IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 SA.No. 690 OF 1997() -------------------- AS.182/1994 of II ADDL.SUB COURT,THIRUVANANTHAPURAM OS.555/1980 of IIND ADDL.MUNSIFF'S COURT, NEYYATTINKARA .................... APPELLANT/(1ST RESPONDENT/PLAINTIFF) ------------------------------------------------- KRISHNA PILLAI SADASIVAN NAIR, EASWARA VILASAM BUNGLOW, KARUMANOOR DESOM, PALUKAL VILLAGE, KANYAKUMARI DISTRICT. BY ADV. SRI.G.S.REGHUNATH SRI.MOHAN JACOB GEORGE RESPONDENTS(APPELLANTS 1 AND 2, 3RD RESPONDENT/DEFENDANTS 1 TO 3): ---------------------------------------------------------------------------------------- 1. ARIYANCODE PANCHAYAT, REPRESENTED BY ITS SECRETARY. 2. THE EXECUTIVE OFFICER, REPRESENTED BY DO. PANCHAYATH. 3. THE PRESIDENT, ARIYANCODE PANCHAYAT. BY ADVS. M/S. SRI.L.MOHANAN & D.SAJEEV THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S. GOPINATHAN, J. = = = = = = = = = = = = S.A. NO. 690 OF 1997 = = = = = = = = = = = == == = = = = DATED THIS, THE 22ND DAY OF DECEMBER, 2011. J U D G M E N T The plaintiff in O.S. 555 of 1980 on the file of the IInd Additional Munsiff's Court, Neyyattinkara, is the appellant. He instituted the suit originally seeking a decree of permanent prohibitory injunction in respect of plaint B schedule property with a contention that plaint A schedule property, of which B schedule is a part, was obtained by the plaintiff by virtue of Ext.A3 gift deed and that the defendants have no manner of right over the same and that they attempted to trespass into the plaint B schedule property under the pretext of widening a canal. 2. The suit was resisted by the respondents/defendants denying the right, title and possession of the appellant/plaintiff over the plaint B schedule properties. It was also contended that even if the appellant/plaintiff had any manner of right or title over the same, it was lost by adverse possession and limitation. 3. After raising the issues, the parties were sent for trial. The appellant was examined as PW.1 and Exts.A1 to A5 were marked on his S.A.690/1997 2 side. Ext.B1 was marked on the defendants' side. The report and plan submitted by the Commissioner were marked as Exts.C1 and C2. On appraisal of the evidence on record, the trial court found against the appellant. Consequently, the suit was dismissed by judgment dated 31.1.1984. Assailing the above judgment and decree, the appellant filed A.S. 289 of 1989 before the District Court, Thiruvananthapuram. The District Judge, while allowing the appeal, remanded the case to the trial court for fresh disposal. Thereafter, the plaint was amended by incorporating a prayer for declaration of right and title of the appellant over plaint B schedule properties and for a consequential injunction. Additional evidence was also recorded. The trial court decreed the suit against which appeal as A.S. 23 of 1990 was filed before the District Court, Thiruvananthapuram. It was made over to the IInd Additional Sub Court where it was numbered as A.S. 182 of 1994. By the judgment and decree dated 6.7.1996, the appeal was allowed. The judgment and decree of the trial court were set aside and the suit was dismissed. The Appellate Court arrived at a finding that the appellant failed to establish his title, right or possession over plaint B schedule properties. Assailing the above decree and judgment, this second appeal was preferred. 4. The following are the substantial questions of law raised in the S.A.690/1997 3 memorandum of appeal: (a). When the plaintiff has proved his title and possession over plaint A and B schedule property by producing Ext.A1 to A5, is he not entitled to a decree declaring his title and possession, (b) Is the lower appellate court justified in making the observation that the property in A3 is a rectangular plot when there is no such statement in A3. (c) Is the lower court justified in setting aside the commission report at the appellate stage on the basis of the misinterpretation of A3 and dismissing the suit on the ground that there is no commission report and plan to prove the case of plaintiff. (d) When the court is setting aside a commission report without any evidence, is not the court bound to give an opportunity to the plaintiff to take out another commission. e) Is the court justified in dismissing the suit by misinterpreting A3 and ignoring the evidence in the case. (f) Is not the court bound to consider preponderance of the probabilities in the case of plaintiff when a false and malafide contention is taken by defendants. (g) Is not the court bound to draw adverse inference against defendants? 5. In fact there is no question of law raised. All what is raised as questions of law are questions of fact regarding the identity of the plaint B schedule property, its title and possession. The appellate court non suited S.A.690/1997 4 the appellant on finding that the appellant failed to establish the title and possession. It is really a finding of fact. However, I heard the learned counsel on either side, perused the judgments of the courts below, Ext.A3 title deed and Exts. C1 and C2 plan and report. 6. The plaint B schedule is described as measuring 15 cents. As per Ext.C2 plan it measures 9.487 cents, which is described as plot ABSRONM. It is lying on the western side of the canal. Going by the description of the disputed property in Ext.A3 gift deed, I find that the description of the boundaries noted by the commissioner in his report does not tally with Ext.A3. The appellate court had also noted that going by Ext.A3 the property claimed by the appellant shall be on the eastern side of the canal. Whereas the disputed property is on the western side of the canal. Entirely it is a different plot. Based on that reason, the appellate court arrived at a finding that the appellant failed to establish his title over the pliant B schedule property as the property now identified as B schedule wouldn't come within the description of the property described in the title deed. It is a question of fact and the decision of the appellate authority is based upon appreciation of evidence referring to the document and survey records. Absolutely, no question of law involved. Sitting in second appeal I am afraid to have a reappraisal of the evidence. However, from the materials S.A.690/1997 5 stated earlier, I find that the description of B schedule property identified by the commissioner in Ext.C2 plan does not tally with the description of the boundaries in Ext. A3. It means that the disputed property identified by the commissioner is not covered by the title deed relied on by the appellant. Thus there is failure on the side of the appellant to establish the title and possession of B schedule. The appellate court was right in reversing the decree of the trial court and dismissing the suit. The second appeal is devoid of merit. It is accordingly dismissed. However, I make no order as to costs. P.S. GOPINATHAN, (JUDGE) knc/- S.A.690/1997 6 P.S. GOPINATHAN, J. = = = = = = = = = = = = S.A. NO. 690 OF 1997 = = = == == = = = = DATED : 22ND DECEMBER, 2011. J U D G M E N T