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2017 DIGILAW 519 (KER)

NARAYANAN v. BALAKRISHNAN

2017-03-14

B.KEMAL PASHA

body2017
JUDGMENT : B. KEMAL PASHA, J. 1. Challenging the concurrent findings entered by the Munsiff's Court, Kodungallur in O.S. No. 733/2007, followed by those of the Additional Subordinate Judge's Court, Irinjalakuda in A.S. No. 46/2011, the defendant in the suit has come up in Second Appeal. 2. The suit is one for fixation of boundary and perpetual injunction. The case of the plaintiff is that the plaint schedule property belongs to the plaintiff and he derived the title to the property through Exts.A1 sale deed and Ext.A2 purchase certificate. Through Ext.A1, the plaintiff derived title over 14 cents of property and through Ext.A2, he derived title over 10 cents of property. The properties are lying in various sub divisions in Survey No. 9 of P. Vemballur Village. It is the case of the plaintiff that the property situated at the eastern side of the plaint schedule properties belongs to the defendant. There is no clear-cut boundary to separate the plaint schedule property from the property of the defendant. According to the plaintiff, the defendant, with a view to committing trespass into the plaint schedule property, has installed two concrete posts by encroaching into certain portions of the plaint schedule property. At the same time, still, there is no separating boundary between these two properties. 3. The defendant contended that the two concrete posts were installed by the defendant at the then existing separating boundary of the plaint schedule property and the property of the defendant and, therefore, the straight line in between the said two concrete posts is the separating boundary. It was also admitted that earlier, the defendant had filed O.S. No. 995/2001 before the trial court for a decree of perpetual injunction. The said suit was dismissed by the trial court and the said decree and judgment have become final. Even though the defendant has contended that the defendant had made arrangements to file an appeal challenging the judgment and decree in O.S. No. 995/2001, still no appeal has been filed. 4. On the side of the plaintiff, PWs. 1 and 2 were examined and Exts.A1 to A6 were marked. Through PW-2 Advocate Commissioner, Ext.C1 series were proved. The Commissioner's report and plan produced and marked in O.S. No. 995/2001 as such were sought to be produced in the suit. The same were produced and the said documents were marked as Exts.C2 and C2(a). 1 and 2 were examined and Exts.A1 to A6 were marked. Through PW-2 Advocate Commissioner, Ext.C1 series were proved. The Commissioner's report and plan produced and marked in O.S. No. 995/2001 as such were sought to be produced in the suit. The same were produced and the said documents were marked as Exts.C2 and C2(a). The defendant has not entered the box. At the same time, Exts.B1 and B2 were marked. The trial court decreed the suit in terms of the plaint by fixing the eastern boundary of the plaint schedule property as noted in Ext.C1(a) as well as Ext.C2(a). The defendant went in appeal through A.S. No. 46/2011. The lower appellate court also concurred with the findings entered by the trial court and dismissed the appeal. 5. This Court has admitted the Second Appeal on the following substantial questions of law: "(1) Were the courts below right in accepting and marking the Commissioner's report and plan in an earlier suit without examining the Advocate Commissioner in the present suit? (2) Did the courts below properly appreciate the evidence available in the case and whether the appreciation of evidence led to a perverse finding? (3) Whether the courts below went wrong in accepting the Commissioner's plan and report when the properties of the plaintiff and the defendant were not measured on the basis of their respective title deeds?" 6. Heard learned counsel for the appellant and learned counsel for the respondent. 7. The learned counsel for the appellant has argued that the entire sub divisions noted in Exts.C1(a) and C2(a) in which the plaint schedule property is situated, are not available in Exts.A1 and A2 and, therefore, the plots identified as the plaint schedule property are not correctly identified. Further, according to the learned counsel for the appellant, the entire sub divisions in which the property of the defendant is situated are also not shown in Exts.C1(a) and C2(a) and, therefore, the property of the defendant is also not correctly identified. It is also argued that the Advocate Commissioner, who prepared Exts.C2 and C2(a), has not been examined in the present suit and, therefore, the trial court as well as the lower appellate court ought not to have relied on Ext.C2(a). 8. On a comparison of Exts.C2(a) and C1(a), it has clearly come out that all the measurements of the properties shown in both the said plans are the same. 8. On a comparison of Exts.C2(a) and C1(a), it has clearly come out that all the measurements of the properties shown in both the said plans are the same. All the sub divisions of the properties are also shown correctly in Ext.C1 (a) as well as Ext.C2(a). The measurements, and the extent are tallying and, therefore, there is no reason to discard Ext.C2(a). It is true that the learned Advocate Commissioner, who prepared Ext.C2(a), was not examined in the present suit. At the same time, it has to be noted that the said document was proved in O.S. No. 995/2001, which was a suit filed by the present defendant as plaintiff, against the present plaintiff as defendant. The said plan proved in the said suit, as such has been produced in the present suit. Therefore, any further proof is not required. Over and above the same, it is evident from Ext.A6 judgment in O.S. No. 995/2001 passed by the trial court that Ext.C2(a) was accepted by the trial court in the said suit. The judgment and decree in O.S. No. 995/2001 have become final also. Parties to the said suit are the very same parties to the present suit also. When that document as such has been produced, any further proof of its contents is not required, especially when the survey sub divisions and measurements in Ext.C2(a) are tallying with the sub divisions and measurements shown in Ext.C1(a). 9. The appellant has contended in the present suit that he had installed the concrete posts at the separating boundary of these two properties. In O.S. No. 995/2001, his case was that the said two concrete posts were installed by the present plaintiff, who was the defendant in the said suit. In the said suit, through Ext.A6, the trial court found that these two concrete posts were not installed at the eastern boundary of the present plaint schedule property or the western boundary of the plaint schedule property in O.S. No. 995/2001. When no appeal has been preferred against the judgment and decree in O.S. No. 995/2001, the same have become final and presently, the appellant cannot challenge the validity or otherwise of Ext.C2(a). 10. In the present suit also, the appellant has not denied the title of the plaintiff over the plaint schedule properties. When no appeal has been preferred against the judgment and decree in O.S. No. 995/2001, the same have become final and presently, the appellant cannot challenge the validity or otherwise of Ext.C2(a). 10. In the present suit also, the appellant has not denied the title of the plaintiff over the plaint schedule properties. There is no challenge that the extent of the plaint schedule property claimed by the plaintiff is not correct. From Ext.A6, it is evident that the present appellant had admitted before the trial court in that suit that he was not in possession of the actual extent of his property. The appellant has no case that the plaintiff in the suit is in possession of more extent of property than what is being claimed by the plaintiff on the basis of Exts.A1 and A2. 11. Apart from all the above, the appellant has not chosen to mount the box. Had there been any dispute regarding the measurements of the properties shown in Exts.C2(a) and C1(a), definitely, the appellant would have mounted the box and deposed regarding the same. 12. In fact, even though this Court has admitted this appeal on the substantial questions of law noted earlier, no such questions actually arise in this Second Appeal. The Second Appeal is devoid of merits and is only to be dismissed and I do so. In the result, the Second Appeal is dismissed. In the nature of the appeal, both the parties shall bear their respective costs. It is made clear that Exts.C1(a) and C2(a) shall be appended with the decree and the same shall form part of the decree. All pending interlocutory applications in this appeal are closed.