In a regular second appeal regarding a suit for boundary fixation and injunction, the High Court of Kerala dismissed the appeal in limine without admission, finding no merit in the contentions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN
MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930
RSA.No. 756 of 2008
-----------------------AS.15/2006 of PRL.SUB COURT,THALASSERY OS.487/1998 of MUNSIFF COURT, THALASSERY
APPELLANT/APPELLANT/DEFENDANT:-
SHOBHA ASOKAN, ATTADAPPA ATTADAPPA P.O., KANNUR.
BY ADV. SRI.V.PREMCHAND
RESPONDENT:RESPONDENT/PLAINTIFF:-
CHATHOTH MADHUSOODANAN, CHATHOTH HOUSE,SPINNING MILL ROAD, KAKKAD P.O., KANNUR -5.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.P. BALACHANDRAN, J.
R.S.A. No 756 of 2008 - F
------------------------------------------------------Dated this the 1st September 2008
JUDGMENT
The defendant in O.S. No 487 of 1998 on the file of the Munsiff's Court, Thalassery is the appellant assailing the concurrent verdict of the courts below against him. The suit, O.S. No 487 of 1998 aforesaid, was filed by the respondent for fixation of boundary and for consequential injunction, inter alia, on the allegation that the schedule property originally belonged to one Poovan Karunakaran and others; that on 17.07.1998 they assigned the schedule property in his favour under Ext A1 sale deed; that the said property is having definite boundaries on all sides except on the northern side; that the extent assigned in favour of the plaintiff is 27 cents; that the defendant is holding property on the northern side of the schedule property and it lies at a higher level than the property of the defendant; that all the side measurements of the schedule property were shown in Ext A1 executed in favour of the plaintiff; that to the eastern and southern side of the schedule property is situated public
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lane; that the defendant has also purchased her land from the predecessors of the plaintiff's vendors and he has been attempting to trespass into the northern side of plaint schedule property with the intention of annexing certain portion of the schedule property with his property; that on the northern side of schedule property there are age old jack trees and the defendants had attempted to cut and remove the same and that on the intervention of the plaintiff defendant has withdrawn from his attempt; that he has threatened that he would come with greater force and trespass into the schedule property and hence the suit for fixation of boundary and for consequential prohibitory injunction.
2.The defendant resisted the suit by filing written statement contending that the defendant along with her husband Asokan purchased 27 cents of land from one Makkachi Assainar as per Ext B2 sale deed; that the allegation that the defendant attempted to trespass into the schedule property and commit waste is not correct; that the southern side of the defendant's property is situated at a higher level than the schedule property; that there is clear and distinct boundary on the southern side of the defendant's property to separate the same from the schedule property; that the averment in
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the plaint that the southern boundary of the schedule property is public pathway is not correct; that the said pathway is included in the schedule property; that the southern boundary of the schedule property is Kizhakke Palayulla Valappu paramba and this southern boundary also is the boundary of re-survey No 57/4; that the jack trees situated on the southern boundary of the defendant's property belong to the defendant and that since plaint schedule property is having definite boundary on all sides there is no cause of action for the suit and that the suit be therefore dismissed.
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4
appeal concurring with the findings of the trial court and hence this R.S.A by the defendant in the suit.
5
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fixing the northern boundary of the schedule property defendant should have filed objection to the commissioner's report and adduced evidence in that behalf. Further it is also worthy to note that even
the defendant who raised such a contention has not entered the witness box to swear to her contention. Hence there is absolutely no merit in the contentions advanced on behalf of the appellant. It is also seen from Ext C2 plan that the appellant-defendant is also in possession of B3, B4 and B5 plots shown therein which actually do
not belong to him as per the sale deed in his favour and his claim appears to be that he should have such excess land on the south as well. There is no questions of law and much less any substantial question of law for consideration by this court in this R.S.A. There is absolutely no merit in this Second Appeal and the Second Appeal is
only to be dismissed in limine refusing admission.
In the result, I dismiss this R.S.A in limine refusing admission.
Sd/K.P. BALACHANDRAN Judge
01/09/2008 en
[true copy]
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SHOBHA ASOKAN
CHATHOTH MADHUSOODANAN
K.P. BALACHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
