Ambika v. Respondents in Regular Second Appeal RSA 488/2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 19TH DAY OF AUGUST 2019 / 28TH SRAVANA, 1941** ## **RSA.No.488 OF 2012** **AS 93/2007 OF PRINCIPAL SUB COURT,IRINJALAKUDA** **OS 1818/2001 OF ADDITIONAL MUNSIFF COURT ,IRINJALAKUDA** **APPELLANTS/LEGAL REPRESENTATIVES OF 1ST RESPONDENT IN AS AND LEGAL REPRESENTATIVES OF 1ST DEFENDANT IN OA** **AMBIKA W/O.SREENIVASAN D/O.LATE THANKA, R/A.THACHAMTHATTIL, PULLATHARA DESOM,KARALAM VILLAGE, MUKUNDAPURAM TALUK** **BY ADVS. SRI.S.K.BALACHANDRAN SMT.N.D.DEEPA SRI.V.K.NANDAKUMARAN** ## **RESPONDENTS IN SA/APPELLANT & RESPONDENTS IN AS/PLAINTIFF & DEFENDANTS IN OS** - **1 SMT.AMBIKA W/O.VAKKAYIL SANANTHANADAS PULLATHARA DESOM, KARALAM VILLAGE,MUKUNDAPURAM TALUK, THRISSUR DIST-680711** - **2 MOHANAN SO.BHASKARAN** - **EZHAVANPARAMBIL HOUSE, PULLATHARA DESOM, KARALAM VILLAGE,MUKUNDAPURAM TALUK, THRISSUR DIST-680711** - **3 CHANDRAN** **S/O.MOOLEPPARAMBIL VELAPPAKUTTY, PULLATHARA DESOM KARALAM VILLAGE,MUKUNDAPURAM TALUK, THRISSUR DIST-680711** - **4 SUJATHA** - **W/O.MOHANAN, EZHAVANPARAMBIL., PULLATHARA DESOM KARALAM VILLAGE,MUKUNDAPURAM TALUK, THRISSUR DIST-680711** **5 BHARATHI** **RSA.488/2012** 2 **W/O.EZHAVANPARAMBIL BHASKARAN, PULLATHARA DESOM KARALAM VILLAGE,MUKUNDAPURAM TALUK, THRISSUR DIST-680711** - **6 HAIMAVATHY WO.THERAMBIL RAJAN PULLATHARA DESOM KARALAM VILLAGE,MUKUNDAPURAM TALUK, THRISSUR DIST-680711** - **7 SANTHA, THANDASSEY VEETIL, KAIPULLY DESOM ARIMBOOR VILLAGE, THRISSUR TALUK,-680688** - **8 RAJAN S/O.THERAMBIL SANKARANKUTTY, PULLATHARA DESOM KARALAM VILLAGE,MUKUNDAPURAM TALUK, THRISSUR DIST-680711** - **9 RANJITH S/O.MANI THERAMBIL HOUSE, PULLATHARA DESOM, KARALAM VILLAGE,MUKUNDAPURAM TALUK, THRISSUR DIST-680711** - **10 RAMIL S/O..RAJAN, MANANGATH HOUSE, P.O.KARALAM, PULLATHARA DESOM, KARALAM VILLAGE,MUKUNDAPURAM TALUK, THRISSUR DIST-680711** - **11 SAKUNTHALA W/O.SUBRAMANIAN,KATIHAVALAPPIL HOUSE,VELLANI P.O.,THANISSERY, MUKUNDAPURAM TALUK-680701** - **12 VALSALA** - **W/O.DASAN, MAROTTILKKAL HOUSE, P.O.KARALAM, KARALAM VILLAGE, MUKUNDAPURAM TALUK-680711** - **13 RATNAM W/O.MADHAVAN, KANNAMKULAM HOUSE,P.O.KARALAM, KARALAM VILLAGE MUKUNDAPURAM TALUK-680711** - **14 BABY WO.SASI NEDIYAMBATH HOUSE NEAR USHA MATCHES, ARIMBOOR VILLAGE, THRISSUR TALUK-680688** - **R1 BY ADV. SRI.V.M.KRISHNAKUMAR** - **R1, R3 BY ADV. SRI.T.N.MANOJ** - **R1 BY ADV. SRI.RENJITH THAMPAN SR.** 3 ## **RSA.488/2012** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.7.2019, THE COURT ON 19.08.2019 DELIVERED THE FOLLOWING:** **RSA.488/2012** 4 ## **JUDGMENT** 1. The suit was originally for injunction. The plaint was amended to seek the reliefs of fixation of boundary and recovery of possession. The first defendant had a counterclaim against the plaintiff. The trial court dismissed the suit as well as the counter-claim. The dismissal of the counterclaim has become final. The plaintiff filed appeal against the dismissal of her suit. The lower appellate court allowed the appeal and decreed the suit granting the plaintiff the reliefs of fixation of boundary and recovery of possession. The first defendant died after the disposal of the first appeal. Her daughter filed the second appeal. 2. The case of the plaintiff is stated below : The plaint A schedule property belongs to her. Her property had clear and demarcating boundaries on all sides. The southern boundary of her property was destroyed by the defendants. The plaintiff was prevented by the defendants from **RSA.488/2012** 5 restoring the southern boundary of her property. The defendants encroached into a portion of the A schedule property. The said portion measuring 4.8 cents is the plaint B schedule property. The plaintiff is entitled to get the southern boundary of her property fixed. She is entitled to recover possession of the B schedule property besides injunction to protect her possession in the A schedule property. 3. The appellant's mother who was the first defendant raised the following contentions : The property in the possession of the first defendant was held by her since 1973 as received from her predecessor-in-interest. Even if any portion of the property of the plaintiff was possessed by the first defendant, the plaintiff lost her title to such portion of land by the law of limitation and adverse possession. 4. Two suits were tried jointly. The second appeal is filed against the decree in A.S.93/2007 which arose from the **RSA.488/2012** 6 decree in O.S.1818/2001. The said suit was treated as the leading case for recording evidence. PWs 1 and 2 were examined and Exts A1 to A6 were marked on the side of the plaintiff. DW1 was examined and Exts B1 to B5 were marked on the side of the defendants. Exts C1 to C3 were also marked. 5. Heard Sri.S.K.Balachandran, the learned counsel for the appellant. 6. The first defendant had a contention that the trial of the suit was barred by res judicata. She contended that her suit O.S.195/1992 was decreed and that the appeal against the decree was dismissed. She produced Ext B3 judgment of the trial court and Ext B4 judgment of the appellate court. Admittedly the present plaintiff was not a party in Ext B3 suit and B4 appeal. Hence the plea of res judicata is without any merit. **RSA.488/2012** 7 7. Exts B3 and B4 judgments cannot be read and considered at all. For, those judgments are irrelevant (vide Secs 40 to 43 of the Indian Evidence Act). 8. The commissioner measured the properties of the parties with reference to their title deeds. The plots shown as D, F and G in Ext C1(a) plan of the commissioner form part of which property is the precise dispute between the parties. On measurement the commissioner found that the first defendant was in possession of land in excess of the extent she had as per her title deed and that the plaintiff was short of land than shown in Ext A1. The courts below found that plots D, F and G form part of the property of the plaintiff. The trial court dismissed the suit despite the said finding on the ground that the neighbouring properties were not measured by the commissioner. As stated by the appellate court, the first defendant had no case that any portion of the property of the plaintiff was in the possession of any other neighbour. The first defendant did **RSA.488/2012** 8 not prove that the commissioner's report and plan were wrong. The appellate court fixed the southern boundary of the A schedule property and directed the first defendant to surrender possession of plots D, F and G in Ext C1(a). It is a finding on fact based on evidence. The second appeal cannot be entertained in the absence of a substantial question of law. 9. The learned counsel for the appellant has relied on the decision of this court in **Nandakumara Varma v. Usha Varma (2015 (1) KLJ 73)** . It is held therein that to maintain a suit for fixation of boundary it is necessary that the properties of the parties to the suit are adjoining properties, which means that the two properties should be in contact with each other. The said decision is relied on based on a vague contention in the written-statement of the first defendant at paragraph 6 that in between her property and the property of the plaintiff there is a vacant compound belonging to someone else. The first defendant **RSA.488/2012** 9 could not establish the existence of any such vacant land in between her property and the property of the plaintiff. Therefore the reported decision referred to above will not come to the rescue of the appellant. That apart, the contention at paragraph 10 of the written-statement is that the first defendant has no objection if the plaintiff puts up any fence or boundary on any part of her property, but the first defendant has objection if the plaintiff interferes with the northern boundary of the property of the first defendant. What the said contention suggests is that the property of the plaintiff is adjacent to the property of the defendant. 10. The appellant cannot contend for the law of limitation and adverse possession in respect of plots D, F and G in Ext C1(a) plan inasmuch as her mother did not appeal against the dismissal of the counter-claim seeking declaration of title on the strength of adverse possession and the law of limitation. **RSA.488/2012** 10 11. No substantial question of law is involved in the appeal. It is devoid of merit. The same is liable to be dismissed. 12. Dismissed. Sd/- **A.M.BABU Judge** Mrcs/14.8. /True copy/