IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 121 of 2002()
1. V.LAKSHMI KUTTY, LEKSHMI VILASATH,
... Petitioner
Vs
1. SADASIVAN, NEDUMTHARAYIL VEEDU,
... Respondent
2. VIJAYAMMA, NEDUMTHARAYIL VEEDU,
3. KRISHNAN, CHOTTIYAR, NEDUMTHARAYIL,
4. K.VIJAYAN, SWAROJ BHAVANAM,
5. K.SOMAN, SWARAJ BHAVANAM,
For Petitioner :SRI.SUBHASH CYRIAC
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :21/10/2010
O R D E R
S.S.SATHEESACHANDRAN, J
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S.A No.121 OF 2002 F
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Dated this the 21st day of October 2010
JUDGMENT
Plaintiff in a suit for fixation of boundary and recovery of
possession is the appellant. Concurrent decision rendered by the
two courts below non-suiting her, is challenged in the second appeal.
She claimed title over two items of properties under A1 and A2 sale
deeds and possession thereof was sought to be substantiated by
producing A3 tax receipt. Her claim over the above properties was
resisted by the defendants, who, in fact, had raised inconsistent
pleas as to having tenancy and also of prescribing title by adverse
possession. The appellant/plaintiff amended the suit to claim a
further relief of recovery of possession alleging of subsequent
trespass by the defendants over the properties and putting up of a
structure therein. Both the courts, on the materials placed,
negatived the claims canvassed by the plaintiff, and she was
nonsuited. Correctness of the decision so rendered is sought to be
impeached in the second appeal.
2. The records of the case have been collected to examine the
entertainability of the appeal. Perusing the records with reference to
the judgments rendered by the courts below and also the
submissions made by the learned counsel for the appellant/plaintiff, I
find the appeal does not involve any question of law, leave alone any
S.A No.121 OF 2002 F – 2 –
substantial question of law for receiving it by this court, to have a
disposal on merits after issuing notice to the respondents. The title
deeds, on which the appellant/plaintiff relied, showed the boundaries
of the two properties only with reference to the survey numbers, with
no further demarcation whatsoever, and the case set up by the
plaintiff as to subsequent trespass over a portion of the property by
the defendant was found untrue on the materials placed, which
indicated that long prior to the institution of the suit, the structures
allegedly as put up by the plaintiff subsequent to suit, were in
existence and occupied by the defendants, weighed with both the
courts to reach a conclusion that the plaintiff is not entitled to the
reliefs canvassed in the suit. It is also seen that if not the whole, but
major portion of the properties described in the plaint, as determined
by the advocate commissioner deputed by the court, with buildings
comprised therein, are under the occupation of the defendants.
Though the plaintiff had moved an amendment in the suit to seek
recovery, it is seen, what was the property sought to be recovered,
which is alleged to have been trespassed upon by the defendants
after institution of the suit, has not been separately scheduled, nor
stated in the plaint. A portion of the suit property was trespassed
and a structure was put up therein by the defendants, was the case
advanced by the plaintiff to seek the additional relief of recovery of
possession by way of amendment. She had no case that the whole
S.A No.121 OF 2002 F – 3 –
property was trespassed upon and reduced into possession by the
defendants. Suit was initially filed for injunction and for fixation of
boundary, but, later, amended for recovery also, but, without
specifying the area alleged to have been trespassed upon by the
defendants. In the incomplete data as to which was the area
trespassed upon by the defendants and determination of that area,
none of the reliefs canvassed in the suit could have been granted to
the plaintiff, especially in a case where the title deeds refered the
boundaries of the properties only by survey numbers and that alone.
Though the claim of recovery under the amended suit was based on
title, it is seen that the plaintiff did not move for a declaration of her
title, taking such steps as were necessary for identifying her
property, as covered under A1 and A2 sale deeds. The materials
tendered in the case would also show that some portions in the
survey number, within which the plaint items also fall, had been
acquired by the Railways, which, in fact, was set up by the
defendants to resist the suit claim as well. When that be the facts on
the materials tendered in the case, dismissal of the suit by the trial
court as confirmed by the lower appellate court negativing the claims
of the plaintiff does not warrant any interference. Appeal is
dismissed.
S.S.SATHEESACHANDRAN
vdv JUDGE