IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 RSA.No. 427 of 2010() ------------------------------ RFA.58/2004 of II ADDL. DISTRICT COURT, KOLLAM OS.853/1995 of PRL. MUNSIFF COURT, KOLLAM .................... APPELLANTS/APPELLANTS 2 TO8/PLAINTIFFS 2 TO 8 ------------------------------------------------------------------------------ 1. SUVARNAKUMAR, S/O.LATE SUKUMARAN, SUKUMARA MANDIRAM, MANGAD CHERRY, MANGAD VILLAGE, KOLLAM TALUK. 2. SUDHEESHNAKUMAR,S/O.LATE SUKUMARAN, -DO-. -DO-.(WRONGLY NOTED IN THE RFA JUDGMENT AS SUDHEESH KUMAR) 3. SUPRABHA (SURAJA KUMARI), D/O.LATE SUKUMARAN, DO. DO. 4. SUPRIYA KUMAR, S/O.LATE SUKUMARAN, DO. DO (WRONGLY NOTED IN THE RFA JUDGMENT AS D/O.LATE SUKUMARAN) 5. SUKHILAL, S/O.LATE SUKUMARAN, DO. DO. (WRONGLY NOTED IN THE RFA JUDGMENT AS D/O.LATE SUKUMARAN) 6. SULABHA, D/O.LATE SUKUMARAN, DO. DO. 7. SETHUKUMARI, D/O.LATE SUKUMARAN, DO. DO. BY ADV. SRI.S.SANTHOSH KUMAR, SMT.P.LISSY JOSE. RESPONDENT/RESPONDENT/DEFENDANT ------------------------------------------------------------- AJAYAGHOSH, KOCHUMEDAYIL VEEDU, MANGAD CHERRY, MANGAD VILLAGE, KOLLAM TALUK. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/05/2010, ALONG WITH R.S.A. NO.489 OF 2010, THE COURT ON 04/06/2010 DELIVERED THE FOLLOWING: RSA.No. 427 of 2010 ORDER ON I.A. NO.1022/2010 IN R.S.A. NO.427/2010 DISMISSED 04/06/2010. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. Nos. 427 & 489 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of June, 2010. JUDGMENT Two suits, namely, O.S.834 of 1994 and 853 of 1995 were disposed of by a common judgment. O.S. 834 of 1994 was filed by the respondents herein and the appellants were the defendants in the suit. O.S. 853 of 1995 was filed by the appellants and the respondents are the defendants therein. After trial, the trial court decreed O.S. 834 of 1994 and dismissed O.S. 853 of 1995. Against the judgment and decree in O.S. 834 of 1994 the appellant preferred R.F.A. 57 of 2004 and against the judgment and decree in O.S.853 of 1995, the plaintiffs, who are appellants herein, filed R.F.A. 58 of 2004. The lower appellate court dismissed both the appeals. R.S.A. 489 of 2010 is directed against the judgment and decree in R.F.A. 57 of 2004 and R.S.A. 427 of 2010 is against the judgment and decree in R.F.A. 58 R.S.A. Nos. 427 & 489/10. 2 of 2004. The parties and facts are hereinafter referred to as they are available in O.S. 834 of 1994, since that was considered as the leading case by the trial court. 2. O.S. 834 of 1994 was a suit for fixation of boundary. That suit was filed by the respondents herein. According to the plaintiffs, plaint A schedule property, which has an extent of 1.3 acres belonged to them and was in their absolute possession and enjoyment. Plaint B schedule property, which has an extent of 3 cents belonged to the first defendant and late Sukumaran. The property owned by the defendants in R.Sy. No.347/1, 347/2 and 347/3 consists of 51 cents is situate on the northern side of plaint A schedule property. There was a well demarcated boundary, kayyala, and fence separating the plaint schedule property from that of the defendants. The plaintiffs would allege that 15 cents from the eastern side of the property on the northern side belong to the defendants was sold and that did not lie separated from the property owned and possessed by R.S.A. Nos. 427 & 489/10. 3 the defendants. Boundary that separated the plaint schedule property from that of the defendants was destroyed and it is necessary to put up the boundaries. It is alleged that the boundaries shown were clandestinely removed by the defendants. As per the re-survey, the extent of plaint A schedule property is 1.9 acres. When the plaintiffs tried to put up a compound wall along their boundaries, it was objected to by the defendants. Hence the suit. 3. The suit was resisted by the defendants. They contended that the suit was bad for non-joinder and mis-joinder of parties. They disputed the description of plaint A and B schedule. According to them, the plaintiffs do not have title over the entire plaint A schedule property. It was the plaintiffs who had destroyed the northern and western boundaries and the suit was laid with an intention to annex a portion of the property belonging to the defendants. It is true that the plaintiffs had got 1.3 acres of R.S.A. Nos. 427 & 489/10. 4 land, but out of that 3 cents on the western side in north south direction was sold to late Sukumaran, the husband of the first defendant and the father of the other defendants in the year 1996. There were survey stones and fence separating the properties. The allegations made against the defendants are without any basis and lack bonafides. It was the plaintiffs with the intention of annexing a portion of defendants' property who attempted to put up a compound wall, which was objected to by the defendants. They pointed out that 51 cents of land adjacent to the defendants' property was alienated by the plaintiffs. It was also pointed out that there was a six feet wide pathway along the western sides of plaint A and B schedule properties and the property of Indira, which is situated on the southern side of plaint A schedule property and that the defendants and their predecessors were using the said pathway for the last more than 40 years. That leads to the Panchayat road on the southern side. After the re-survey in the year 1971 a R.S.A. Nos. 427 & 489/10. 5 compound wall was constructed on the eastern side of the compound leaving a three feet width property for widening the said pathway. The three cents of property purchased by Sukumaran situates on the eastern side of that pathway. The defendants are in possession of a total of 9 cents of land including the three cents purchased from the first plaintiff. On the basis of these contentions, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and the documents marked as Exts.A1 to A12 from the side of the plaintiffs. The defendants had D.Ws. 1 and 2 examined and Exts.B1 to B7 marked. Exts. C1 to C3 are Commissioner's plan, mahazar and report. On an appreciation of the evidence in the case, the trial court came to the conclusion that the claim put forward by the plaintiffs remained unsubstantiated and therefore decreed the suit R.S.A. Nos. 427 & 489/10. 6 filed by the respondents, and dismissed the suit filed by the appellants. 5. On appeal, the lower appellate court found no reason to differ from the trial court and confirmed the judgment and decree of the trial court. 6. Learned counsel appearing for the appellants pointed out that the courts below have erred both on facts and in law in dismissing the suit filed by the appellants. It is contended that the property of the defendants had not been measured and in the absence of that measurement, a decree ought not to have been granted. It is pointed out that the suit was one for laying of boundary and therefore the measurement of the property of both the plaintiffs and defendants was absolutely necessary. A reading of the Commission report will clearly show that the plan prepared by the Commissioner cannot be accepted. In the light of the contentions taken by the defendants that the pathway had been widened it is all the more necessary that the property R.S.A. Nos. 427 & 489/10. 7 ought to have been measured. The reliance placed by both the courts below on the Commission report and plan are totally unjustified. 7. Though the arguments may look very attractive, it can be seen to be without any basis whatsoever. 8. The plaintiff laid claim to 1.3 acres of land. The evidence clearly shows that out of the extent three cents was sold to Sukumaran, the late husband of the first defendant. Plaint C schedule property situate on the southern side of plaint A schedule property, which belong to the defendants. The trial court noticed that there is no dispute regarding the fact that there is no clear boundary separating plaint A and B schedule properties and the dispute was confined to the pathway situate on the western side of plaint A schedule property. The trial court has come to the conclusion that plaint B schedule property was purchased to widen the pathway. It is also found that earlier R.S.A. Nos. 427 & 489/10. 8 a kayyala separated the school compound and plaint A and B schedule properties. Later when the school authorities constructed the boundary wall on the eastern side, they left three feet land for the purpose of the pathway. The court below found that going by the documents produced by both sides, the plaintiffs had 40.75 ares of land in survey No.347/4, 2.25 ares in Sy. No.347/5 and 1.10 ares in Sy. No.347/6 of Mangadu Village. On the other hand, the defendants had 4.05 ares of land in Sy. No.347/2, 4.15 ares in Sy. No.347/3, 2.00 ares in Sy. No.347/2 and 10.50 ares in Sy. No. 347/1 of the same Village. The trial court noticed that there is no challenge to the resurvey plan, which has become final. 9. The Commissioner was examined as D.W.3. He has spoken in terms of his report and plan. Reliance was placed by the plaintiffs on Ext.C3 plan and they wanted the boundary to the fixed on the basis of the said plan. The defendants disputed the said claim on the basis that Ext.C3 R.S.A. Nos. 427 & 489/10. 9 plan does not reflect the true state of affairs. The trial court on an appreciation of the materials before it came to the conclusion that the claim to a pathway made by the defendants is true. P.W.4, the Taluk Surveyor had deposed before court that Ext.C3 plan was prepared on the basis of re-survey plan. The lower court found that it is so. The trial court on the basis of the evidence an on an evaluation of the same came to the conclusion that the western and northern boundary shown in Ext.C3 plan can be accepted. Finding that the claim made by the plaintiffs in O.S.834 of 1994 had been established, the trial court granted a decree in their favour. 10. The lower appellate court on an independent evaluation of the evidence came to the same conclusion as the trial court did. 11. Before the lower appellate court, it appears that the contention appears to be that the trial court was not justified in accepting the case put forward by the plaintiffs in R.S.A. Nos. 427 & 489/10. 10 O.S. 834/1994. The respondents on the other hand contended that there was a specific boundary between plaint A and B schedule properties and the boundaries were constructed on the basis of re-survey done in 1971. The appellants have destroyed the then existing boundary with the intention to encroach into their property. The lower appellate court noticed that no objection had been taken to the re-survey plan by the appellants. The court below also found that Ext.C3 plan was prepared by the Commissioner with the help of the Taluk Surveyor on the basis of the re- survey. On an independent evaluation of the evidence, the lower appellate court came to the conclusion that the trial court was fully justified in accepting Ext.C3 plan. Therefore the lower appellate court too found in favour of the respondents before it. 12. It could be seen that the decision of the courts below are based on appreciation of evidence adduced in the case and are pure questions of fact. No question of law, R.S.A. Nos. 427 & 489/10. 11 much less any substantial question of law arises for consideration in these Second Appeals. The second appeals are without merits and accordingly they are dismissed in limine. P. BHAVADASAN, JUDGE sb. R.S.A. Nos. 427 & 489/10. 12 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. Nos. 427 & 485 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 04.06.2010