IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 RSA.No. 149 of 2010() --------------------- AS.26/2007 of III ADDL.SUB COURT, KOZHIKODE OS.582/2004 of 1ST ADDL.MUNSIFF'S COURT, KOZHIKODE. .................... APPELLANTS IN RSA/APPELLANTS IN AS 26/2007/PLAINTIFFS IN OS 582/2004: ------------------------------------------------------------------------------------------------------------------- 1. KALATHILMEETHAL RAMAN NAIR, 84 YEARS, THAMARASSERY AMSOM, DEOSM, KOZHIKODE TALUK. 2. KALATHILMEETHAL RAJAN, AGED 52 YEARS, S/O.RAMAN NAIR, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK. 3. MACHILADATH USHA, AGED 44 YEARS, W/O.RAJAN, RESIDING AT KALATHILMEETHAL, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK. 4. PAPPINIPARAMBATH SHYNI, AGED 27 YEARS, D/O.NARAYANAN NAIR, RESIDING AT KALATHIMEETHAL THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK. BY ADVS. SRI.JOSEPH A.VADAKKEL, SRI.GEORGE KARITHANAM VARGHESE, SRI.JOSE KURIAKOSE (VILANGATTIL). RESPONDENT(S) IN RSA/ RESPONDENT IN AS 26/2007/DEFENDANT IN O.S.582/2004: -------------------------------------------------------------------- MUTHUVANAPARAMBIL PENUTTY AMMA, 73 YEARS, D/O.KANARAN NAIR, THAMARASSERY AMSOM DESOM, KOZHIKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------- R.S.A No. 149 of 2010 -------------------------- Dated this the 6th July, 2010 J U D G M E N T Undaunted by the concurrent findings against them, the plaintiffs in O.S No.582 of 2004 before the First Additional Munsiff's Court, Kozhikode have come up in appeal before this Court. 2. The suit was one for recovery of possession and permanent prohibitory injunction. Plaintiffs claimed to be the owners in possession and enjoyment of plaint A schedule property. According to them, they obtained plaint A schedule property as per Ext.A1 partition deed No.1174/67. Plaint B schedule was allotted to the defendant as per the same partition deed. Item No.9 in the partition deed is the plaint A schedule property and Item No.10 in the partition deed is the plaint B schedule property. At the time of partition, boundaries were put up. It is pointed out that plaint A schedule lies at higher level than B schedule property. It is averred in the plaint that a portion of A schedule property was allotted to plaintiffs 2 and 5 by the 1st plaintiff as per Ext.A2 R.S.A No. 149 of 2010 2 settlement deed No.2548/1995 dated 1.8.1995. The said property is shown as Item No.2 in plaint A schedule. A portion of property was given to 1st plaintiff 's son and his wife as per document No.25/49 who in turn assigned the property to the 4th plaintiff as per Ext.A3 document No.1875/2004 dated 26.5.2004. The said property is shown as Item No.3 in plaint A schedule. The complaint was that defendant had trespassed into a portion of plaint A schedule property on 1.11.1996 in which he has put up a building. The said portion is described as "C" schedule property. According to the plaintiffs, defendant had filed a suit as O.S No.161/2004 against the plaintiffs 1 and 2 complaining that plaintiffs had trespassed into her property. Pointing out that defendant has no right to C schedule property, plaintiffs sought recovery of possession of the same and consequential injunction. 3. Defendant resisted the suit. She admitted that the properties were partitioned and set apart as claimed in the plaint. According to her, even before partition deed as per verumpattam kychit of 1962 defendant's husband was R.S.A No. 149 of 2010 3 in possession of 11 1/2 cents. Defendant put up a house therein where defendant and her family resides. It is admitted by the defendant that in the partition deed the properties set apart had definite boundaries. The allegations in the plaint are untrue. It is pointed out that property of the plaintiff was well demarcated by the boundaries and the claim unfounded. The defendant contended that she has not trespassed into and made any illegal construction in the plaintiffs property. Hence she prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and Exts.A1 to A4 (a)were marked from the side of the plaintiffs. Defendant had examined DW1 and Exts. B1 to B8 were marked. Exts.C1, to C3 (a) are the commission report and plan. 5. The courts below on the basis of evidence found that the story of trespass is untrue and also found that the properties are lying within well demarcated boundaries. The courts below referred to the commission report and R.S.A No. 149 of 2010 4 found that the plaint C schedule property owned by the plaintiff has well demarcated boundaries and lies well separated from the defendant's property. The judgment of the trial court clearly indicates that there is visible boundary through out the area 'EFGHIJK' marked in Ext. C3 (a) plan and the case of the defendant that the properties situates in higher level was allotted to the plaintiff and property situates in lower level were allotted to defendant is probabilised. 6. The commission report and plan were made available for perusal. It shows that there are distinct boundaries separating the plaint schedule property owned by the plaintiffs from other properties. The court below has also taken the view that on measurements of the plaintiffs property even if it is found that the extent is less that by itself it does not entitle her to get any relief in the suit since the boundaries are well laid and partition was made on the basis of the boundaries. The view taken by the court below seems to be in accordance with the well settled principles that usually identification of properties is made R.S.A No. 149 of 2010 5 with reference to its boundaries. 7. In appeal the appellate court reconsidered the evidence on record and found that the plaint A schedule lies with definite boundaries and lies on a higher level than the B schedule property. 8. Learned counsel appearing for the appellants pointed out that defendant was in possession of excess land. It is under those circumstances the suit was laid. There is no merit in the above contention also. Even assuming that the defendant had her possession excess land that does not mean that the excess land must belong to the plaintiff. When the boundaries are clear, distinct and well laid, the reliance placed on extent cannot be countenanced. The lower appellate court has again considered the matter in detail and found that the claim of plaintiffs is not correct. The lower appellate court has also observed that the boundaries were put up at the time of partition. 9. The appellate court also found that the offending alleged construction by the defendant was in the year R.S.A No. 149 of 2010 6 1996. The suit was laid in 2004. No explanation whatsoever was offered by the plaintiffs for the inordinate delay of 8 years in approaching the court if in fact there was a trespass into their property. It was the above facts which had persuaded the courts below to hold against the plaintiffs and findings are fully justified. 10. No interference is called for by this Court since it is not shown that findings of the courts below are either perverse or unwarranted by the evidence on record. No substantial questions of law arose for consideration in this Appeal. The appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE ma R.S.A No. 149 of 2010 7 R.S.A No. 149 of 2010 8