IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 12TH DAY OF JUNE 2012/22ND JYAISHTA 1934
RSA.No. 665 of 2012 ()
---------------------AS.31/2008 of PRL.SUB COURT,THIRUVANANTHAPURAM OS.919/2005 of ADDL.MUNSIFF'S COURT(RENT CONTROL COURT),THIRUVANANTHAPURAM
APPELLANT(S)/APPELLANT/PLAINTIFF:
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## VALSALA
D/O.PONNAMMA, AED 49 YEARS, MALAYAKUNNU, THEKKEY PUTHEN VEEDU, MANUKULACHADIMANGALAM DESOM, NEMOM VILLAGE THIRUVANANTHAPURAM.
BY ADVS.SRI.POOVAPPALLY M.RAMACHANDRAN NAIR SRI.P.SURESH KUMAR SRI.R.V.ABHISHEK
RESPONDENT(S)/RESPONDENTS/DEFENDATNS:
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1. ISSAC, S/O.JANARDHANAN, AGED 62 YEARS, MALAMEKUNNU VEEDU,
SATHYAN NAGAR, MANUKULACHADIMANGALAM DESOM, NEMOM VILLAGE THIRUVANANTHAPURAM-695018.
## 2. VIJAYAKUMARI
- W/O.ISSAC, AGED 57 YEARS, MALAMEKUNNU VEEDU, SATHYAN NAGAR, MANUKULACHADIMANGALAM DESOM, NEMOM VILLAGE THIRUVANANTHAPURAM-695018.
## 3. MATHEW ISSAC
- S/O.ISSAC, AGED 31 YEARS, MALAMEKUNNU VEEDU, SATHYAN NAGAR, MANUKULACHADIMANGALAM DESOM, NEMOM VILLAGE THIRUVANANTHAPURAM-695018.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **THOMAS P. JOSEPH, J.**
**-------------------------------------R.S.A. No.665 of 2012 -------------------------------------Dated this the 12[th] day of June, 2012.**
## **JUDGMENT**
Plaintiff in O.S.No.919 of 2005 of the court of Rent Controller (Additional Munsiff), Thiruvananthapuram is the appellant, challenging the judgment and decree in that case confirmed by learned Principal Sub Judge, Thiruvananthapuram in A.S.No.31 of 2008.
2. Appellant claimed that she is the owner in possession of plaint A schedule as per document No.1082 of 1992. Plaint B schedule situated on the north of plaint A schedule belongs to the respondents/defendants and it is situated about 12 feet below plaint A schedule. Plaint C schedule is the way on the west of plaint A schedule, starting from the road on the south and reaching plaint B schedule. Respondents are using plaint C schedule to which appellant has no objection. On the west of plaint C schedule there is a stone wall about 2½ feet width and 2½ feet height. On the further west of plaint C schedule is the property belonging to Moraes John. According to the appellant, there is no specific boundary between plaint A and B schedules. She alleged that respondents reduced to their possession about 568 sq. links from plaint A
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schedule which is described as plaint D schedule. In the circumstances appellant prayed for a declaration of her title, putting up boundary between plaint A and B schedules and for recovery of possession of plaint D schedule.
3. Respondents contended that on 07.10.2004 there was an agreement by which appellant and her husband agreed to sell 17 cents to respondents 1 and 3. Appellant and her husband agreed to give all the original documents to them but did not do so. On enquiry they learnt that the appellant and her husband had mortgaged the said property to the Khadi Board which was suppressed from the respondents at the time of execution of agreement on 07.10.2004. Respondents 1 and 3 thereon filed O.S.No.710 of 2005 for recovery of advance money.
4. So far as O.S.No.919 of 2005 is concerned, respondents contended that plaint A schedule does not have the extent stated in the plaint schedule. They also contended that more than 1½ cents is lying as pathway on the west of plaint A schedule. That pathway is provided for the respondents as per document No.1328 of 1972. The said way is having a width of 1.5 metres. It is the case of respondents that entitlement of appellant as per document No.1082 of 1992 is only for 17 cents.
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5. Trial court ordered joint trial of O.S.Nos.919 of 2005 and 710 of 2005. Evidence was recorded in the cases. Trial court dismissed O.S.No.919 of 2005 while, decree for recovery of advance money was granted in O.S.No.710 of 2005.
6. Appellant challenged judgment and decree in O.S.No.919 of 2005 in A.S.No.31 of 2008 before the learned Principal Sub Judge, Thiruvananthapuram. Learned Sub Judge dismissed that appeal confirming the judgment and decree in O.S.No.919 of 2005. Hence this Second Appeal.
7. Learned counsel has contended that the order for joint trial of the two suits is bad in law since there was nothing common in the two suits and that gave rise to a substantial question of law. Trial court could not have ordered joint trial of the suits. According to the learned counsel, it is open to this Court to frame substantial question of law having regard to the facts and circumstances of the case and the law on the point. Reliance is placed on the decision in **Ayithi Appalanaidu v. Petla Papamma (AIR 2011 Andhra Pradesh**
## **172) and Amar Singh and others v. Dalip Singh (D) by Lrs. and others (2012**
**KHC 4228 (Vol.2 S.N. 20 - SC)** . It is the further argument of learned counsel that the finding of trial and first appellate courts that appellant is not entitled to recover possession of plaint D schedule is not correct. There is also a challenge to Exts.C1 and C1(a), report and plan submitted by the Advocate Commissioner.
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8. So far as the joint trial is concerned, I am not inclined to think that it is at this stage that question could or ought to be raised. It is not very much in dispute as found by the trial court in O.S.No.710 of 2005 that there was an agreement for sale with the appellant and her husband on the one side and respondents 1 and 3 on the other side concerning plaint A schedule which did not fructify for whatever reason it be and hence respondents 1 and 3 filed O.S.No.710 of 2005 for recovery of advance money. After hearing counsel on both sides learned Munsiff ordered joint trial of the two suits.
9. The Supreme Court in **Prem Lala Nahata v. Chandi Prasad (2007 (1) KLT 910)** considered the circumstances under which the court could order joint trial of the cases and in paragraph 16, after enumerating certain circumstances for joint trial held that if “for some other reason it is desirable to make an order consolidating the suits”, it is within the power of the trial court to do so. In this case I stated that it was after hearing both sides that the trial court has ordered joint trial of the suits. That order was not challenged at the appropriate time. Parties participated in the trial. Moreover it is not the case of appellant that on account of joint trial appellant was prejudiced that she was not able to give evidence in O.S.No.919 of 2005. In that view of the matter, appellant cannot be allowed to raise the question at this stage as to the correctness of the order of joint trial. Nor does it involve any substantial question of law.
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10. The next question is whether finding of courts below that appellant is not entitled to any relief involves any substantial question of law requiring decision by this Court.
11. While, according to the appellant, she is entitled to 18 cents described in plaint A schedule as per document No.1082 of 1992 it is the contention of respondents that entitlement of the appellant as per the said document is only 17 cents. It is their further case that the pathway (plaint C schedule) was provided on the western side of plaint A schedule as per document No.1328 of 1972 for the use of respondents and that its width is 1.5 metres. It is relevant to note that the father of the appellant sold 25 cents (on the north of plaint A schedule) to the 1[st] respondent as per Ext.B13, assignment deed No.1328 of 1972 dated 13.07.1972 which provided for right of access to the respondents to plaint B schedule through the pathway (plaint C schedule) on the western side of plaint A schedule. True in Ext.B13, the width of the way is not mentioned.
12. There was a former litigation between the parties as O.S.No.535 of 2002. Exts.A6 and A6(a) are the copy of report and plan prepared by PW2 and proved through him in the present case. Exts.C1 and C1(a) are the report and plan prepared in O.S.No.919 of 2005. Learned counsel has given me a copy of Exts.C1 and C1(a). It is seen that the Advocate Commissioner has identified plaint A and B schedules. Ext.C1 shows that the Advocate Commissioner found
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a row of trees on the west of plaint A schedule in north-south direction forming the western physical boundary of plaint A schedule. It is admitted by the appellant that plaint C schedule lies on the west of plaint A schedule. The Advocate Commissioner found the average width of plaint C schedule as 1.10 metres (as against the case of appellant that it is 2½ feet). The Advocate Commissioner also reported that there are natural boundaries on the west and north of plaint A schedule. Plaint B schedule is situated at a lower level (according to the appellant, about 12 feet) from plaint A schedule. DW2 is the Surveyor who prepared Ext.C2(a), plan. He stated that measurement was made as per the resurvey plan and present lie of the property and that the total extent of property in the possession of appellant (as against 18 cents as per document No.1082 of 1992) is 18.425 cents while the property in the possession of the 1[st] respondent (as against 25 cents covered by document No.1328 of 1972 executed by the father of appellant) is only 24.552 cents.
13. Courts below from the evidence on record found that the allegation of trespass is not correct and that the appellant is in possession of land in excess of what is stated in the document of title in her favour. So far as boundaries are concerned, courts below found that there are natural physical boundaries on the west of plaint A schedule and in between plaint A and B schedules. The claim for recovery of possession was also found against. It is in the above circumstances that the trial court refused to grant relief in favour of the appellant which the first appellate court has confirmed.
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14. The decision of the trial and first appellate courts in the matter is based on the evidence on record and it involves no substantial question of law. As such this appeal does not merit admission.
Second Appeal is dismissed.
All pending interlocutory applications will stand dismissed.
**THOMAS P.JOSEPH, Judge.**
**cks**
