MANGALATH THOMAS Vs. EZHUMAYIL CHACKO THOMAS

JUDGEMENT

(1.) FOLLOWING are the substantial questions of law framed for a decision in this Second Appeal arising from the judgment and decree of the Additional Sub Court, Thalassery in A.S. No.75 of 2003 reversing the dismissal of O.S. No.340 of 1997 by the Munsiff's Court, Koothuparamba.

(2.) APPELLANT contended that road and thodu referred above form part of the property belonging to him as per Ext.B1 and comprised in Sy. No. 498. He produced Ext. B2, receipt for payment of revenue and Ext. B3, provisional plan of property comprised in Sy. No. 498. Learned counsel has placed reliance on Exts. X1 to X2(a) and the evidence of D.W.2.

(3.) LEARNED counsel contended that Ext. C4, provisional plan prepared by the Advocate Commissioner with the assistance of a Surveyor would show that western portion of the road falls in Sy. No. 498 and hence claim of respondent for possession over that portion of the road cannot stand. It is also the case that even the cause of action alleged is attempt to cut down bamboo clusters and trees and Ext. C4 would show that those trees are standing in the property comprised in Sy. No. 498. Learned counsel invited my attention to the decision in Savithri Amma v. Padmavathi Amma (1990 (1) KLT 887) to contend that there is no invariable rule that where there is conflict between extent, survey number, boundary, etc., one should prevail over the other and it is a matter to be decided on a true construction of the document. It is contended that first appellate court has granted relief without even the Panchayat on the party array notwithstanding Exts. X1 to X2(a).