Kerala High Court
Leela vs Baby on 20 May, 2025
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RSA NO. 219 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 20TH DAY OF MAY 2025 / 30TH VAISAKHA, 1947
RSA NO. 219 OF 2025
AGAINST THE JUDGMENT DATED 13.01.2025 IN AS NO.19 OF
2023 OF THE COURT OF CIVIL JUDGE (SENIOR DIVISION),
PERUMBAVOOR ARISING OUT OF THE JUDGMENT DATED 19.01.2023 IN
OS NO.317 OF 2015 OF THE MUNSIFF'S COURT, PERUMBAVOOR
APPELLANT/APPELLANT/PLAINTIFF:
LEELA
AGED 72 YEARS
W/O. KURIAKO, VANDANATHIL HOUSE, KADAYAKKANADU
KARA, MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM DISTRICT, PIN - 686669.
BY ADV MAITHEEN M.PAREETH
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 BABY
AGED 63 YEARS
S/O. MATHAI, VANDANATHI HOUSE, KADAYAKKANADU
KARA, MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM DISTRICT, PIN - 686669
2 ANNAMMA
AGED 58 YEARS
W/O. BABY, VANDANATHI HOUSE, KADAYAKKANADU KARA,
MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM DISTRICT, PIN - 686669.
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3 ELDHOSE
AGED 63 YEARS
S/O. BABY, VANDANATHI HOUSE, KADAYAKKANADU KARA,
MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM DISTRICT, PIN - 686669
4 BASIL
AGED 28 YEARS
S/O. BABY, VANDANATHI HOUSE, KADAYAKKANADU KARA,
MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK,
ERNAKULAM DISTRICT, PIN - 686669
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 20.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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RSA NO. 219 OF 2025
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EASWARAN S., J.
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RSA No.219 of 2025
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Dated this the 20th day of May, 2025
JUDGMENT
The plaintiff in O.S No.317/2015 on the files of the Munsiff's
Court, Perumbavoor is the appellant herein. The suit was preferred
for fixation of boundary, mandatory and permanent prohibitory
injunction. According to the plaintiff, the property belonged to the
plaintiff by virtue of document No.6144/2011, and that the said
property was settled in favour of the husband of the plaintiff by
document bearing No.730/1959. The property of the defendants lies
in the western side of the plaint A schedule property and is scheduled
as plaint B schedule property and the northern side of the plaint A
schedule property is the property of one Thozhuthungal George. The
defendants are the son and daughter-in-law of the plaintiff's
husband's brother Mathai. When attempts were made to trespass
into the property of the plaintiff, the suit was filed. According to the
plaintiff, she is doing cultivation in the property and therefore, in
order to protect her interest, the suit is preferred.
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2. The defendants appeared and contested the suit by
pointing out that the plaintiff had no right, title, or interest over the
property. The plaint schedule property originally belonged to the
father of the 1st defendant and after his death, the properties were
inherited by the 1st defendant, his brothers and sisters. Now the 1st
defendant's brothers are in inimical terms and therefore, the plaintiff
purposefully avoided to implead them as the parties to the suit. The
property with an extent of 23 cents in old survey No.5/5 of
Mazhuvannoor Village belonged to the father of the 1st defendant,
Mathai and mother, Sosa, by virtue of document No.699/59 of
Aikkaranadu SRO. As per the resurvey records, the extent of the
property is 30 cents in re-survey No.324/6 in block No.46 of
Mazhuvannoor village. The mother of the defendants, Sosa, assigned
the co-ownership right over the property to the father, Mathai, by
virtue of Sale Deed No.3303/80 of Aikkaranad SRO. In 1981, the
father mortgaged the property to Social Welfare Centre, Kury Unit
and, on default of the father of the 1st defendant to pay the Kury
amount, the company filed a suit before the Sub Court, North
Paravoor as O.S. No.256/82. The Kury company acquired the said
property by virtue of the sale certificate issued by the Sub Court and
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thereafter the property was purchased by the father, Mathai, as per
sale deed No.551/93. One Aliyamma filed O.S.No.177/2010 in which
the 1st defendant filed a counter claim, which was initially dismissed.
Later, A.S.No.116/11 was filed by the 1st defendant and the appeal was
allowed and the counter claim was decreed.
3. On behalf of the plaintiff, Exts.A1 to A2 series documents
were marked, and PWs 1 and 2 were examined, whereas on behalf of
the defendants, Exts.B1 to B6 documents were marked and DW1 was
examined. The advocate commissioner, who was appointed to locally
inspect the property, filed Exts.C1, C2, C1(a) and C2(a) documents
and marked. He was examined as CW1.
4. The trial court, on appreciation of evidence of CW1 and
Exts.C2 & C2(a), found that the property covered by Ext.A1 document
is the property covered by the counter claim in O.S.No.177/2010. As
per the reports of the advocate commissioner, Exts.C2 and C2(a), the
property covered by document Nos. 699/59 and 3303/80 are one and
the same property, that is scheduled in the plaint. The boundaries
within which the property covered by those documents situates in, as
described is within the boundary of the entire property comprised in
survey Nos. 35/5 and 35/6. Ultimately, the trial court found that the
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plaintiff had not established possession over the plaint A schedule
property and also the cause of action for the relief sought for fixation
of the boundary, and accordingly dismissed the suit.
5. On appeal, the appellate court concurred with the findings
rendered by the trial court and dismissed the appeal.
6. Heard Sri.Maitheen M.Pareeth, the learned counsel
appearing for the appellant/plaintiff.
7. The learned counsel appearing for the appellant submits
that the commissioner's report is materially vitiated, inasmuch as the
identification of the property by the advocate commissioner is
improper. Thus, according to the learned counsel for the appellant, a
remand is necessary for doing complete justice to the plaintiff and
hence, the present appeal is preferred. Therefore, he prayed for the
issuance of notice to the defendants calling for them to answer the
various contentions raised in the grounds of the appeal.
8. I have considered the submissions raised across the bar
on behalf of the learned counsel for the appellant.
9. On appreciating the arguments of the learned counsel for
the appellant, it is seen that the arguments are centered around the
appreciation of facts by the trial court. Though the findings of the trial
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court are vehemently attacked with reference to the findings of the
advocate commissioner in his report, this Court is not persuaded to
accept the argument of the learned counsel for the appellant. No
doubt, the appellant had described the derivation of the title in the
plaint. However, when the defendants appeared and produced the
prior deed and that on evidence it was found that there is no property
seen comprised in old survey Nos.35/5/1 and 35/6/1 in which the
plaint A schedule property is shown to be comprised with, the finding
of the trial court cannot be said to be vitiated by any perversity or
material irregularity or infirmity. Admittedly, Ext.B1 is the prior deed
to Ext.A1. The question before this Court is as to whether the plaintiff
has succeeded in establishing the right over the plaint schedule
property. When tested against the evidence of the plaintiff, this Court
finds that the defendants were successful in establishing that the
property held by them is one and the same, which is the subject matter
of the counterclaim in OS No.177/2010. It is true that the suit
instituted by the appellant/plaintiff is not one for the declaration of
title, but is for the fixation of the boundary. But, in a suit where
fixation of boundary is sought, it becomes imperative for the plaintiff
to establish that the plaintiff has derived a valid right over the
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property and that the property is identifiable. Tested with the
findings rendered by the trial court based on the reports of the
advocate commissioner, this Court is not persuaded to hold that any
substantial question of law arises for consideration in the present
appeal warranting admission and notice to the defendants calling
them to answer the contentions raised on behalf of the
appellant/plaintiff.
In the light of what is stated above, this Court finds that there is
no substantial question of law arises for consideration warranting
admission of the appeal. The second appeal fails and the same is
accordingly dismissed. No order as to costs.
Sd/-
EASWARAN S.
JUDGE
jg
