IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 815 of 2009()
1. DEVARAN RAVEENDRAN
... Petitioner
Vs
1. VISWANATHAN A.V.SUKUMARADAS
... Respondent
2. PONMANI, D/O.JACOB,
3. MADAN KUNJAN
4. KUNJAMMA, D/O. ARTHA, SUDHA BHAVAN
5. M.K.KUMAR
6. SOUDARA RAJAN
7. PUSHPARAJAN
8. KRISHNA KUMARI
9. SREEKUMARI
10. A.SUDHAKARAN, S/O.PONMANI
11. P.SAILAJA
12. P.SUJATHA
For Petitioner :SRI.SHABU SREEDHARAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :10/02/2010
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.815 of 2009
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Dated this the 10th day of February, 2010.
JUDGMENT
Appellant, unsuccessful in the courts below in getting declaration of title
and possession claimed by him has preferred this Second Appeal. According to
the appellant suit property originally belonged to his grandmother as per a gift
deed of the year 1117 and she, in 1124 executed Ext.A3, mortgage deed
(marked in the first appeal) in favour of mother of appellant who in turn assigned
her right as mortgagee to the appellant in the year 1984. Therefrom appellant
claimed to be in possession of the suit property. He claimed that on the west of
suit property there is a mud wall but there are no defined boundaries on other
sides and hence the suit for declaration of title and possession and fixation of
boundary. Respondent No.2 who contested the suit claimed that appellant has
no right or possession over the suit property and that documents relied by the
appellant are not valid and not binding on respondent No.2. He disputed the
descriptions in the plaint schedule. He admitted that there was a gift deed in
favour of the grandmother of appellant in 1117 but claimed that one Madan
Mallan had filed O.S.No.376 of 1119 challenging that gift deed and obtained a
favourable decree. In appeal at the instance of the grandmother of appellant,
that case was remanded to the trial court . Then there was a compromise
between parties to that suit and the defendants in that suit were given one acre
as per assignment deed No.1411 of 1950. Mother of appellant executed Ext.B1,
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partition deed No.2274 dated 17.10.1973. According to respondent No.2,
appellant has no right, title or interest over the suit property and the mother of
appellant has got right and possession only of 25 cents as per Ext.B1. Out of
the said 25 cents, 21 cents has been assigned to the husband of respondent
No.2, and on the death of husband of respondent No.2 she is in possession
and enjoyment of the said 21 cents. Respondent No.2 claimed that she is in
possession of total of 77 = cents including the 21 cents assigned to the husband
of respondent No.2. Courts below found that there is no proper identification of
the property and dismissed the suit. Hence the Second Appeal.
2. Ext.A1 is the photocopy of assignment deed No.6086 of 1984
executed on the strength of Ext.A3, mortgage deed No.6506 of 1124. Ext.A1
refers to 16 cents being a portion of larger extent. Courts below found that
description of property in the plaint schedule did not tally with descriptions in
Ext.A1. Advocate commissioner has submitted Exts.C1 and C1(a), report and
plan. It is seen from Ext.C1 that disputed property was identified by the
commissioner (only) as shown by the appellant (plot EFGHIJKPQR). As per
Exts.C1 and C1(a) on the east of that property it is property in possession of
one Jeevanayakam. But, plaint schedule description is as if property on the
west is of Jeevanayakam. As per Exts.C1 and C1(a), on the south of property of
said Jeevanayakam is the property of Kunjamma. But in the plaint schedule
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southern boundary is stated as property of Kunjamma. As per Exts.C1 and C2
(a) on the west of disputed property (as shown by the appellant) it is the
property of Sukumaradas. But in the plaint schedule it is stated as the property
of Jeevanayakam. As per Exts.C1 and C1(a) on the north of disputed property
it is the property of Jayaraj purchased from Saraswathi. But, plaint schedule
description is as if property on the north is of one Sivadas. Respondent No.2
claimed right over the disputed property as per Exts.B1 to B3 and B5. PW1,
advocate commissioner has stated that the property claimed by respondent No.2
as per the said documents and the property claimed by the appellant are the
same. Courts below after referring to the oral and documentary evidence and
report and plan prepared by the advocate commissioner came to the conclusion
that identity of the property will not be established.
3. It is contended by learned counsel for appellant that Ext.A3 marked
in the first appellate court would show that the survey number of the disputed
property tallied with the survey number stated in Ext.A3. But in a suit of this
nature where prayer is for declaration of title and possession and fixation of
boundary, merely based on survey number alone identification of the property
will not be answered. Courts below have referred to the evidence and come to
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the conclusion that identity of the property is not established. That is a finding
of fact based on evidence on record. I do not find any substantial question of
law involved in this Second Appeal requiring its admission.
Resultantly Second Appeal is dismissed in limine.
I.A.No.1766 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks
