Kerala High Court
Arakka Avulla vs Pathootty on 10 July, 2025
RSA No.177 of 2025 1 2025:KER:50830
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF JULY 2025 / 19TH ASHADHA, 1947
RSA NO. 177 OF 2025
AGAINST THE JUDGMENT AND DECREE DATED 30.09.2023 IN AS NO.8
OF 2022 OF SUB COURT, SULTHANBATHERY ARISING OUT OF THE JUDGMENT AND
DECREE DATED 28.02.2022 IN OS NO.211 OF 2017 OF MUNSIFF COURT, KALPETTA
APPELLANT(S)/APPELLANT/DEFENDANT :
ARAKKA AVULLA
AGED 72 YEARS, S/O. ARAKKA MOIDU,
RESIDING AT ARAKKAL HOUSE,
MILLUMUKKU, KANIYAMBETTA POST & VILLAGE,
VYTHIRI TALUK, WAYANAD DISTRICT,
PIN - 673122
BY ADV SMT.CELINE JOSEPH
RESPONDENT(S)/RESPONDENTS/PLAINTIFFS :
1 PATHOOTTY
AGED 68 YEARS
W/O. LATE MANGATTUPARAMBAN AMMED,
MANGATTUPARAMBAN HOUSE,
MILLUMUKKU, KANIYAMBETTA POST & VILLAGE,
VYTHIRI TALUK, WAYANAD DISTRICT.,
PIN - 673576
2 RIYAS
AGED 42 YEARS
S/O. LATE MANGATTUPARAMBAN AMMED,
MANGATTUPARAMBAN HOUSE,
MILLUMUKKU, KANIYAMBETTA POST & VILLAGE,
VYTHIRI TALUK,
WAYANAD DISTRICT, PIN - 673576
RSA No.177 of 2025 2 2025:KER:50830
3 MUMTHAZ.M.P
AGED 37 YEARS
D/O. LATE MANGATTUPARAMBAN AMMED,
MANGATTUPARAMBAN HOUSE, MILLUMUKKU,
KANIYAMBETTA POST & VILLAGE,
VYTHIRI TALUK, WAYANAD DISTRICT,
PIN - 673576
BY ADVS.
SHRI.ARUN KRISHNA DHAN, R1 TO R3
SRI.ARJUN SREEDHAR, R1 TO R3
SHRI.T.K.SANDEEP, R1 TO R3
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
10.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA No.177 of 2025 3 2025:KER:50830
EASWARAN S., J.
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R.S.A. No.177 of 2025
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Dated this the 10th day of July, 2025
JUDGMENT
The defendant in a suit (O.S. No.211 of 2017 on the files of the Munsiff court, Kalpetta), filed for fixation of boundary and recovery of possession have come up in the present appeal, aggrieved by the concurrent findings recorded by the trial court as well as the first appellate court.
2. The brief facts necessary for disposal of the appeal are as follows:
The plaintiffs derived the right, title, and interest over the property by virtue of Ext.A1 document No.466 of 1980. The plaint A Schedule property is shown as item No.1. During 2013, Sri. Mangattupparamban Ammed, the husband of the 1st plaintiff,, for the purpose of formation of a road on the southern side of the property, relinquished an extent of 0.0013 hectares from the southern boundary and it was compensated by purchase of a property equivalent to 0.0013 hectares from one Sooppy vide document RSA No.177 of 2025 4 2025:KER:50830 No.1559/2013 which is shown as item No.2 of the Plaint A schedule. The plaint A schedule properties are lying contiguous and the said Ammed had been in absolute possession and enjoyment over the same. On the death of Sri.Ammed on 25.12.2015, the rights upon the plaint schedule property are devolved on the plaintiffs who are the legal heirs. Since the plaintiffs are not permanently residing in the house constructed in Item No.1, during 2016, the defendant managed to remove the old hibiscus hedge on the northern boundary of plaint A schedule item No.1 and planted new hibiscus plant above the kollu on the northern aspect of the property and thereby reduced a portion of item No.1 of plaint A Schedule property on its northern aspect into his unlawful possession. The reduced portion is shown as the plaint B schedule. Despite their repeated requests, the defendant did not restore the property, and hence the suit. The defendant entered appearance and contested the claim. The defendant, however, admitted the title of the plaintiffs in Ext.A1. However, it was stated that the southern boundary of the defendant's property touching the plaintiffs' property is a mud cutting having an average height of 4 to 6 feet. It was also stated that during the excavation of soil by the plaintiffs for the construction of the house, no space was left along the southern boundary of the defendant's RSA No.177 of 2025 5 2025:KER:50830 property. The identification of the plot relied on by the plaintiffs is also incorrect. Further contentions were also raised. On behalf of the plaintiffs Exts.A1 to A17 documents were marked. No documentary evidence was adduced on the side of the defendant. PW1 was examined on the side of the plaintiffs and DW1 was examined on the side of the defendant. An advocate commissioner was deputed to identify the property. Exts.C1 and C3 are the reports of the advocate commissioner, and Exts.C2 and C4 are the sketch and plan. The trial court, on the basis of the oral and documentary evidence, proceeded to consider the respective claims and found that the defendant had not taken any steps to examine the advocate commissioner or file any application for remitting the report, and accordingly decreed the suit partly. Though an appeal, A.S. No.8 of 2022 was preferred by the defendant before the Sub Court, Sulthanbathery, the same ended in dismissal. Aggrieved by that, the present appeal is preferred by the defendant.
3. Heard Smt. Celine Joseph, the learned counsel appearing for the appellant/defendant and Sri. Arun Krishna Dhan, the learned counsel appearing for the respondents/plaintiffs.
4. On consideration of the rival submissions raised across the Bar, this Court finds that no substantial questions of law arise for RSA No.177 of 2025 6 2025:KER:50830 consideration in this appeal inasmuch as the defendant failed to substantiate his claim of possession over 'B' schedule property. It is pertinent to mention that the original written statement filed on behalf of the defendant, the title of the plaintiffs over the plaint schedule property by virtue of document No.466 of 1980 is admitted. If that be so, it was the bounden duty of the defendant to substantiate that the plaintiffs did not have any right, title and interest over the plaint schedule property. Admittedly, the defendant failed to object to the report of the advocate commissioner or examine the advocate commissioner to prove the alleged disparity and the error that has crept into his report.
5. Pertinently, the first appellate court found that the defendant did not have any property in R.S. No.238/35. In the absence of any evidence having been adduced by the defendant to show that the property possessed by him as plaint B schedule property was in any manner derived through any documents, the irresistible conclusion is that the finding of the fact recorded by the trial court as well as the first appellate court is perfectly correct and does not call for any interference. It is now settled law that the sufficiency of the evidence available before the trial court as well as the first appellate court, in arriving at a decision, will not amount to a substantial question of RSA No.177 of 2025 7 2025:KER:50830 law requiring this Court to exercise the power under Section 100 of the Code of Civil Procedure. Resultantly, finding that the appeal lacks merit and no substantial questions of law arise for consideration, this same is dismissed. No order as to costs.
Sd/-
EASWARAN S. JUDGE NS