1. Defendants 2 and 3, in a suit for recovery of possession, permanent prohibitory injunction and mandatory injunction has come up in the present appeal, aggrieved by the concurrent findings rendered against them.

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

                  2.1.    Plaintiffs 2 to 7 are the children of one Elanjimittathu Thomman. The deceased 1st plaintiff is the widow of late Elanjimittathu Thomman and mother of plaintiffs 2 to 7. Plaint ‘A’ schedule property comprises of 6 cents of land in Sy. Nos. 524/2 and 3 of Maradu Village obtained by the father of the plaintiffs 2 to 7. The plaint ‘A’ schedule property is included as schedule ‘B’ to the partition deed No. 1511/56 of Thripunithura Sub Registry and are lying in Sy. Nos. 524/2 and 3. Sy. No. 524/2 was later subdivided as 524/5 of Maradu Village. The 1st defendant has some property on the northern side of the plaint schedule property, and it is contended that a portion of the property was lost by merging with the road due to the constant use of the property as a road by the people of the locality.

                  2.2.    O.S. No. 1269 of 1996 was filed against the plaintiffs 1, 2, 4 and 7 by the 1st defendant for injunction in respect of 2 cents of land in Sy. No. 523/1 and 523/4 claiming title and possession as per partition deed No. 3343/87. Later, the suit was ‘not-pressed’ by the 1st defendant and the same was dismissed. Subsequently, the 1st defendant attempted to assign a portion of plaint ‘A’ schedule property to the 2nd defendant and that when the 2nd plaintiff visited the property, it was found that a portion of ‘A’ schedule property was encroached by the defendants. It is contended that the 1st defendant did not have any property in Sy. Nos. 524/2 and 3 of Maradu village. The defendants are trying to make constructions in the ‘B’ schedule property and are likely to tamper with the boundaries and in the nature of plaint ‘B’ schedule property, the defendants have no right to change the character of the plaint schedule property.

                  2.3.    During the pendency of the suit, the defendants 2 and 3 removed the barbed fencing separating the ‘B’ schedule property from the property of the defendants and encroached upon an extent of 0.376 sq. links of ‘B’ schedule property and constructed a new compound wall and reduced the width of the access of ‘B’ schedule property. Thus, a prayer for recovery is also prayed for.

                  2.4. The 1st defendant contested the suit by contending that the 6 cents of the property obtained by the father of the plaintiffs 2 to 7 and the husband of the 1st plaintiff consisted of 3 cents each in Sy. Nos. 524/2 and 3 of Maradu Village. Out of the 3 cents in Sy. No. 524/2, 1.358 cents was in occupation of one George as kudikidappu and then it was assigned to him as per Order in O.A. No. 3184/70 dated 19.09.1972. The predecessor of the plaintiffs had obtained 4.642 cents after adjusting the kudikidappu. The defendant obtained ownership and possession of 2 cents, consisting of 1.250 cents in Sy. 524/4 and 0.750 cents in Sy. No. 523/1 of Maradu Village as per ‘B’ schedule to partition deed No. 3343/87 of Thripunithura Sub Registry. The 2nd defendant contested the suit by adopting the contentions of the 1st defendant in the written statement. After amendment, an additional written statement was filed by the 2nd defendant. The 3rd defendant resisted the suit by contending that the 2nd defendant is a company, duly represented by its Director and, therefore, it is not a necessary party.

                  2.5.    By judgment dated 19.02.2003, the suit was dismissed. Aggrieved, A.S. No. 131 of 2003 was preferred by the plaintiffs and the First Appellate Court by judgment dated 19.12.2006 allowed the appeal and remanded the matter for fresh consideration. Aggrieved, the defendants 2 and 3 filed FAO No. 197 of 2007 which was dismissed on 01.08.2007 by this Court. Accordingly, the matter went back for a trial. After remand, the plaintiffs adduced further evidence and took out an Advocate Commissioner who had filed Exts. C1 series to Exts. C4 series of reports and sketches, and Ext. C5 Commission report. The Trial Court on appreciation of the evidence on record, concluded that the defendants failed to substantiate their claim that they had derived any title over the property in Sy. No. 524/3 and 524/5 of Maradu Village. It was further found that the property covered by Ext. B4 was not caused to be identified in order to sustain the claim that Ext. B4 is the title deed in respect of plaint ‘B’ schedule property. The Trial Court also relied on the admission of DW1 which shows that the property purchased by the 2nd defendant was lying on the western side of the plaintiffs’ property for which the 2nd defendant had unsuccessfully negotiated with the 8th plaintiff. Resultantly, the suit was decreed in favour of the plaintiffs.

                  2.6. Aggrieved, defendants 2 and 3 preferred A.S. No. 140 of 2012 before the I Additional District Court, Ernakulam. The First Appellate Court, on reappreciation of the evidence, found that the objection raised by the defendants 2 and 3 to the report of the Advocate Commissioner cannot be sustained inasmuch as the report was based on the measurement conducted by the District Survey Superintendent. The First Appellate Court also found that when the suit was initially dismissed, the 2nd defendant had encroached upon the portion of the property and had made several constructions by which the lie of the property was beyond identification. Accordingly, the appeal was dismissed and the findings of the Trial Court was affirmed and hence the present appeal.

3. On 22.05.2014, this Court admitted the appeal on the substantial questions of law framed in the memorandum of appeal which reads as follows:

                  “A. Whether, on the facts and in the circumstances of the case, were not the courts below in error in holding that respondents 1 – 8/plaintiffs had title to the disputed property?

                  B. Whether, on the facts and in the circumstances of the case, were not the courts below in error in not applying the principle that the plaintiff had to succeed on the strength of his case and not on the failure of the defendant to prove his case?

                  C. Whether, on the facts and in the circumstances of the case, were not the courts below in error in holding that the pleadings of the appellant amounted to admission of title, in as much as title was in issue and had to be otherwise proved and as admission does not create title?

                  D. Were the courts below correct from a point of law in finding that there was an admission of title, whereas no such construction could be put on the pleadings? Is not the findings perverse?

                  E. In a case where oral evidence of the plaintiff disproves the plaint claim, can a decree be granted on the basis of a report/plan of commissioner?

                  F. Have not the courts below gone wrong in not considering the objections filed by the appellant to the report/plan filed by the commissioner and not complying with the remand order, particularly in identifying the plot alleged to be part of road?”

4. Heard Sri. K. G. Balasubramanian, the learned Counsel appearing for the appellants and Smt. Jeena Joseph, the learned Counsel appearing for the respondents 1, 2 and 7.

5. Sri. K. G. Balasubramanian, the learned Counsel appearing of the appellants, primarily contended that the findings of the Courts below cannot be sustained because of the error committed by the Advocate Commissioner in identifying the property in question. It is the specific case of the learned Counsel for the appellants that the appellants are not bound by the subdivision that occurred in the resurvey by which the property covered under Sy. No. 524/2 was subdivided into 524/5 and that the said subdivision was without notice to either the predecessor of the defendants or the defendants. The decree passed by the Courts below is purely based on the report of the Advocate Commissioner, which cannot be sustained because the report of the Advocate Commissioner is against the order of remand by the First Appellate Court in A.S. No. 131 of 2003.

                  5.1.    Referring further to the judgment passed by the First Appellate Court in the above appeal, the learned Counsel for the appellants asserted that the Advocate Commissioner was bound to identify as to whether any portion of the plaint schedule property had merged with a road. It is further pointed out that the title of the plaintiff as found by the First Appellate Court, is only 4.642 cents and that the remaining property of 1.156 cents of property has not been identified by the Advocate Commissioner. The Advocate Commissioner, having not complied with the directions of the First Appellate Court could not have sustained his report based on surmises and conjunctions and thus it is pointed out that the decree passed by the Trial Court is unsustainable.

6. Per contra, Smt. Jeena Joseph, the learned Counsel appearing for the respondents 1, 2 and 7 contended that the concurrent findings recorded by the Courts below do not call for any interference in exercise of the powers under Section 100 of the Code of Civil Procedure, 1908. It is further contended that the plea now raised before this Court by the appellants as regards the improper identification of the property by the Advocate Commissioner cannot be sustained for two reasons; (a) the defendants have no case that they have got any right, title and interest over the property covered by Sy. No. 524/5. (b) The defendants have admitted the title of the plaintiffs.

                  6.1. It is further pointed out that the property covered by Ext. B4 has not been identified by the defendants to sustain their plea that plaint ‘B’ schedule property forms part of the property covered by Ext. B4 document. Lastly, it is pointed out that the plaintiffs were constrained to seek recovery of possession and mandatory injunction, especially after the dismissal of the suit initially, several constructions were made by the defendants thus leaving the property beyond the scope of the identification. It is pointed out that the defendants cannot take advantage of the fact that a portion of the plaint schedule property was encroached after the dismissal of the suit which was later interfered with by the First Appellate Court.

7. I have considered the rival submissions raised across the Bar, perused the judgments rendered by the Courts below and also the records of the case.

8. The main question which should be bestowed upon by this Court is, whether any substantial questions of law arises for consideration in the present appeal? It is true that on 22.05.2014, this Court had admitted this appeal on the substantial questions of law as framed in the memorandum of appeal. Therefore, it is obvious that this Court has not specifically framed any substantial questions of law but had issued notice on the questions of law as framed in the memorandum of appeal.

9. It is now trite law that even if a second appeal is admitted by the Court, during the course of final hearing, if it is found that no substantial questions of law arise for consideration, the High Court could still dismiss the appeal on the said ground. Therefore, the question before this Court would be, whether the substantial questions of law as framed by the appellant arise for consideration in the present appeal or not?

10. With the above backdrop, this Court proceeds to consider the respective contentions raised before this Court. One of the objections raised by the learned Counsel for the appellant is that the defendants are not bound by the subdivision of Sy. No. 524/2 into 524/5. This Court fails to comprehend as to how the appellant could resist the suit on the ground that they are not bound by the subdivision done by the Survey Authorities. It has already come out in evidence that the appellants do not have any property in Sy. Nos. 524/2 and 3 to be really aggrieved by the so-called subdivision.

11. Equally so, this Court is not impressed by the argument of the learned Counsel for the appellants that the plaintiffs must prove their title in respect of the ‘B’ schedule property because in the written statement there is a specific averment by which the title of the predecessor of the plaintiffs stands admitted. It is indisputable that the predecessor of the plaintiff had obtained an extent of 6 cents constituted by 3 cents each in Sy. No. 524/3 and 524/2. It has also come out in evidence that 1.358 cents of land is set apart to a kudikidappukaran and what remains is 4.642 cents.

12. That apart, the objection on the identity of plaint ‘B’ schedule property also does not have any substance since the identity of the property was not disputed by the appellants in the written statement. A perusal of Ext. C4(a) plan submitted by the Advocate Commissioner shows that he had identified and demarcated plaint ‘A’ schedule property covered by Ext. A3 title deed of the plaintiffs by surveying the same on the basis of the whole survey records.

13. In Ext. C3 plan No. 2, the Advocate Commissioner has also reported that the plaint schedule property is lying in old Sy. No. 523/3 and 524/5. So long as the appellants/defendants 2 and 3 do not have a case that they have perfected the title over the property covered in Sy. No. 524/5 by adverse possession, necessarily, the contention must fail.

14. The further argument raised by the learned Counsel for the appellants is that the Advocate Commissioner was bound to identify the property which has been merged into the road, and in the absence of any such identification, Ext. C4(a) plan must fail. However, it must be noted that the Advocate Commissioner has identified the property covered in Sy. No. 524/3 and 5 and found that no portion of the said property was lost for the purpose of developing the road lying on its northern side. This finding is purely a question of fact and in the absence of any contra evidence and the appreciation of the said fact by the Trial Court not being perverse, this Court finds that the findings rendered by the Trial Court essentially revolves around the appreciation of evidence.

15. Further, it must be noted that the objection regarding the identity of the plaint ‘B’ schedule property must be judged in the context of the clear admission made by the defendants 2 and 3 that the predecessor of the plaintiffs had got 6 cents of property as per Ext. A3 consisting of 3 cents each lying in Sy. No. 524/2 and 3. The Trial Court has clearly found that the properties of the plaintiff obtained by the predecessor in Ext. A3 in Sy. No. 524/2 remained in 524/5 and 1.358 offered towards kudikidappu by the predecessor of the plaintiffs could only be from the western side of the plaint ‘A’ schedule property as demarcated by the Advocate Commissioner under Ext. C4(a) plan. That is not enough material before this Court to overturn the findings of the Trial Court on the existence of 1.358 cents of land offered towards kudikidappu by the predecessor of the plaintiffs. That apart, a mere statement during the cross examination of PW1 that the kudikidappu is in the northern side of the plaint ‘A’ schedule property cannot be put against them because of the conclusive findings of the Advocate Commissioner.

16. It must be remembered that the 2nd defendant is claiming title based on the assignment made by the 1st defendant and also the purchase of kudikidappu from the kudikidappukaran. Despite raising a contention that the property purchased from the 1st defendant is lying on the northern side of the plaint ‘A’ schedule property, the defendants had failed to adduce any evidence to prove that the 1st defendant had obtained title or possession over any extent of property in Sy. No. 524/3 and 5 to put up a claim over the property identified by the Advocate Commissioner. Moreover, this Court cannot remain oblivious of the specific finding of the Trial Court that after the dismissal of the suit initially which was reversed by the First Appellate Court, the defendant had made substantial constructions encroaching upon the plaint ‘B’ schedule property. These overt acts of the defendants had led to the situation where the plaintiffs were constrained to seek recovery of possession and also the mandatory injunction to remove the constructions made by the defendants 2 and 3.

17. On an overall consideration of the facts presented before this Court, this Court is of the considered view that the findings rendered by the Courts below purely hinges on the appreciation of evidence and including that of the report of the Advocate Commissioner. In such circumstances, unless it is shown that the appreciation of evidence by the Courts below is perverse, this Court need not exercise its powers under Section 100 of the Code of Civil Procedure, 1908, and revisit those findings. Therefore, it is inevitable for this Court to hold that no substantial questions of law arise for consideration as raised by the appellants. Accordingly, finding that no substantial questions of law arise for consideration, this appeal is dismissed with costs.