IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 RSA.No. 1218 of 2008() ---------------------- AS.104/2004 of ADDL.SUB COURT, ALAPPUZHA 0S.624/1995 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF:- ISAC, S/O. MATHAI, RETIRED AIR FORCE PERSONNEL, NOW RE. AT PALAKALATHI, PANDANKARI P.O. EDATHUVA, KUTTANAD TALUK, ALAPPUZHA DIST, K.P. 10/ 191, N.C.C. ROAD, PERRORKADA P.O., THIRUVNANTHAPURAM FROM HEAD QUARTERS, SOUTHERN AIR COMMANDANT,KOWDIYAR P.O., TVM.-3. BY ADV. SRI.MAURICE VINCENT RESPONDENT(S): 1. CHERIYAN, S/O. MAHTHAI, PALAKALATHIL, EDATHUVA VILLAGE, PANDANKARI P.O., KUTTANAD, ALAPPUZHA DIST (DIED), 2. ACHAMMA CALLED AMMINI, W/O.CHERIYAN, PALAKALATHIL EDATHUVA VILLAGE, RAMANKARI P.O., KUTTANADU TALUK, ALAPPUZHA DIST. 3. P.C. MATHEW, CALLED RAJU, S/O. CHERIYAN PALAKALATHIL, EDUTHUVA VILLAGE, PANDANKARI P.O., KUTTANADU TALUK, ALAPPUZHA DIST. 4. P.C. ALEXANDER CALLED BABU, S/O. CHERIYAN, PALAKALATHIL, EDUTHUVA VILLAGE, PANDANKARI P.O., KUTTANADU TALUK ALAPPUZHA DIST. 2 5. LISSY, D/O. CHERIYAN, PALAKALATHIL, EDATHUVA VILLAGE, PANDANKARI P.O., KUTTANADU TALUK, ALAPPUZHA DIST. 6. NANCY, D/O. CHERIYAN, PALAKALATHIL, EDATHUVA VILLAGE, PANDANKARI P.O., KUTTANAD TALUK, ALAPPUZHA DIST. 7. SUNNY, S/O. CHERIYAN, PALAKALATHIL, EDATHUVA VILLAGE, PANDANKARI P.O., KUTTANAD TALUK, ALAPPUZHA DIST. 8. SALU, S/O. CHERIYAN, PALAKLATHIL EDATHUVA VILLAGE, PANDANKARI P.O., KUTTANADU TALUK, ALAPPUZHA DIST. 9. SAJI, S/O. CHERIYAN, PLAKALATHIL, EDATHUVA VILLAGE, PANDANKARI P.O., KUTTANADU TALUK, ALAPPUZHA DIST. 10. SAM, S/O. CHERIYAN, PALAKALATHIL, EDATHUVA VILLAGE, KUTTANADU, TALUK, ALAPPUZHA DIST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.1218 of 2008 = = = = = = = = = = = = = = Dated this the 21 st day of January 2009 JUDGMENT The plaintiff in O.S.No.624 of 1995 on the file of the Munsiff's Court, Alappuzha is the appellant in this second appeal. The said suit was one for fixation of boundary of the plaint schedule item No.1 shown as admeasuring 71.640 cents and lying to the west of plaint schedule item No.2 admeasuring 10 cents. 2. The case of the plaintiff was that the entire plaint schedule item Nos.1 and 2 altogether admeasuring 81.640 cents was purchased by him as per Ext.A1 sale deed dated 31.7.1973 and since he was at that time a combatant member in the Indian Air Force, he was away at his place of employment and during his absence his father was residing in the property and the 1st defendant who is one of the brothers of the plaintiff obtained a certificate of purchase of kudikidappu over plaint schedule item No.2 admeasuring 10 cents as per order in O.A.No.515 of 1973 on the file of the Land Tribunal, Champakulam and the R.S.A.No.1218 of 2008 2 defendants attempted to further trespass into the plaint schedule item No.1. Hence the suit for fixation of boundary of plaint schedule Item No.1 and for perpetual injunction restraining the 1st defendant from trespassing into plaint schedule item No.1. 3. On the side of the plaintiffs three witnesses were examined as PWs.1 to 3 of whom PW2 is one of the Advocate Commissioners and Exts.A1 to A3 were got marked. On the side of the defendants, the 2nd defendant was examined as DW1 and yet another witness was examined as DW2 and Ext.B1 rough sketch was marked. 4.The Advocate Commissioners deputed by the trial court submitted Ext.C1 series and C2 series respectively. 5. The learned Munsiff, after trial, as per judgment and decree dated 24.07.03, dismissed the suit. On appeal preferred by the plaintiff before the Additional Sub Judge, Alappuzha as A.S.No.104/2004, the learned Judge as per judgment and decree dated 11.12.07 reversed the decree passed by the trial court and allowed the appeal in part, holding that the appellant/plaintiff who is in possession of 68.200 cents shows as plot ABCD in Ext.C2(b) plan and comprised in Re-survey No.568/14-1 of R.S.A.No.1218 of 2008 3 Edathua village and fixing the eastern boundary of the said plot along the line “BC” having a length of 172 links and also granting a perpetual injunction restraining the defendants from entering into any portion of plot ABCD which was directed to be appended to the judgment. Hence this second appeal by the plaintiff. 6. The following are the questions of law formulated in the memorandum of second appeal:- 1) Whether commissioner measured the disputed property on possession which is challenged by the appellant is legally correct? 2) Whether the plea of defendants is maintainable when they admit the paramount title of plaintiff in respect at plaint item No.1? 3) Whether the Exhibit C2(b) plan is acceptable are not. 4) Whether objection petition against the commissioners mahazar report and plan can be considered as objection to the same? 7. I heard the learned counsel appearing for the appellant/ plaintiff. He made the following submissions before me in support of the appeal:- The plaintiff/ appellant was a combatant person in the R.S.A.No.1218 of 2008 4 Indian Air Force and he was not available in his native place for a very long period. After acquiring the plaint schedule Item Nos.1 and 2 having a total extent of 81.640 cents, the plaintiff was not physically available at the site. During his absence, the 1st defendant who is one of his brothers had fraudulently obtained a purchase certificate in his favour in respect of plaint item No.2, without making the plaintiff a party to the proceeding before the Land Tribunal. After the disposal of the suit by the trial court, the appellant came to know that the purchase certificate which was not produced by the defendants before the trial court showed a total extent of less than 10 cents in which case that part of plaint schedule Item No.2 in excess of the area covered by the said purchase certificate would still belong to the plaintiff. The plaintiff had produced the certificate of purchase before the lower appellate court, which should have considered the contentions of the plaintiff in that behalf. 8. I am afraid that I cannot agree with the above submissions. Plaint schedule Item No.2 admeasuring 10 cents was specifically admitted by the plaintiff as the property held by his brother, the 1st defendant as kudikidappu on the strength of R.S.A.No.1218 of 2008 5 purchase certificate issued by the Land Tribunal. The prayer for fixation of boundary was made only in respect of plaint schedule Item No.1 property having an extent of 71.640 cents. The plaintiff cannot now turn round and submit that the purchase certificate was obtained fraudulently and the plaintiff still holds a portion of plaint schedule item No.2 in excess of the area covered by the purchase certificate. He did not seek an amendment of plaint nor did he challenge the certificate of purchase issued by the Land Tribunal. So the plaintiff will have to confine his relief with regard to the plaint schedule Item No.1 alone. The Advocate Commissioner deputed by the trial court with the assistance of the Surveyor prepared Ext.C2(b) plan, as per which plaint schedule item No.1 comprised in Survey No.568/14-1 has an extent of only 68.200 cents at site. The plaint schedule item No.2 lies on the eastern side of plaint schedule Item No.1 and both items lie contiguous to each other. The Advocate Commissioner has also identified the property covered by O.A.No.515/73 (that is the Kudikidappu property) as comprised in Survey No.568/14-1 having an extent of 10 cents. Immediately to the east of the said 10 cents, the defendants were R.S.A.No.1218 of 2008 6 found in possession of a narrow strip of land having an extent of 2.338 cents comprised in Survey No.567/1-3. Further to the east of the said 2.338 cents is a pathway running north-south and taking a turn towards the west over and passes along the southern boundary of the kudikidappu land of the defendants and having an extent of 922 squarelinks comprised in Survey No.567/1-3. The said pathway joins a Government road running east-west along the southern boundary of plaint schedule item No.1 and comprised in survey No.568/14-1 and 567/1-3. 9. The judgment and decree passed by the trial court was rightly reversed by the lower appellate court which has granted a decree to the plaintiff with regard to the 68.200 cents identified as the plaint schedule Item No.1 in the possession of the plaintiff and comprised in Survey No.568/14-1. The said plot has been identified as plot ABCD in Ext.C2(b) plan. The lower appellate court has also fixed the line BC having a length of 172 links as the boundary line dividing the plaint schedule item Nos.1 and 2. The lower appellate court has also granted a perpetual injunction restraining the defendants from interfering with the said 68.200 cents identified as plot ABCD. The findings R.S.A.No.1218 of 2008 7 recorded by the lower appellate court after a re-appraisal of the oral and documentary evidence are pure findings of fact. No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 21st day of January, 2009. V. RAMKUMAR, JUDGE sj