Sunil Sajeev vs Kumaran and Others

Thomas P. Joseph, J.—Additional 6th defendant in O.S. No. 158 of 1994 of the court of learned Munsiff, Muvattupuzha is aggrieved by the judgment and decree passed by the learned Sub Judge, Muvattupuzha in A.S. No. 78 of 2008 and has preferred this Second Appeal urging the substantial questions of law raised in the memorandum of appeal. Parties are referred as plaintiff and defendants as in the trial court for convenience.

According to the plaintiff, plaint A and B schedules belong to him and his mother as per Ext.A1, assignment deed No. 1306 of 1960 while plaint C schedule belongs to the plaintiff as per document No. 202 of 1973 (Ext.A2). Plaintiff is residing in plaint A schedule property on the north of plaint A schedule property belonging to defendants 1 to 4. There is a road starting from the Municipal road leading to the eastern side. Plaintiff filed O.S. No. 478 of 1985 against the 1st defendant and others when user of the road was obstructed and that suit was decreed. In continuation of the way referred in O.S. No. 478 of 1985 there is a thondu leading to the suit property. Defendants obstructed the user of plaint B schedule and hence the suit for declaration of title and possession of the suit property and mandatory injunction as regards the obstruction caused in plaint B schedule.

Additional 6th defendant contended that plaintiff has no right over plaint B schedule and that the said thondu is constructed through the property surrendered by one Ayyappan.

Trial court was not inclined to accept the case of plaintiff regarding plaint B schedule and while refusing to grant relief to the plaintiff regarding B schedule, granted relief as regards plaint A and C schedules. Plaintiff preferred A.S. No. 78 of 2008. The first appellate court found in favour of the right claimed by the plaintiff over plaint B schedule also and accordingly granted relief with respect to plaint B schedule as well. Challenge in this appeal is to that part of the decree of the first appellate court.

Learned counsel for appellant has raised various contentions including that first respondent has no possession over plaint B schedule and that even the survey number of plaint B schedule is not mentioned in the plaint. It is contended that even the actual extent of the suit property is not mentioned in the plaint schedule. According to the learned counsel property of plaintiff is lying at a lower level by five feet from plaint B schedule and hence there is no possibility of plaint B schedule forming part of property of plaintiff.

It is true that in plaint A schedule is described as 45 cents and Virivu, if any. Exhibits A1 and A2 are the documents of title produced by the plaintiff to prove title and possession of himself and his mother over plaint A, B and C schedules. The trial court, as I stated was not inclined to accept the case of plaintiff as regards plaint B schedule. It is seen from the judgment of the first appellate court that reference has been made to the documents of title produced by the plaintiff and Exts.C2 and C2(a), report and plan prepared by the Advocate Commissioner. Exhibits C2 and C2(a) show that the Surveyor measured the property with reference to the documents of title of both sides and with reference to the survey records. Advocate Commissioner has reported that survey revealed that plaint A and B schedules fall in Sy. No. 1245/2B-3 while properties of appellant/addl. 6th defendant and other defendants are comprised in Sy. No. 1245/2AB and 1245/3/1. First appellate court also found that documents of title relied on by the plaintiff coupled with Exts.C2 and C2(a) proved title of plaintiff over plaint B schedule also. A further fact which the first appellate court noticed is that Exts.A12, A12(a), A14 and A14(a), copy of report and plans in O.S. No. 478 of 1985 also supported the case of plaintiff.

True that in O.S. No. 478 of 1985 appellant/addl. 6th defendant is not a party. Notwithstanding that appellant was not a party in O.S. No. 478 of 1985 the said documents can be taken as evidence supporting the case of plaintiff. It is not as if the judgment and decree of the first appellate court merely rest on Exts.A12, A12(a), A14 and A14(a), copy of report and plans in O.S. No. 478 of 1985 to which appellant is not a party. I stated that the measurement made by the Advocate Commissioner with the assistance of Surveyor with all the relevant documents revealed that plaint B schedule forms part of the property belonging to the plaintiff. So far as the contention that plaintiff has no possession of plaint B schedule is concerned, nothing is brought to my notice to hold so. The mere fact that defendants including the appellant caused obstruction to plaint B schedule does not mean that they are in possession of plaint B schedule. In that view of the matter, contention that plaintiff has no possession over plaint B schedule cannot stand. On gong through the judgment and decree of first appellate court under challenge and ExtsC2 and C2(a) I do not find any reason to interfere with the finding entered by the first appellate court. Nor is there any substantial question of law involved requiring a decision by this Court.

Second Appeal is dismissed.

All pending Interlocutory Applications will stand dismissed.