Insufficient evidence for boundary fixation overrules substantive grounds for appeal in property dispute.

J U D G M E N T

This appeal arises out of an order of remand in AS No.291/2007 on the files of the Additional District Court-II, Thiruvananthapuram, which arises from the judgment and decree of the Principal Sub Court, Thiruvananthapuram in OS No.831/96, which was preferred by the appellants herein for declaration of title, putting up of boundary, for prohibitory injunction and other consequential reliefs. The suit was tried along with OS Nos.1318/94. Both the suits were dismissed and two appeals, AS Nos.291/2007 and 213/2007, were filed before the Additional District Court-II, Thiruvananthapuram. The first appellate court by judgment dated 30.3.2011 allowed AS No.291/2007 remanding OS No.831/1996 for fresh consideration with a direction to identify and measure out the property in survey No.1445-B and to demarcate the dividing boundary between survey Nos.1445-A and 1445-B. The plaintiffs impugn the said judgment on the ground that the order of remand is unsustainable because, despite the possession of the plaintiffs over the property as shown in Ext.C3(b) plan, the courts below could not have set aside the same. It is also pointed out that going by Exts.B11 to B14 and also in view of the fact that re-survey has been finalised, the boundaries cannot be refixed through the process of the court.

2. Heard Sri.Hariharaputhran, the learned counsel appearing for the appellants and Smt.Sindu Santhalingam, the learned counsel appearing for the respondents.

3. The question before this Court is whether this Court should entertain this appeal and whether any substantial question of law arises for consideration. As stated earlier, two appeals were considered together by common judgment. As against the judgment and decree in AS No.213/2007, the appellants herein preferred RSA No.1453/2011 and by a separate judgment rendered today, this Court had dismissed the said appeal, finding that no substantial question of law arises for consideration. So much so, the title of the respondents/plaintiff and

3^rd defendant in OS No.1318/94 having been affirmed by dismissal of RSA No.1453/2011, what remains to be seen is whether the appellants in the present case are entitled to sustain this appeal.

4. It has come out in evidence that the evidence for entitling the appellants to sustain the plea of fixation of boundary is not sufficient and that is precisely the reason why the first appellate court remanded the matter for fresh consideration. At this point of time, whether the plea of the appellants that the finalization of the re-survey would disentitle the parties to claim fixation of the boundary requires consideration. It must be noted that the properties of the plaintiffs and the defendants lie in separate survey numbers. While rendering the judgment in RSA No.1453/2011, this Court has found that the findings of the first appellate court that the property sold by the plaintiff in OS No.1318/94 is sandwiched between two properties and that the position of the said property is crucial for identification of the property of the plaintiff in that suit and that the identity of the said property in survey No.1445-A having been concluded, then the question remains is whether the plaintiffs in the present suit are entitled for fixation of boundary.

5. In the absence of any cogent evidence to sustain the plea for fixation of boundary, one cannot find fault with the first appellate court in having remanded the suit for a fresh consideration, because admittedly, the properties of the appellants and the respondents lie in different survey numbers. Therefore, this Court is inclined to conclude that no substantial question of law arises for consideration in the appeal, warranting interference in the order of remand. No grounds are made out for interference in th