Judgment:
IN THE HIGH COURT OF KERALAATERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN TUESDAY,THE11H DAYOF FEBRUARY201422ND MAGHA, 1935 RFA.No. 751 of 2012 () ----------------------- AGAINST THE JUDGMENT
IN OS661994 of SUB COURT,VADAKARA DATED1110-2010 APPELLANTS/DEFENDANTS17: ----------------------------------------------- 1. PULINHOLI KUNNATH DEVI, D/O BAPPU, RESIDING ATMEENKUZHIYIL, VADAKARA AMSOM DESOM, VATAKARA TALUK.
2. SON CHANDRASEKHARAN, S/O KUNHIRAMAN, TRADER, RESIDING ATMEENKUZHIYIL VADAKARA AMSOM, DESOM, VADAKARA TALUK.
3. BROTHER BALAKRISHNAN, S/O DO.DO.
4. BROTHER BABURAJAN, S/O DO.DO.
5. SISTER JAYABHARATHI, D/O DO.DO.
6. SISTER PADMAJA, D/O DO.DO.
7. BROTHER PREMANAND, S/O DO.DO. BY ADVS.SRI.P.R.VENKETESH SRI.P.R.RAJA RESPONDENTS/APPELLANTS26 AND DEFENDANTS8TO14 ----------------------------------------------------------------------------------------- 1. SISTER M.T.NARAYANI, D/O ACHUTHAN, MEETHALE THAYYIL HOUSE P.O. PUTHUPPANAM AND AMSOM, DESOM VADAKARA TALUK.673105.
2. C.V.RAVEENDRAN, S/O V.K.KOUSU, CHEERAMVEETTIL HOUSE VATAKARA P.O. AND AMSOM,DESOM VATAKARA TALUK.673 101.
3. C.V.RENUKADEVI, D/O V.K. KOUSU, DO.DO. DO. 673101.
4. C.V.JAYAVALLI, D/O V.K. KOUSU, DO.DO. DO. 673101.
5. C.V.MOHANRAJ, S/O V.K. KOUSU, DO.DO. DO. 673101.
6. C.SARADA DEVI, W/O LATEKUNHIKANARAN, VALIYAPARAMBATH, 'ANAND MAINIR' P.O. NADAKKUTHAZHA AND AMSOM, DESOM VADAKARA TALUK.673 101.
7. DAUGHER D.M.HEMAPRABHA, D/O KUNHIKANARAN, NADAKKUTHAZHA P.O. AND AMSOM,DESOM VADAKARA TALUK.673101.
8. SISTER M.K.RATNA SOBHA, D/O.KUNHIKANARAN, TEACHER, P.O.NADAKKUTHAZHA AND AMSOM, DESOM, VADAKARA TALUK-673101 9. SISTER A.K.SREELATHA, D/O.KUNHIKANARAN, DO.DO67310 10. BROTHER A.M.ANANDRAJ, S/O.DO.DO. 673101 11. SISTER A.M.JAYASREE,D/O.DO.DO. 673101 12. A.M.BABY SREEJA, D/O. DO. DO67310 R1 TO R5 BY ADV.SRI.B.KRISHNAN R1 TO R9, R11,R12 BY ADV.SRI.R.PARTHASARATHY R6 TO R9,R11 & 12 BY ADV.SMT.SEEMA THIS REGULAR FIRST APPEAL HAVING BEEN FINALLYHEARD ON1102-2014, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: AV S.S.SATHEESACHANDRAN, J.
------------------------------------- R.F.A No.751 of 2012 ----------------------------------------- Dated this the 11th day of February, 2014
JUDGMENT
Defendants 1 to 7 in O.S.No.66/1994 on the file of the Sub Court, Vatakara are the appellants. Suit was one for fixation of boundary and injunction. Suit was decreed fixing BC line shown in Ext.C2 plan as the southern boundary of plaint schedule property and the appellants/defendants 1 to 7 were restrained by a decree of injunction from trespassing upon and interfering with the possession and enjoyment of plaint schedule property. Aggrieved by the decree passed in favour of the plaintiffs, the above defendants have preferred this appeal.
2. Previously the suit, after trial, had been dismissed and plaintiffs had filed an appeal as A.S.No.348/2000 before this Court. Reversing the decree of dismissal, fixing a time limit for disposal of the case, the suit was remanded. After such remand, appellants, who alone were the contesting defendants in the suit, failed to appear, and the court below taking note of further materials tendered by the plaintiffs as well, decreed the suit.
3. The plaint property, admittedly, belonged to the predecessor of the parties to the suit, namely, Ayithalakkal R.F.A No.751 of 2012 2 Kannan, and Ext.A2 lease deed was demised in favour of the predecessor in interest of plaintiffs and defendants 8 to 14. According to plaintiffs they are in exclusive possession of the plaint property and that the property of appellants/defendants 1 to 7 is situated on the southern side of their property. Suit was instituted alleging that there were attempts by the appellants/defendants to tamper with the boundary and to trespass upon the plaint property. Identity of the plaint property was disputed by the contesting defendants/ appellants, and among the issues that was the pivotal issue which arose for adjudication before the court. Previously reliance placed by appellants/contesting defendants on a report and plan prepared in another suit, in which plaintiffs were not parties, was accepted by the trial court to conclude that identity of plaint property had not been correctly located and established by plaintiffs, to non suit them. A commission report and plan obtained in the suit over which there was no objection from both sides was discarded by the court while entering a finding over the disputed issue of identity relying on a report and plan prepared in a case where plaintiffs were not parties. That having taken note by this Court with other R.F.A No.751 of 2012 3 circumstances presented led to reversal of the decree of dismissal by allowing the appeal preferred by plaintiffs. This court in its judgment dated 04.03.2010 in A.S.No.348/2000 has observed thus: "The contesting defendants disputed the identity of the property. In the said circumstances, at the instance of the plaintiffs the court below deputed a commissioner. The commissioner submitted Exts.C1 report and C2 plan. Both sides attended the trial of the case accepting Ext.C2 plan as the correct plan. The court below observed that both sides accepted Ext.C2 as the correct plan. In Ext.C2 plan plot ABCD is shown as the plaint schedule property and plot BCEF is shown as property of the defendants 1 to 7. The commissioner located the dividing line between the properties of the plaintiffs and defendants and marked as BC. The commissioner also reported that though the survey number of the property is R.S.No.183/2, due to the changed flow of the river the property claimed by the plaintiffs and defendants are in R.S.No.185/2." Factual aspects of the case taken note by this Court, and observed as above, are conclusive, final and binding on the parties. So the identify question now projected to impeach the decree passed by the court has necessarily to be appreciated and looked into with reference to the conclusive observations made by this court. When that be so, it is needless to point out that it is no longer open to the appellants to rake up any controversy over the identity of suit property where they have accepted C2 plan prepared by the commissioner and also R.F.A No.751 of 2012 4 fixation of BC line as the separating boundary of their property with that of the plaint property. After remand the plaintiffs have corrected the survey number of plaint schedule in tune with the finding made by the advocate commissioner. Challenge canvassed in appeal disputing identity of suit property has no value. In the above circumstances, I find there is no merit in the appeal. Appeal is dismissed directing both sides to suffer their costs. Sd/- S.S.SATHEESACHANDRAN, JUDGE AV /True Copy/ P.A to Judge