IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 RSA.No. 204 of 2010() --------------------- AS.115/2005 of DISTRICT COURT, PATHANAMTHITTA OS.438/2000 of MUSNIFF COURT,ADOOR .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------------------------------------------ VASUDEVAN NAIR ( D I E D) 1. SREEKALA DEVI, D/O. VASUDEVAN, AGED 47 YEARS, KATTADIYIL VEETTIL, THONALLOOR MURI, PANDALAM VILLAGE, ADOOR TALUK. 2. MADHUSUDHANAN PILLAI, S/O. G.NEELAKANDAN NAIR, AGED 57 YEARS, KATHADIYIL VEETTIL, THONALLOOR MURI, PANDALAM VILLAGE, ADOOR TALUK. BY ADVS. SRI.A.MOHAMED MUSTAQUE, SRI.T.REMESH BABU SMT.C.M.NIRMALA RESPONDENT(S): RESPONDENT/PLAINTIFF: -------------------------------------------------------------------- VASU PILLAI RADHAKRISHNA PILLAI, S/O. VASUPILLAI, CHITTADIYIL VEETTIL, ULLANNOOR MURI, KULANADA VILLAGE. BY ADVS. SRI.BECHU KURIAN THOMAS SRI.ROSHIN D.ALEXANDER. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------- RSA No.204 of 2010-G ------------------------------------- Dated 21st June 2010 Judgment Undaunted by the concurrent findings against them, the defendants have come up in appeal. The parties and facts are hereinafter referred to, as they are available before the Trial Court. 2. The suit was one for recovery of possession and for mandatory and prohibitory injunction. The plaintiff claimed that he had got 42.80 ares (106 cents) of landed property along with excess land, which he obtained as per Ext.A1 sale deed dated 30.12.1994. Four cents out of the said extent, were utilised for a private road in north-south direction, having a width of 12 feet through the middle of the plaint schedule property. He pointed out that he sold 80½ cents on both sides of the road to strangers. Defendants 2 and 3 purchased 25 cents of land on the eastern side of the way on 29.01.1996, which is B RSA 204/10 2 schedule property and the balance 21½ cents with 4 cents of excess land, which is shown as plaint A schedule property, is in the possession and enjoyment of the plaintiff. The allegation in the plaint is that the defendants have put up a rubble wall on the western, northern and southern sides of the property and have constructed a residential building thereon. The balance extent of plaint A schedule property lies on the western side of the plaint B schedule property and the pathway. It is stated that the defendants have trespassed into a portion of the plaint schedule property and therefore, a suit became necessary. 3. The defendants resisted the suit. They admitted that the plaintiff had acquired an extent of 1.06 acres of land, but they were unaware of the fact that he had four cents of excess land. The defendants also admitted that 25 cents of land was assigned to them in 1996 and 80½ cents to others. They admitted that the plaintiff was in possession of 21½ cents of land and 9 cents of land as excess land and there was no such property available to RSA 204/10 3 the plaintiff to assign land to the defendants. They claim that the entire property owned by the plaintiff has been sold and now, the plaintiff is not in possession of any extent of land. It was also submitted that defendants 2 and 3 are residing far away from the plaint schedule property. They denied the allegations in the plaint and pointed out that the plaintiff is not entitled to any reliefs in the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and document marked as Ext.A1 from the side of the plaintiff. The defendants did not examine any witness and were satisfied with the production of Ext.B1 document. Exts.C1 to C7 are the Commissioner's report and plan. CW1 was examined as court witness. 5. The Trial Court, on an evaluation of the evidence in the case, came to the conclusion that the plaintiff has succeeded in establishing the case against the defendants and accordingly a decree was granted in his favour. RSA 204/10 4 6. The defendants carried the matter in appeal as AS No.115/05 before the District Court, Pathanamthitta. The first Appellate Court, after independent evaluation of the evidence, concurred with the judgment of the Trial Court and dismissed the appeal. The said judgment and decree are assailed in this Appeal. 7. The learned counsel for the appellants stressed one point for consideration by this Court. The plaintiff had no property in the area and therefore, the decree cannot be sustained. It is also pointed out that the appellants had produced their title to the property, but that was not considered by the lower Appellate Court. It is also pointed out that there is no property in the area now owned by the plaintiff and the courts below ought not have granted a decree in his favour. 8. The appellants seem to have produced the encumbrance certificate at the appellate stage. But, the lower Appellate Court was not inclined to act upon the said certificate. The Trial Court has considered the evidence in RSA 204/10 5 detail. One canot omit to note that the Commissioner has filed a detailed report and plan, in which it is shown that the property is now possessed and owned by the defendants. It does not appear that the defendants have filed any objection to the Commissioner's report. The courts below mainly placed reliance on the Commissioner's report and found that there is no boundary as claimed by the plaintiff. The Commissioner appointed in the case, surveyed the property with the help of the surveyor and the boundary, separating plaint A schedule from B schedule, is determined as VT line and the defendants have no right to claim VTT1 plot. The Commissioner has also noticed that the property owned by the defendants extend only upto V.T.line. There was no attempt from the side of the defendants to adduce any evidence to show that the Commissioner's report was not acceptable. 9. Even before the Court below, the defendants had a contention that the plaintiff did not have any property in the locality. But, as already noticed, they did not choose RSA 204/10 6 to adduce any evidence in support of the said contention. Except marking Ext.B1 sale deed executed by the plaintiff in favour of third parties, no other documents were marked by the defendants. It is also significant to notice that the defendants had purchased the property in 1996. But, they did not produce even their documents of title to the property. In fact, there was no evidence at all from the side of the defendants to show that the claim of the plaintiff was untrue. It was in this context that both the courts wre constrained to lay considerable reliance on the Commissioner's report and decree the suit in favour of the plaintiff. The mere fact that the lower Appellate Court has not dealt with the encumbrance certificate produced before the said Court by the defendants, does not advance the case of the defendants at all. Nothing prevented them from producing the encumbrance certificate or any other documents before the Trial Court to prove that the claim of the plaintiff was false. They did not even produce their own title deed to the property, claimed to be purchased by them. RSA 204/10 7 Both the courts have considered the evidence in considerable detail and have come to a conclusion. The findings of the courts below are based on evidence on record and it is a finding of fact, which does not warrant interference by this Court. No questions of law arise for consideration in this appeal. The appeal is without merits and it is accordingly dismissed. The records may be returned forthwith. P.BHAVADASAN, JUDGE sta RSA 204/10 8