Court emphasized that issues requiring a debatable question of law must be present for appeal, dismissing the appeal due to lack of substantial question.

J U D G M E N T

The appeal arises out of the concurrent findings rendered by the Munsiff’s Court, Vadakara, in a suit for fixation of boundary, declaration and for consequential injunction, as affirmed by the Sub Court, Vadakara, in A.S No.20/2012.

2. The brief facts necessary for the disposal of the appeal are as follows:-

The plaintiff / appellant claimed right title and interest over the plaint schedule property as per partition deed No.370/1968 of SRO Vadakara, out of which the B schedule property in the Deed was the share allotted to the mother of the plaintiff. From the said property, the mother of the plaintiff sold 15 cents situated at the eastern side of the plaint schedule property as per registered deed No.553/1977 of SRO Vadakara. The plaint schedule property is thus described after deducting 15 cents in the eastern side of the B schedule property. It is further contended that the maternal grandmother of the plaintiff had right over the plaint schedule property as per registered deed No.1653/1958 and after her death the right devolved upon the legal heirs and as per the partition deed No.369/1968, the mother had acquired the property. When the partition deeds were executed namely deed Nos.369/1968 and 370/1968, the plaintiff, her mother and her sister were the only persons residing in the residential house. As per the said deeds, the A schedule property described as one which is set apart for common enjoyment. The parties to the deed filed O.S No.281/1998, for partition of the A schedule property, a preliminary decree was passed and though the plaintiff prayed for reservation of the residential building, the said suit is at the stage of final decree application. The decree schedule property in O.S No.281/1998, is the property allotted for common enjoyment and that the plaintiff, his wife and children are residing in the residential building described in the document No.370/1968. The defendants resisted the suit and contended that the present suit is not maintainable inasmuch as the parties were allotted separate shares under the partition deed, there were natural boundaries separating the A and B schedule properties shown in Deed No.370/1968. If the contention of the plaintiff is accepted, necessarily the portion of the A schedule property described in the partition deed will also fall within the share of the plaintiff and therefore there will be an enlargement of share, which is impermissible. On behalf of the plaintiff, Exts.A1 to A7 documents were produced and PW1 and PW2 were examined. On behalf of defendants, Exts.B1 to B11 documents were produced and none was examined. Exts.C1 to C8 are the reports and plans of the Advocate Commissioner. The trial court on appreciation of the oral and documentary evidence came to the conclusion that going by the oral testimony of PW1, the plaintiff, there is admittedly a level difference between the A and B schedule property described in deed No.370/1968 and thus the B schedule property is separated by the natural boundaries. It was further found that the description of the plaint schedule property is not correct and that there is misjoinder of party as well as cause of action. Accordingly, the suit was dismissed. Aggrieved, the plaintiff preferred A.S No.20/2012 before the Sub Court, Vadakara, which was also dismissed by judgment dated 15.02.2014 and hence the present appeal.

3. On 30.06.2014, this Court issued notice on the substantial questions of law framed in the memorandum of appeal as follows:-

(i) Where the courts below correct in relying on the description of the property instead of relying as the extent, measurement