Appukuttan vs Sheeja on 1 December, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 838 of 2007()


1. APPUKUTTAN, S/O. GOVINDAN,
                      ...  Petitioner

                        Vs



1. SHEEJA, D/O. PUSHPAMMA,
                       ...       Respondent

2. DAS, S/O. BALAKRISHNAN, AGED 40 YEARS,

3. PONNAMMA, W/O. SEKHARAN,

4. PUSHPAMMA, D/O. JANAKI,

5. SHAJIKUMAR, S/O. SOMAN,

                For Petitioner  :SRI.K.RAMAKUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :01/12/2007

 O R D E R
                   M.SASIDHARAN NAMBIAR, J.
                     ...........................................
                     R.S.A.No. 838              OF       2007
                     ............................................
      DATED THIS THE              1st DAY OF DECEMBER, 2007

                                JUDGMENT

Plaintiff in O.S.1035 of 1999 on the file of Additional

Munsiff Court, Neyyattinkara is the appellant. Defendants are

respondents. Appellant instituted the suit seeking a decree for

declaration of title and possession and a consequential

permanent prohibitory injunction. Plaint schedule property is 3

= cents in Survey No.399/1 of Chenkal Village. The plaint

schedule property admittedly originally belonged to Mayitti

Subramanian. It is part of ten cents. Subramanian mortgaged

1.40 cents in favour of Emili Janardhanan and that mortgage

right was assigned in favour of Sadasiva Panicker. Under Ext.A2

assignment deed of 1960, he transferred it to Vasudeva

Panicker. Appellant claims title and possession to the property

under Ext.A1 sale deed of 1978. Appellant contended that he

has title to the plaint schedule property and respondents have no

right over the same. Contending that they trespassed into the

property on 7.1.1999 and constructed a shed and the compound

wall and the shed so constructed a decree for demolition of the

structures and recovery of possession was also sought. Suit was

RSA 838 OF 2007 2

resisted by respondents contending that plaint schedule property

is not the property obtained by appellant under Ext.A1 or his

predecessor under Ext.A2. It was contended that Subramanian

divided the property under Ext.A4 in 1150 and Somanathan was

alloted ten cents in Survey No.391/1 and it was assigned to

Kesava Nadar and respondents are in possession of the property

and appellant is not entitled to the decree sought for.

2. Learned Munsiff, on the evidence of PWs 1 and 2,

Exts.A1 to A17, B1 to B10 and C1 and C2 found that appellant

did not succeed in establishing that plaint schedule property is

the property obtained under Ext.A1 sale deed. Learned Munsiff

found that Commissioner has identified the property covered

under Ext.A1 and A2 as plot A5, A7 AQ having an extent of 3

cents and 500 Sq.links and plaint schedule property which is

claimed by appellant is plot A1, A3(a) A91 and it is not the

property covered under Ext.A1 and therefore appellant has no

title to the property. The suit was dismissed. Appellant

challenged the judgment before Sub Court, Neyyattinkara in

A.S.195 of 2002. Learned Sub Judge, on reappreciation of

evidence, confirmed the findings of learned Munsiff and

RSA 838 OF 2007 3

dismissed the appeal. It is challenged in the second appeal.

3. Learned counsel appearing for appellant was heard. The

argument of the learned counsel is that when there is dispute

with regard to extent and boundaries, property is to be fixed

with reference to the boundaries as held by this court in

Kumaran Krishnan V. Ulahannan Mathai (1957 KLT 42) and

courts below should have found that appellant has title to the

plaint schedule property.

4. On hearing the learned counsel, I do not find any

substantial question of law involved in the appeal. True, when

there is a dispute with regard to the extent and boundaries,

ordinarily property is to be fixed with reference to the

boundaries. It is not disputed that if the property covered under

Ext.A1 is identified with reference to the boundaries shown in

Ext.A1, it could only be plot A5, A7 AQ in Ext.C2(a) plan and

cannot be plot A1, A3 A91. Therefore even if the property is

identified with reference to the boundaries shown in Ext.A1, it

will not establish title of appellant to the plaint schedule

property. Courts below on the evidence rightly found that the

property claimed under Ext.A1 by appellant is not the plaint

RSA 838 OF 2007 4

schedule property and therefore he is not entitled to the decree

for declaration of title.

Appeal is dismissed in limine.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-