IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1240 of 2009()
1. OMANA AMMA, D/O.THANKAMMA
... Petitioner
Vs
1. CHANDRAMOHANAN, S/O.KRISHNAN,
... Respondent
For Petitioner :SRI.P.PARAMESWARAN NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :07/12/2009
O R D E R
THOMAS P JOSEPH, J.
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R.S.A.No.1240 of 2009E
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Dated this 07th day of December, 2009
JUDGMENT
Appellant sued respondent for a decree for fixation of boundary
and prohibitory injunction describing the property belonging to him in
the plaint A schedule as 2 cents acquired as per Ext.A1, sale deed
dated 19-10-1985. To prove his entitlement for the said 2 cents
appellant also produced Exts.A2 and A3, receipts for payment of
revenue. Plaint B schedule according to the plaintiff, is the 7 cents
belonging to the respondent and lying adjascent to the plaint A
schedule. Appellant wanted boundary between the two properties to
be fixed and on the apprehension that respondent might trespass into
the plaint A schedule, prayed for a decree for injunction also. Learned
Munsiff found that as per the measurement taken by the Advocate
Commissioner with the assistance of Taluk Surveyor, entitlement of
appellant is only for 1.903 cents and accordingly granted fixation of
boundary along XY line in Ext.C1(a). The prayer for injunction was
disallowed since trial court found that appellant has no apprehension
of trespass. First appellate court has confirmed finding of the trial
court. Hence the second appeal raising by way of substantial
questions of law as to whether trial court is correct in appreciating the
commission report as a sole proof for determining right of the parties
to hold the extent of land and whether the registered document is an
R.S.A.No.1240 of 2009 2
authentic document in determining extent of the land?. It is contended
by learned counsel that evidence on record would show that
respondent is in possession of more extent than to which he is entitled
and in that circumstance courts below are not justified in holding that
entitlement of the appellant is only for 1.903 cents.
2. In fact a reading of the plaint would show that there is no
dispute regarding title or possession between the appellant and the
respondent and the appellant wanted only fixation of boundary in
between the properties belonging to him and respondent. Advocate
Commissioner has measured the property with the assistance of the
Taluk Surveyor making use of the relevant documents and on
measurement it has been found that the entitlement of the appellant,
notwithstanding the extent of 2 cents stated in Ext.A1 is only 1.903
cents. It has come in evidence that appellant has another item of land
adjoining the disputed property on its north and west and that entire
property is lying as a single plot. Trial court observed that the
shortage in extent found on measurement as against the extent stated
in Ext.A1 is only negligible. Appellant has no case that respondent
trespassed into any portion of her land. It is true that on measurement
respondent was found to be holding 2.44 cents in excess of his
entitlement. But that does not mean that respondent has trespassed
into the property of appellant. On the available evidence trial court
R.S.A.No.1240 of 2009 3
found that boundary could be fixed along the XY line in Ext.C1(a). I
must also bear in mind that there is no prayer for declaration of title or
recovery of possession made by the appellant. The suit is only for
fixation of boundary without any dispute regarding title or possession
and on the strength of Exts.C1 and C1(a) boundary has been fixed by
the Court along XY line.
3. Another grievance of the appellant is that her prayer for
prohibitory injunction was refused. Trial court held that appellant has
not proved any cause of action justifying the grant of injunction. The
findings are based on the evidence and in my view do not involve any
substantial question of law requiring admission of the second appeal.
The second appeal is dismissed in limine.
THOMAS P JOSEPH,
JUDGE
Sbna/