IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 RSA.No. 1286 of 2009() ---------------------- AS.159/2005 of I ADDL. DISTRICT COURT, PALAKKAD OS.962/1998 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------------- BALASUBRAMANIAN, S/O.CHAMIYAR, AGED 54 YEARS, RESIDING AT CHAKKATTUPARAYIL, PALLATHERI AMSOM DESOM, PALAKKAD TALUK. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT/RESPONDENT/DEFENDANT: ------------------------ NARAYANAN, S/O.CHAMIYAR, AGED 50 YEARS, RESIDING AT CHAKKATTUPARAYIL, PALLATHERI AMSOM DESOM, PALAKKAD TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1286 of 2009 -------------------------------------- Dated this the 17th day of December, 2009. JUDGMENT Appellant is aggrieved by the concurrent verdict against him refusing recovery of possession of a small strip of land described as C schedule in the plaint. Appellant and respondent are brothers. It is not disputed that the total extent of 25 cents in R.S.No.3/B6 originally belonged to the mother of contestants and that after the death of mother, the said 25 cents was partitioned among them as per Ext.A1. A schedule in Ext.A1, 11¾ cents was allotted to the share of appellant while an equal extent described in the B schedule of the document was allotted to the respondent. The remainder, 1½ cents was kept in common as there was a small family temple situated in that property. Appellant filed the suit initially for prohibitory injunction alleging attempt on the part of the respondent to trespass into plaint A schedule (plaint B schedule is the 1½ cents kept in common about which there is no dispute). Respondent contended that the allegation of attempt to trespass is not correct and attempt of the appellant is to trap him in a criminal case. He claimed that he is in possession of 11¾ cents allotted to him as B schedule of Ext.A1. In the meantime plaint was amended alleging that during pendency of the suit respondent trespassed into a portion of plaint A schedule and seeking recovery of possession of that portion ( C schedule in the plaint). To the amended plaint, respondent filed additional written statement contending that there was no such RSA No.1286/2009 2 trespass and that he is in possession of the property to which he is entitled as per Ext.A1. He claimed that he had constructed a bore-well in a portion of the property belonging to him and if at all that portion is not belonging to the appellant he is not entitled to value of improvements. In the trial court a commission was taken out to find out the disputed portion of plaint C schedule. Advocate commissioner filed Ext.C1, report. That was remitted to the advocate commissioner and then came Exts.C2 to C3(a), reports and plans. Advocate commissioner was examined as CW1. Appellant and respondent gave evidence as PW1 and DW1, respectively. PW2 is a witness examined by the appellant to prove his possession of the disputed property. Learned Munsiff found that there is no proper identification of the disputed portion in that no properly measured plan was obtained inspite of the fact report was remitted to the advocate commissioner and he had visited the properties several time. Appellant had not taken necessary steps to properly measure the property to declare his title. Consequently the suit was dismissed. First appellate court confirmed the finding. Hence this Second Appeal urging by way of substantial question of law whether the courts below were justified in accepting the challenge made by respondent to the report of advocate commissioner after evidence of appellant was over and whether finding regarding want of proper identification of plaint C schedule is legally correct. Learned counsel contends that there was no challenge in the written statement about identity of the property and that even objection to the report of advocate commissioner came only after evidence of appellant was over. RSA No.1286/2009 3 2. As it now stands suit is for recovery of possession of plaint C schedule on the strength of title claimed by the appellant. It has been held by this Court in Ambujakshy Amma and another v. Gopi and another (1989 (2) KLJ 705) that when the suit is based on title a proper measurement of the property and a plan are essential since title cannot be declared on surmises and conjunctures. It is not disputed that there was no proper measurement of the property as pointed out by the learned Munsiff. Learned Munsiff has also stated that inspite of the report being remitted to the advocate commissioner and his visiting the property several time, appellant had not taken any steps to measure the property properly. 3. It is idle to contend that there was no dispute regarding identity of the property. When respondent claimed that he has not trespassed into any property of appellant and that he is in possession of the property (which according to the appellant takes in the allegedly trespassed area) allotted to him as per Ext.A1, it amounted to denial of title of the appellant over the disputed property. It meant that according to the respondent, the property which the appellant claimed is part of B schedule in Ext.A1 allotted to the share of respondent. That should have alerted the appellant to get a proper plan showing that disputed portion (plaint C schedule) as formed part of A schedule allotted to him as per Ext.A1. Such a plan is not available in this case. Advocate commissioner has reported that in the disputed portion there is a bore-well but the commissioner has not located the exact position of the bore-well. True that RSA No.1286/2009 4 appellant examined PW2 to say that bore-well was constructed by the appellant but contra evidence was given by DW1. It is also seen that side measurements of the disputed property as reported by the advocate commissioner did not tally with the measurements given in Ext.A1. Learned Munsiff found that property stated by the advocate commissioner, ie. the disputed plot of land is not actually the disputed area (plaint C schedule). It in these circumstances that trial court refused recovery of possession on the strength of title, which has been confirmed by the first appellate court. This is a case where appellant failed to take steps to measure the property properly in spite of sufficient opportunity. I do not find any substantial question of law in this appeal requiring its admission. Resultantly, this Second Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks