IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 946 of 2009()
1. VISWADAS, S/O.LATE PACKIAM,
... Petitioner
2. PUSHPITHA, W/O.VISWADAS,
Vs
1. SHIBA, W/O.THANKAN,
... Respondent
2. SUNDARADAS, S/O.PACKIAM,
3. GNANADAS, S/O.PACKIAM,
4. SWARNABAI, D/O.RASALAMMA,
For Petitioner :SRI.RAM MOHAN.G.
For Respondent :SRI.K.B.PRADEEP
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :24/11/2009
O R D E R
THOMAS P JOSEPH, J.
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R.S.A.No.946 of 2009D
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Dated this 24th day of November, 2009
JUDGMENT
Respondents appear through Adv. K B Pradeep.
2. The second appeal arises from judgment and decree of
learned First Additional Sub Judge, Thiruvananthapuram in A.S.No.12 of
2004. That appeal arose from judgment and decree of learned Munsiff,
Thiruvananthapuram in O.S.No.1720 of 1999. Appellants filed the suit
seeking fixation of boundary and prohibitory injunction concerning 12
cents in survey No.2034/2 which the appellants claimed as per Ext.A1,
sale deed No.1964 of 1967. They claimed that the suit property is part
of a total extent of 2.45 acres. Respondent Nos.1 and 2 are residing
on the west of the suit property. Respondent Nos. 3 and 4 are residing
on the north of the suit property. Appellants claimed that themselves
and respondent Nos.1 and 2 have access to their properties from
Thamalam road through the pathway along east of the suit property
having a width of 4 feet. Respondent Nos.1 and 2 closed that pathway
in their attempt to make a new pathway through the schedule
property. Hence the suit claiming reliefs as first above stated.
3. Respondents contended that assignor of appellants had no
right over the property mentioned in Ext.A1 to be assigned to them.
They contended that the property described in Ext.A1 has no nexus
with the property described in the plaint schedule which according to
R.S.A.No.946 of 2009 2
them cannot be identified. They also disputed existence of the way as
claimed by the appellants. Trial court found from Exts.C1 and C1(a),
report and plan prepared by the Advocate Commissioner with the
assistance of Surveyor and the evidence of PW1 that the suit property
has not been properly identified. According to the Commissioner and
Surveyor (PWs.2 and 3), property shown by the appellants as described
in Ext.A1 is ‘ABCD’ plot in Ext.C1(a) but PW1 stated that ABCD plot is
not the property belonging to him as per Ext.A1. In view of that, trial
court dismissed the suit as the suit property has not been identifiable.
That was confirmed by the first appellate court.
4. I have gone through the judgment under challenge and
heard counsel on both sides. There is real dispute regarding identity of
the property. Appellants do not agree that property identified by the
Advocate Commissioner and the Surveyor in Exts.C1 and C1(a) is the
property they are claiming title and possession as per Ext.A1. Without
settling disputes as to title, possession and identity of the property no
decree for fixation of boundary could be granted as held in Bapputty
(a) Sydali and Others Vs. Cheriakutty (a) Veerankhani Rawther
(1990 (1) KLJ 218) and Anjil Vellachi and Others Vs. Mamuni
Bhaskaran (a) Vattayil Bhaskaran (2009 (3) KHC 728). In the
light of the above, the proper remedy of appellant is to sue for
declaration of title and other appropriate reliefs. Findings entered by
R.S.A.No.946 of 2009 3
the courts below on identity and title claimed by the appellants and the
validity of Ext.A1 are set aside and those findings shall not affect the
right of appellants to seek appropriate reliefs if they are otherwise
entitled to that course.
Without prejudice to that right if any of the appellants, second
appeal is dismissed as it involves no substantial question of law.
THOMAS P JOSEPH,
JUDGE
Sbna/