V.J.George vs Thomas.K.J
2021 Latest Caselaw 5504 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

         THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942

                   RSA.No.649 OF 2020

 AS 87/2017 OF ADDITIONAL DISTRICT COURT - IV, KOZHIKODE
                      DTD.18.9.2019

    OS 352/2012 OF II ADDITIONAL SUB COURT, KOZHIKODE
                      DTD.23.2.2017


APPELLANT/APPELLANT/DEFENDANT:

           V.J.GEORGE,
           AGED 72 YEARS,
           S/O.JOSEPH,
           RESIDING AT KOLADIYIL VARAKUKALAYIL HOUSE,
           P.O.KUPPAYAKODE, VIA KODENCHERY,
           EENGAPUZHA VILLAGE, PADOOR DESOM,
           KOZHIKODE 673 580.

           BY ADVS.
           SRI.V.V.SURENDRAN
           SRI.P.A.HARISH

RESPONDENT/RESPONDENT/PLAINTIFF:

           THOMAS.K.J.,
           AGED 68 YEARS,
           S/O.JOSEPH, RESIDING AT 28/2798A,
           JJ HOUSE, NELLIKODE AMSOM DESOM,
           P.O.NELLIKODE, KOZHIKODE 673 016.

            BY ADV. SRI.T.M.CHANDRAN
            BY ADV. SRI.SHAJI P.MATHEW
            BY ADV. SRI.C.K.PRAKASAN

     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 12.02.2021, THE COURT ON 16.02.2021 DELIVERED THE
FOLLOWING:
 R.S.A.No.649 of 2020

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                             JUDGMENT

This R.S.A. is against the judgment and decree in

A.S.No.87/2017 dated 18.9.2019 on the file of the

Additional District Court-IV, Kozhikode (hereinafter

referred to as 'the first appellate court') which was filed

against the judgment and decree in O.S.No.352/2012

dated 23.2.2017 on the file of the second Additional Sub

Court, Kozhikode (hereinafter referred to as 'the trial

court').

2. The suit is for recovery of possession of plaint B

schedule property and other consequential reliefs. The

defendant, who was the appellant before the first

appellate court, is the appellant herein. The plaintiff

before the trial court, who was the respondent before the

first appellate court, is the respondent herein. The parties

are hereinafter referred to as the plaintiff and defendant

according to their status before the trial court unless

otherwise stated.

R.S.A.No.649 of 2020

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3. The plaint averments in brief are hereinbelow:-

The plaint A schedule property forming part

of a larger extent of land originally belonged to the

plaintiff's father one Joseph. His father had gifted plaint A

schedule to him by registered gift deed No.407/2000 of

the Kodenchery Sub Registry. The property was being

managed by the defendant who is none other than the

brother of the plaintiff. During the year 2008, the plaintiff

had noticed that the defendant had constructed a house

after trespassing into plaint A schedule property. The

property trespassed upon by the defendant is scheduled

as plaint B schedule. The plaint B schedule property is

sought to be recovered.

4. The defendant entered appearance and filed

detailed written statement contending that plaint B

schedule is not in existence and it forms part of a larger

extent of property gifted to him by his father as per

document No.570/1987. It was further contended that the R.S.A.No.649 of 2020

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plaintiff is trying to take advantage of the mistake in the

boundaries shown in the document of title.

5. During the trial of the case, PWs.1 and 2 were

examined and marked Exts.A1 to A13 on the plaintiff's

side. DW1 was examined and marked Exts.B1 to B3 on

the defendant's side. Commission report and plan were

marked as Exts.C1 and C1(a).

6. Heard the learned counsel for the appellant

Sri.V.V.Surendran and the learned counsel for the

respondent Sri.T.M.Chandran.

7. The trial court on appreciation of the evidence,

decreed the suit in part by granting a decree for recovery

of possession of plaint B schedule property. The first

appellate court on re-appreciation of the evidence

dismissed the appeal. Concurrent findings of facts are

sought to be challenged in this appeal.

8. The point involved in this case is as to whether

the plaint B schedule property is part of plaint A schedule R.S.A.No.649 of 2020

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property. The total extent of the property held by Joseph

who is none other than the father of plaintiff and

defendant was having an area of 8 acres comprised in

Re.Sy.No.57/1. The father had gifted his properties to his

children including the defendant under different title

deeds. As per Ext.B1 gift deed the father had gifted 2

acres and 45 cents in favour of the defendant in the year

1987. In Ext.B1 it is clearly stated that the said portion of

the property is situated on the south-eastern portion of

the entire 8 acres. Later, the father had gifted plaint A

schedule property in favour of the plaintiff in the year

2000. The plaint A schedule property is situated on the

western side of the defendant's property. During the year

2003, the defendant had assigned a portion of his

property having an extent of 1 acre 43 cents and the

residential building thereon in favour of one

Kappiarmalayil Joseph. According to the plaintiff, after

assigning the portion of the property and the house R.S.A.No.649 of 2020

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situated therein the defendant encroached upon the plaint

B schedule property and constructed a new residential

house.

9. Ext.C1 commission report and Ext.C1(a) plan

prepared by the Surveyor would clearly show that the

property of the defendant is in accordance with the

description in Ext.B1 deed. The defendants have not filed

any objection to the commission report and plan. All the

properties allotted to the children are lying in the very

same Re.Sy.No.57/1 of Engapuzha village but without any

side measurements. Now the dispute is between two sons.

The defendant was given 2.45 acres of property as per

Ext.B1 settlement deed. In the report and plan, the plaint

schedule property belonging to the plaintiff is noted as

plot A and A1 showing the extent of 93.68 cents. The

property marked as plot B and B1 in the report and plan

covered the property set apart to the defendant as per

Ext.B1. Both the courts below have concurrently held that R.S.A.No.649 of 2020

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the description of the western boundary of Ext.B1

settlement deed is a mistaken entry as all other

description in the boundary in Ext.B1 settlement deed is

admitted by the defendant. The trial court and the

appellate court considered the boundaries in accordance

with the survey plan, documents of title, nature and lie of

the properties. Ext.A1 document would show that the

father had gifted one acre of land to the plaintiff. But the

total extent of plot A and plot A1 in Ext.C1 plan would

come to less than one acre. Therefore, in all probability,

plot A1 shown in Ext.C1 plan is not part of plaint A

schedule property. On the strength of title, both the trial

court and the appellate court concurrently held that the

plaintiff is entitled to get the recovery of plaint B schedule

property.

10. A second appeal is not a matter of right. The

right of appeal is conferred by statute. A second appeal

only lies on a substantial question of law. If statute R.S.A.No.649 of 2020

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confers a limited right of appeal, the Court cannot expand

the scope of the appeal. It was not open to the defendant

to re-agitate facts or to call upon the High Court to re-

analyse or re-appreciate evidence in a second appeal. In

the case on hand, both the trial court and appellate court

relied on the oral evidence of PWs.1 and 2, Exts.A1 to A13

and Exts.C1 and C1(a) to grant a decree of recovery of

possession on the strength of title.

11. On behalf of the appellant, it has strenuously

been contended with considerable force that the plaintiff

has no right over the plaint B schedule property. However,

there is no contra evidence adduced by the defendant to

prove a probable case that the defendant had subsisting

title over plaint schedule property to non-suit the plaintiff.

To be "substantial", a question of law must be debatable,

not previously settled by the law of the land or any

binding precedent, and must have a material bearing on

the decision of the case and/or the rights of the parties R.S.A.No.649 of 2020

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before it, if answered either way. As stated earlier, in a

second appeal, the jurisdiction of the High Court being

confined to substantial question of law, a finding of fact

that the plaintiff is entitled to recover plaint B schedule

property on the strength of title is not open to challenge

in second appeal, even if the appreciation of evidence is

wrong. There is no debatable issue before this Court

which is not covered by settled principles of law or

precedents.

12. The trial court and the first appellate court

examined the evidence on record at length and arrived at

a reasoned conclusion that the plaintiff is entitled to get a

decree of recovery of possession with mesne profits and

consequential perpetual prohibitory injunction restraining

the defendant from trespassing into the remaining portion

of the plaint A schedule property and committing any act

of waste therein. The concurrent findings of facts of the

trial court and the first appellate court do not warrant R.S.A.No.649 of 2020

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interference in a second appeal.

For the reasons discussed above, the R.S.A. is

dismissed. There will be no order as to costs. Pending

applications, if any, stand closed.

Sd/-

N.ANIL KUMAR, JUDGE skj