IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 SA.No. 757 of 1996() -------------------- AS.44/1993 of SUB COURT, THIRUVALLA OS.553/1988 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT(S): APPELLANT/PLAINTIFF ------------------------------------------- CHACKO JACOB, AGED 48 YEARS, S/O.CHACKO PARADIYIL HOUSE, PAMALA, KUNNAMTHANAM P.O. THIRUVALLA. BY ADV. SRI.JOSEPH GEORGE RESPONDENT(S): RESPONDENTS-DEFENDANTS ------------------------------------------------------ 1. N.K.RAMACHANDRAN NAIR, NEDUMANNIL KIZHAKKEPURAKKAL, KUNNAMTHANAM, THIRUVALLA, KUNNAMTHANAM P.O. 2. KRISHNA PILLAI, MURALEEDHARAN NAIR -DO- -DO- 3. PADMANABHA PILLAI RAMAKRISHNA PILLAI NEDUMANNUMVERATH HOUSE, -DO- 4. KUTTAN REVI, KIZHAKKEPURACKAL HOUSE -DO- (DIED) 5. NARAYANAN MADHAVI, MADHAVI VILASOM, -DO-(DIED) 6. SREEDHARAN PILLAI SASIDHARAN NAIR -DO- 7. SREEDHARAN PILLAI RADHAKRISHNAN NAIR -DO- -D0- 8. V.G.KARUNAKARAN NAIR, PUTHENPURACKAL, ANJILITHANAM MURI KUNNAMTHANAM P.O. THIRUVALLA.(DIED) 9. P.K.NANU, AJAYASADANAM, KUNNAMTHANAM P.O. THIRUVALLA. 10. RAGHAVA PANICKER RAJAPPAN NAIR, BHARATHI VIHAR KUNNAMTHANAM P.O. THIRUVALLA. (THE DEATH OF R4 , R5AND R8 AND THAT NO LRS NEED BE IMPLEADED ON THE DEATH OF R4, R5 & R8 ARE RECORDED AT THE RISK OF THE APPELLANT VIDE ORDER DATED 28.3.2008 IN MEMO BEARING 1485/08.) ADV. SRI.G.JANARDHANA KURUP, SENIOR ADVOCATE FOR R3 SRI.N.RAMADAS “ SRI.JOHN K. GEORGE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A.No. 757 OF 1996 =========================== Dated this the 10th day of February,2010 JUDGMENT Plaintiff in O.S.553/1988 on the file of Munsiff Court, Thiruvalla is the appellant. Defendants are the respondents. Suit was filed for a permanent prohibitory injunction restraining the respondents from trespassing into the plaint schedule property or causing obstruction for construction of a compound wall on the western boundary of the plaint schedule property and for realisation of damages of Rs.3500/-. Plaint schedule property is 2 acres in Sy.No.211/1C of Kaviyoor Village, Mallappalli Taluk, Panthanamthitta District. Appellant obtained the property under Ext.A1 sale deed dated 8.6.1977. Case of the appellant is that he has been in possession of the plaint schedule property and a mud wall was S.A.No.757/1996 2 constructed originally on the northern boundary leaving a small portion on the north and subsequently father of the appellant, on his behalf, constructed a stone compound wall on the southern portion of the mud wall and for widening the northern public way respondents trespassed upon a portion of the plaint schedule property and demolished the mud wall and the stone wall and caused a damages. The damages of Rs.3000/- is claimed for the damaged mud wall and the stone wall. A decree for injunction was sought on the ground that respondents are obstructing the construction of a compound wall, on the northern boundary. 2. Respondents resisted the suit contending that they did not trespass into the plaint schedule property and did not demolish the mud wall or the stone compound wall. According to respondents, the width of the northern public way was not 7 to 8.5 ft. but about 12 ft. and attempt of the appellant S.A.No.757/1996 3 was to construct a compound wall further to the north of the existing compound wall encroaching upon a portion of the pathway and he has no right to do so. 3. Learned Munsiff on the evidence of Pws. 1 to 5, Dws.1 and 2 and Exts.A1 to A5, B1 and C1 to C3 found that there existed a mud wall and a stone wall on A H J E line marked by the Commissioner in Ext.C1(a) plan and part of the same was demolished by the respondents. Learned Munsiff fixed the damages so caused at Rs.1500/- and granted a decree for realisation of the same. Learned Munsiff also found that appellant is in possession of the plaint schedule property and is entitled to construct a compound wall on the northern boundary along A H J E line. 4. Respondents challenged the decree and judgment in A.S.53/1993 and the appellant filed A.S.44/1993, before Sub Court, Thiruvalla. Learned Sub Judge on re-appreciation of the evidence found S.A.No.757/1996 4 that there existed a mud wall and a stone wall on the northern boundary along A H J E line and it was demolished by respondents and therefore respondents are liable to pay damages of Rs.1500/- as found by the learned Munsiff. Learned Sub Judge also found that appellant is entitled to construct a compound wall along A H J E line, where originally a mud wall and stone wall were existing. Both the appeals were dismissed. Second Appeal is filed challenging the dismissal of A.S.44/1993. 5. Though appeal was admitted, no substantial question of law was formulated at the time of admission. In such circumstances, it is to be considered whether any substantial question of law is involved in the appeal. 6. Learned counsel appearing for the appellant argued that as per Ext.A1 the total extent of the property purchased by the appellant is 2 acres and if the northern boundary is A H J E line, the extent available with the appellant would only be 1 S.A.No.757/1996 5 acre 97 cents and plot A H J E F G is having an extent of 3 cents, which lies further to the north and it also forms part of the property covered under Ext.A1 and therefore courts below were not justified in permitting the appellant to construct a compound wall only on A H J E line leaving 3 cents plot A H J E F G to its north and therefore the decree is to be modified to that extent. Learned counsel also argued that the damages should have been fixed as fixed by the Commissioner at Rs.3000/- and therefore appellant is entitled to get enhancement of damages of Rs.1500/- over and above the damages already fixed. 7. True, Ext.A1 shows that the total extent of the property transferred thereunder is 2 acres. The northern boundary shown in Ext.A1 is not a public way, as admitted in the plaint, but the property of the respondents. The plaint itself discloses that there existed a mud wall along the northern boundary and after the appellant purchased S.A.No.757/1996 6 the property at his instance on his behalf, his father converted part of the mud wall into a stone wall. Commissioner in Ext.C1(a) plan marked the mud wall which was originally existing but demolished on the A H line and the stone wall which was demolished on H J and the existing stone wall on J E line. Therefore the report of the Commissioner with the plan shows that the original boundary wall was at A H J E line. Even according to the appellant, at his instance his father constructed a stone wall on H J E line after 1978, namely one year after purchase of the property under Ext.A1. Ext.A1 does not show that the property purchased thereunder was either enclosed by a compound wall or any part of the property was left outside the compound wall. It is in such circumstances, courts below permitted the appellant to construct a compound wall along A H J E line. The argument of the learned counsel is that Ext.C1 report of the Commissioner shows that S.A.No.757/1996 7 there existed some rubber trees on the plot A H J E F G and it forms part of the property of the appellant and therefore he is entitled to construct a compound wall enclosing that portion. The suit is only for injunction. When the evidence establishes that including the property in the possession of the predecessor appellant constructed a mud wall and subsequent to the assignment in his favour he partly constructed a stone wall at the place where the original mud wall existed, he can only be permitted to construct a compound wall at the place where the original mud wall was existing. If the appellant is to get the property which lies to its north, a proper suit is to be instituted claiming recovery of possession. In such circumstances, I find no substantial question of law is involved in the appeal when the courts below accepting the case of the appellant permitted him to construct a compound wall along A H J E line, where existed originally a mud wall. S.A.No.757/1996 8 8. Though the learned counsel appearing for the appellant also challenged the quantum of damages fixed by the courts below, it is seen that even in the plaint originally appellant has claimed only a damages of Rs.2000/-. It was enhanced to Rs.3000/- only later based on the report of the Commissioner. Courts below fixed the quantum of damages at Rs.1500/-. I find no reason to interfere with the said quantum. In any event the fixation of quantum of damages cannot be a substantial question of law involved in the appeal. In such circumstances, appeal is dismissed. No cost. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A.NO.757 /1996 --------------------- JUDGMENT 10TH FEBRUARY,2010