule property and for prohibitory injunction. The said suit was decreed by the trial court and confirmed in appeal by the lower appellate court. . Hence this Second Appeal is filed by the defendants in the suit. 2. The plaintiff and the defendants are sister and brothers respectively The plaint A schedule property belongs to the plaintiff. The plaint A schedule property and neighbouring properties originally belonged to the father of the plaintiff and defendants namely Govindan. The plaint A schedule property is described as C schedule property in Ext.A1 will Deed. A,B schedule in the Ext.A1 will deed are set apart to the defendants. According to the plaintiff there was no compound wall or fence to separate the plaint A schedule property and the neighbouring defendants' properties. The facts that Ext.A1 is the title deed in respect of the plaint schedule property and the title of the plaintiff are not disputed by either side. 3. The trial court examined the oral evidence tendered by PW1, DW1 and DW2 and marked Exts. A1 to A4, B1 , C1 and C1(a). 4. An Advocate Commissioner was appointed to survey the plaint R.S.A. No. 332 of 2009 -2- schedule properties. Ext,C1 and C1(a) are the report and plan respectively, filed by the Commissioner. On a perusal of the report and plan submitted by the Advocate Commissioner the trial court found that plot No.1 in Ext.C1(a) is the plaint Schedule property, plot No.2 is the property of the 2nd defendant in Sy.No. 246/4 and plot No. 3 is the plaint B schedule way. There is no boundary to separate the plaint A schedule property and the properties of the 2nd defendant in Survey No. 246/2004 . The trial court also noted the fact that the relationship between the plaintiff and the defendants has been strained. Both the plaintiff and defendants have not filed objection to the Commissioner's report and survey plan. After an elaborate discussion and appreciation of the oral and documentary evidence, the trial court passed a decree restraining the defendants by way of permanent prohibitory injunction and not to obstruct the construction of compound wall or fence upon A, B line in Ext.C1(a) or cause obstruction to the user or maintenance of plaint B schedule way by the plaintiff. 5. In appeal ,the lower appellate court also examined the contentions raised by the defendants/appellants in detail. The specific contention regarding oral transfer by the plaintiff in favour of the defendants/appellants pleaded by defendants is not established The lower appellate court also held that the defendants/appellants failed to prove all the contentions raised by them in the written statement. After a scrutiny of the Commissioner's report and examination of all the oral and documentary evidence the lower appellate court agreed with the findings of the trial court . R.S.A. No. 332 of 2009 -3- 6. The courts below concurrently held that the plaint schedule property belongs to the plaintiff and A B line in Ext.C1(a) will be the boundary separating plaint A schedule property and property of the 2nd defendant in Sy.246/4. The findings are purely on the basis of facts and evidence. I do not find any reason to interfere with the judgments and decrees passed by the courts below. There is no scope for invoking Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this Second Appeal . This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 332 of 2009 ---------------------------- JUDGMENT 4th June, 2009