The appellate court upheld lower court findings based on evidence, confirming title and possession despite challenges regarding survey details.

JUDGMENT

The appeal arises out of the concurrent findings rendered by the Munsiff Court, Perumbavoor, in O.S.No.81/2007, as confirmed by the Sub Court, Perumbavoor in A.S.No.42/2010.

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

2.1. The respondent/plaintiff instituted a suit for declaration of title and injunction restraining the defendant from trespassing into the plaint schedule property. According to the plaintiff, both brothers were granted respective shares under a deed of partition. The partition deed was executed in the year 1994. On 24.10.1994, plaint schedule property having an extent of 3.35 Ares was allotted to the plaintiff as per Partition Deed No.5241/1994, which is shown as Item No.2 in B schedule in the above mentioned partition deed. Under the partition deed, the survey number under which the property was allotted is Old Survey No.117/7. The plaintiff contended that the defendant is trying to trespass into the plaint schedule property with an intention to annex the same along with his property. It was further contended that, the property included in B schedule to the said partition deed is in Re-survey No.134/20.

2.2. The defendant resisted the suit by contending that the plaintiff does not have a title over the plaint schedule property. It was further contended that the plaint schedule property is not identifiable. The defendant further contended that the property covered by old Survey No.117/7 is in Resurvey No.135/7 and not in Resurvey No.134/20.

2.3. On behalf of the plaintiff, Exts.A1 to A4 documents were produced and PW1 to PW4 were examined. On behalf of the defendant, Exts.B1 & B2 were produced and DW1 & DW2 were examined. Exts.C1 to C2(b) are the reports and survey plans of the Advocate Commissioners. The trial court, on appreciation of the oral and documentary evidence, came to the conclusion that the plaintiff has proved the identity of plaint schedule property and that it falls within Resurvey No.134/20. In holding so, the trial court relied upon the admission of the defendant in cross examination that he does not have any property in Resurvey No.134/20 and that he accepts the reports of the Advocate Commissioners. Accordingly, the suit was decreed. Aggrieved, the defendant preferred A.S.No.40/20 before the Sub Court, Perumbavoor, which was also dismissed by judgment dated 31.08.2011 by the first appellate court and hence, the present appeal.

3. This appeal was preferred with an application for condonation of delay and by order dated 29.05.2012, the delay was condoned. Thereafter, the appeal, though listed on several occasions for admission, was not taken up for consideration. Thus, this appeal is listed today for consideration.

4. Heard, Adv.Paul K.Varghese – learned counsel appearing for the appellant and Adv.P.Thomas Geeverghese –

learned counsel appearing for the respondent.

5. Adv.Paul K.Varghese - learned counsel appearing for the appellant, would submit that, in the nature of the dispute involved in the appeal, the appellant would pray for a remand of the suit. According to the learned counsel for the appellant, no prayer was incorporated in the suit for recovery of possession. The identification done by the Advocate Commissioners is improper. Further, the only evidence adduced by the plaintiff to show that he is in possession of the plaint schedule property is PW2. Hence, a cursory glance of the oral testimony given by PW2 would show that, there is an apparent conflict in the statement given by him and therefore, by relying on the evidence of PW2 alone, the trial court could not have decreed the suit.

6. Per contra, Adv.P.Thomas Geeverghese – learned counsel appearing for the respondent, countered the submissions of the learned counsel appearing for the ap