Kerala High Court
Haridasan vs Ragini on 20 May, 2025
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RSA NO. 249 OF 2025
1
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. 249 OF 2025
AGAINST THE JUDGMENT DATED 6.2.2025 IN AS NO.67 OF
2023 OF ADDITIONAL DISTRICT COURT-I, NORTH PARAVUR ARISING
OUT OF THE JUDGMENT AND DECREE DATED 30.03.2023 IN OS NO.639
OF 2018 OF MUNSIFF'S COURT COURT, NORTH PARAVUR
APPELLANT/APPELLANT/PLAINTIFF:
HARIDASAN
AGED 79 YEARS
S/O. VELANDI, CHIRAPURATHU HOUSE,CHERAI MURI,
CHERAI P.O, PALLIPURAM VILLAGE, KOCHI TALUK,
ERNAKULAM DISTRICT., PIN - 683514
BY ADV SAJAN PUTHENVEETTIL
RESPONDENTs/RESPONDENTS/DEFENDANTS:
1 RAGINI
AGED 73 YEARS
D/O.KUNJU, W/O. BHASI, MADATHIL HOUSE, CHERAI
MURI, CHERAI P.O,PALLIPURAM VILLAGE, KOCHI TALUK,
ERNAKULAM DISTRICT, PIN - 683514
2 RINI.P.B
AGED 39 YEARS
S/O. BHASI, MADATHIL HOUSE, CHERAI MURI, CHERAI
P.O,PALLIPURAM VILLAGE, KOCHI TALUK, ERNAKULAM
DISTRICT, PIN - 683514
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RSA NO. 249 OF 2025
2
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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EASWARAN S., J.
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RSA No.249 of 2025
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Dated this the 20th day of May, 2025
JUDGMENT
The plaintiff is the appellant in the appeal. The appeal arises
from the judgment and decree dated 30.03.2023 in O.S.No.639/2018
as confirmed by the Additional District Court-I, North Paravur by
judgment dated 6.2.2025 in A.S.No.67/2023.
2. The appellant/plaintiff filed the suit for fixation of
boundary, recovery of possession and cancellation of document. The
plaint schedule property having an extent of 5 cents was purchased by
the plaintiff from one Kunju by virtue of document No.383/1989 of
Kuzhuppilly SRO. It is stated that the 5 cents of the property is
situated on the north-eastern corner of the entire 66 cents of the
property. Thereafter, Kunju executed a Will as No.28/1980 in favour
of Renuka, the wife of the plaintiff and Ragini. Consequent to the
death of Kunju, the Will came into force. Later on, the death of
Renuka, the wife of the plaintiff, the property was bequeathed among
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the four daughters. Without locating the plaint schedule property, a
partition deed was executed as deed No.952/2005. The
appellant/plaintiff as well as his wife Renuka filed OS No.644/2008
before the Munsiff's Court, North Paravur for fixation of boundaries
of plaint A and B Schedule properties. An Advocate Commissioner
was appointed in the said suit and he filed a report by identifying the
property with the help of a taluk surveyor. According to the plaintiff,
since he had serious objection with regard to the survey sketch, the
suit was withdrawn on condition that the property will be measured
again. Thereafter, the present suit was filed for setting aside partition
deed No.952/2005, fixation of the boundary and recovery of
possession of the property of the plaintiff from the defendants. The
defendants contested the suit by raising the plea of res judicata and
that the claim being hit under Order-II Rules-1, 2 & 3 of the Code of
Civil Procedure, 1908. O.S.No.644/2008 was withdrawn without any
liberty being reserved to the appellant/plaintiff. Insofar as the prayer
for setting aside document No.952/2005 is concerned, it was
contended that the plaintiff was a signatory witness to the partition
deed and was aware of its execution and the suit filed in the year 2018
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is clearly hit by limitation. Exts.A1 to A4 documents were marked on
behalf of the plaintiff, whereas Exts.B1 to B3 were marked on behalf
of the defendants. Plaintiff was examined as PW1 and no oral
evidence was adduced on the side of the defendants. An advocate
commissioner was appointed for local inspection, who was examined
as CW1 and filed Ext.C1 report and Exts.C1(a) and C1(b) sketches.
3. On appreciation of evidence, the trial court found that the
Advocate Commissioner had clearly identified the plaint schedule
property and that the property covered by Ext.A1 document executed
in favour of the plaintiff is in clear possession and ownership of the
plaintiff and that there is clear boundary to separate the property of
the plaintiff and his wife from the property of the defendants. The
trial court also found that based on Ext.B1 copy of the plaint in OS
No.644/2008, the reliefs sought for by the appellant/plaintiff herein
in O.S.No.644/2008 are the same as that of the reliefs sought for in
the present suit. Accordingly, the trial court dismissed the suit
aggrieved by which the plaintiff/appellant preferred AS No.67/2023
before the Additional District Court-I, North Paravur and by
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judgment dated 6.2.2025, the same also was dismissed against which
the present appeal is filed.
4. Heard Sri.Sajan Puthenveettil, the learned counsel
appearing for the appellant/plaintiff.
5. The learned counsel appearing for the appellant/plaintiff
submitted that the present suit is not barred by res judicata, especially
since there was no adjudication on merits in the earlier suit. However,
when a query was raised by the court as regards the presence of the
appellant as an attesting witness to the document No.952/2005, the
learned counsel appearing for the appellant had no specific answer to
the same. However, the learned counsel appearing for the appellant
would try to get over the impasse by pointing out that even if the relief
to set aside the document No.952/2005 is declined, still, the relief for
fixation of boundary is perfectly maintainable. According to him, the
report of the Advocate Commissioner is palpably wrong, since he had
failed to identify the property correctly in terms of the schedule to
Ext.A1.
6. I have considered the submissions raised across the bar by
the learned counsel for the appellant/plaintiff.
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7. The prime consideration of this Court in the present
appeal is as to whether any substantial question of law arises for
consideration herein. On a perusal of the copy of the plaint in
O.S.No.644/2008, which is made available across the bar by the
learned counsel for the appellant, it is evident that the appellant had
sought fixation of the boundary of Ext.A1 document executed by
Kunju in his favour. When the suit was not pressed by the appellant
for the best reasons known to him, without reserving any liberty to
file a fresh suit based on a different cause of action or after rectifying
the defects, another suit on the same cause of action is not
maintainable. Therefore, this Court cannot find any perversity or
illegality in the finding of the trial court as confirmed by the appellate
court, that the present suit is hit by the provisions of Order-II Rules-
1, 2 & 3 of the Code of Civil Procedure, 1908.
8. Coming to the finding of the trial court that the property
covered by Ext.A1 is clearly demarcated with four boundaries and that
the property is in possession of the plaintiff and is separated by well
defined boundaries with that of the property held by Smt.Renuka, the
wife of the appellant/plaintiff, this Court is of the considered view that
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the said finding is purely a finding of fact. No doubt, a perverse
appreciation of the fact by the trial court as well as by the first
appellate court will entail the aggrieved party to maintain a second
appeal, since the perverse appreciation of the fact by itself will
constitute a substantial question of law. However, on a reading of the
judgments rendered by the trial court as well as the appellate court,
this Court cannot subscribe to the argument of the learned counsel
for the appellant that the appreciation of facts by the trial court as well
as by the appellate court is perverse. Admittedly, the appellant was
not able to impeach the finding in the report of the advocate
commissioner and nothing substantial was brought out to discredit
the finding rendered by the advocate commissioner. Therefore, in the
light of the specific finding rendered by the trial court based on the
report of the advocate commissioner that the appellant's property is
well demarcated with boundaries and is in possession of the
appellant/plaintiff, this Court sees no reason to interfere with the
finding of fact rendered by the trial court as well as by the first
appellate court.
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In the above circumstances, this Court is of the view that
no substantial question of law arises for consideration in the present
appeal. Accordingly, the appeal fails and the same is dismissed. No
order as to costs.
Sd/-
EASWARAN S.
JUDGE
jg
