IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 RSA.No. 232 of 2008() --------------------- AS.91/2004 of PRL.SUB COURT,TRIVANDRUM OS.1986/2000 of I ADDL. MUNSIFF COURT, TRIVANDRUM .................... APPELLANTS/APPELLANTS/DEFENDANTS:- ----------------------------------------------- 1. THANKAMMA, PUSHPAVIHAR, KURUSUMUTTOM PEYAD, THIRUVANANTHAPURAM. 2. SREEKUMAR ALIAS VIKRAMAN PUSHPAVIHAR, KURUSUMUTTOM, PEYAD THIRUVANANTHAPURAM. 3. PUSHPITA ALIAS MOLY, PUSHPITHA VIHAR KURUSUMUTTOM, PEYAD, THIRUVANANTHAPURAM. 4. BIJU, PUSHPAVIHAR, KURUSUMUTTOM PEYAD, THIRUVANANTHAPURAM. BY ADV. SRI.V.PREMCHAND RESPONDENT/RESPONDENT/PLAIANTIFF: --------------------------------------------- SIVANKUTTY, KUSUMOM, KIZHAKAIVILA PAPPANAMCODE, THIRUVANANTHAPURAM. ADV. SRI.K.M.FIROZ FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 232 of 2008 ========================== Dated this the 29th day of January, 2009. JUDGMENT Defendants 1 to 4 in O.S. No. 1986 of 2000 on the file of the First Additional Munsiff's Court, Thiruvananthapuram are the appellants in this Second Appeal. The said suit instituted by the respondent herein was one for fixation of boundary and consequential prohibitory injunction with regard to the plaint schedule property admeasuring 35 cents. The case of the plaintiff was that he obtained title and possession over the plaint schedule property as per Ext.A1 sale deed dated 27.01.1971 executed by Kunjiraman, the father of defendants 2 to 4 and the husband of the 1st defendant. The plaintiff is none other than the nephew of the said Kunjiraman. 2. The suit was resisted by the appellants/defendants contending inter alia that Ext.A1 sale deed was not executed by Kunjiraman and therefore the plaintiff has not derived any title or possession over the plaint schedule property. At the fag end of the trial, the appellants got the written statement amended to incorporate the plea that as per Ext.B1 sale deed dated 27.05.1969 20 cents of property from the larger holding had been sold by Kunjiraman to one R.S.A. No. 232 of 2008 : 2 : Sivanandan and the said Sivanandan as per Ext.B2 sale deed dated 30.06.1973, had transferred back Ext.B1 property admeasuring 20 cents to defendants 2 and 3 who were then minors represented by their father Kunjiraman. 3. On the side of the plaintiff, he examined himself as PW1 and got marked Exts.A1 to A6. On the side of the defendants, the 2nd defendant was examined as DW1 and Exts. B1 and B2 sale deeds were got marked. Exts. C1 and C2 are the report and plan submitted by the Advocate Commissioner deputed by the trial court. 4. The learned Munsiff after trial as per judgment and decree dated 31.05.2004 decreed the suit as prayed for. On appeal preferred by the appellants as A.S. No 91 of 2004 before the Sub Court, Thiruvananthapuram, the learned Sub Judge as per judgment and decree dated 27.11.2007 dismissed the appeal confirming the judgment and decree passed by the trial court. Hence this Second Appeal. The following are the questions of law formulated in the memorandum of Second Appeal:- i. When the vendor in Ext.A1 had executed Ext.B1, which is prior to Ext.A1 and when it is clear that the vendor had no existing right to be alienated, whether the vendor can claim absolute title and possession on the basis of Ext.A1 and can the courts below allow the plaintiff to put up boundary therein. R.S.A. No. 232 of 2008 : 3 : ii. After having allowed the amendment application and after having accepted B1 and B2 in evidence, whether the courts below were right in holding that since the defendants did not take up those contentions in the original written statement, Exts.B1 and B2 cannot be relied upon? Iii. Were the courts below correct in law in allowing the plaintiff to put up the boundary without deciding the question of title, especially after allowing the amendment? iv. When the description of properties in Ext.A1 and B1 unequivocally prove overlapping, was the trial court justified in decreeing the suit without framing issues regarding identity of property and the question of title? v. Whether the courts below justified in decreeing the suit without properly identifying the properties covered by Exts.A1, B1 and B2? 5. I heard the learned counsel appearing for the appellants/defendants who made the following submissions before me in support of the appeal:- Although belatedly, the appellants had produced Exts.B1 and B2 sale deeds which will go to show that Kunjiraman, the father of defendants 2 to 4 had sold 20 cents of land as per Ext.B1 sale deed dated 27.05.1969. It was thereafter that Ext.A1 sale deed dated 27.01.1971 was allegedly executed by Kunjiraman. After Ext.B1 sale deed by which 20 cents of property was sold by Kunjiraman to one Sivanandan, Kunjiraman could not have assigned the plaint schedule property admeasuring 35 cents to the plaintiff as per Ext.A1 sale deed R.S.A. No. 232 of 2008 : 4 : without overlapping of the properties. Even though Ext.A1 sale deed is in respect of the plaint schedule property situated towards the eastern extremity of a larger extent, Ext.B1 is in respect of 20 cents situated towards the northern extremity of the said larger extent and therefore overlapping of the two properties is inevitable. The courts below have not identified the plaint schedule property and have also not appreciated the contentions of the appellants. The appellants will stand to loose their property as a result of denial of an opportunity to substantiate their contentions based on Exts.B1 and B2 sale deeds. 6. I am afraid that I cannot agree with the above submissions. An extent of one acre of land was acquired by Kunjiraman, the late husband of the 1st defendant and the father of defendants 2 to 4 as per Ext.A6 sale deed dated 07.04.1950. It is true that as per Ext.B1 sale deed dated 27.05.1969, Kunjiraman had sold 20 cents of land from out of the said one acre to one Sivanandan. But the said property is located towards the northern extremity of the one acre of land and is lying in the east-west direction. As per Ext.B2 sale deed executed by Sivanandan, on 30.06.1973, he had conveyed Ext.B1 property back to defendants 2 and 3 who were then minors represented by their father, the very same Kunjiraman. The appellants have not been able to R.S.A. No. 232 of 2008 : 5 : establish before the courts below that the plaint schedule property sold by Kunjiraman to the plaintiff as per Ext.A1 sale deed dated 27.01.1971 had overlapped part of Ext.B1 property admeasuring 20 cents. It is quite possible that Ext.B1 property sold towards the northern extremity of one acre of land did not extend up to the eastern extremity of the larger property in which case the plaint schedule property lying at the eastern extremity could have been carved out and sold to the plaintiff excluding Ext.B1 property. In the absence of any positive evidence adduced by the appellants either by getting the report and plan of the Commissioner remitted to substantiate their contention or by taking out another commission to identify Ext.B1 property, it is impermissible for them to raise a contention that Ext.A1 sale deed could not have been executed after the sale of 20 cents of property as per Ext.B1. That apart, the property covered under Ext.B1 was given back to the appellants as per Ext.B2 transfer by Sivanandan. The commission which was taken out by the plaintiff was a survey commission and the Advocate Commissioner was assisted by the Taluk Surveyor of Neyyattinkara. He has very clearly identified the plaint schedule property as plot 'CDEF' in Ext.C1 plan. The said plot lies towards the eastern extremity of the larger extent of one acre R.S.A. No. 232 of 2008 : 6 : identified as plot 'ADEI'. The boundary has been fixed along the line 'CF' demarcating the plaint schedule property from the rest of the property lying on the west. The findings recorded by the courts below 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 Second Appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 29th day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 232 of 2008 : 7 :