IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 RSA.No. 360 of 2011() --------------------- AS.13/2005 of PRL.SUB COURT, KOZHIKODE OS.770/2002 of ADDITIONAL MUNSIFF COURT, KOZHIKODE-I .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------------------------------------------- T.P.DAMODARAN,S/O.LATE RAMOOTY, AGED 70 YEARS,THAZHATHE POYILIL HOUSE, KURUVISSERY AMSOM, MOKKAVOOR DESOM, KOZHIKODE TALUK,KOZHIKODE DISTRICT. BY ADV. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH RESPONDENTS/ APPELLANTS/DEFENDANTS ----------------------------------------------------------------- 1. VENUGOPALAN,S/O.LATE IBERAN,AGED 63 YEARS, ERANHOLI HOUSE,KURUVISSERY AMSOM, MOKAVOOR DESOM,KOZHIKODE TALUK, KOZHIKODE DISTRICT 2. BALARAMAN,S/O.LATE IBERAN,AGED 68 YEARS, ERANHOLI HOUSE,KURUVISSERY AMSOM, MOKAVOOR DESOM,KOZHIKODE TALUK,KOZHIKODE DISTRICT. 3. BALAKRISHNAN,S/O.LATE IBERAN,AGED 70 YEARS, ERANHOLI HOUSE,KURUVISSERY AMSOM, MOKAVOOR DESOM,KOZHIKODE TALUK,KOZHIKODE DISTRICT. 4. SAKUNTHALA,D/O.LATE IBERAN,AGED 53 YEARS, ERANHOLI HOUSE,KURUVISSERY AMSOM, MOKAVOOR DESOM,KOZHIKODE TALUK,KOZHIKODE DISTRICT. ADV. SRI.M.P.MOHAMMED ASLAM FOR R1-R4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb RSA.No. 360 of 2011 I.A.NO.789 OF 2011 IN RSA.NO.360 OF 2011 DISMISSED Sd/- M.SASIDHARAN NAMBIAR 29.06.2011 JUDGE //TRUE COPY// P.A TO JUDGE dmb M.SASIDHARAN NAMBIAR, J. ---------------------------------------- R.S.A.No. 360 OF 2011 -------------------------------------------------- Dated this the 29th day of June, 2011 JUDGMENT The plaintiff in O.S.No.770 of 2002 on the file of the Additional Munsiff Court-I, Kozhikkode, is the appellant. Defendants are the respondents. The appellant instituted a suit for mandatory and prohibitory injunction contending that the plaint schedule property belongs to him under Ext.A1 'kanam' assignment deed dated 19.12.1966 and since then he has been absolute possession for enjoyment of the property and on the western side of the property there was a lane having a width of 3 feet used by the appellant and respondents. The respondents requested the appellant to relinquish a portion of the plaint schedule property for widening the way and to convert it into a motorable way. But the appellant was not willing. In 1990, respondents put up two pillars at the entrance of his property and the gap between the pillars is 5 feet. In October 2002, they laid a complaint before the Elathur Panchayath alleging that appellant has reduced the width of the way. It was alleged that R.S.A.No. 360 OF 2011 2 on the night of 21.11.2002, respondents along with his men trespassed into the plaint schedule property and ploughed the soil bund situated on the western boundary of the plaint schedule property and they have removed a layer of stones and have destructed the sand wall on the western boundary and they have no right to encroach upon any portion of the plaint schedule property. Therefore, they are to be restrained from encroaching upon the plaint schedule property and widening the width of the way. They also sought a mandatory injunction to restore the property to its original position. The respondents resisted the suit contending that the path way lies on the western side of the plaint schedule property and the way starts from the Mokavoor – Chittadikadavu road and it reaches the southern boundary of the property of the respondents. The said pathway is having 9 feet at the point where it stars from the road and thereafter towards the north it has a width of 6 feet and the pathway was in existence from long times and appellant is not entitled to reduce the width of the way and the allegation that the width of the way is only 3 feet is false. There was no attempt to trespass as alleged and therefore the appellant is not entitled R.S.A.No. 360 OF 2011 3 to the decree as sought for. 2. The learned Munsiff, on the evidence PWs 1 and 2, DWs 1 to 3, Exts.A1 to A4, Exts.B1 and B2, CW1 and Exts.C1 to C2(a), granted a decree restraining the respondents from trespassing in the plaint schedule property and obliterating the boundary. Mandatory injunction was not granted. The respondents challenged the judgment before Sub Court, Kozhikkode in A.S.No.13 of 2005. The learned Sub Judge on re- appreciation of the evidence found that the actual dispute is with regard to the exact western boundary of the plaint schedule property and the Commissioner has not properly identified the western boundary with reference to the title deed and the revenue records and therefore held that case of the appellant that a portion of the plaint schedule property was encroached upon is not proved. The learned Sub Judge also found that if the allegation is that a portion of the plaint schedule property was encroached and made as part of the way leading to the house of the respondents, the remedy is to seek a decree for recovery of possession on the strength of title as held by the Apex Court in AIR 2008 SC (2033) Ananthula Sudhakar v. O.Buchi Reddy R.S.A.No. 360 OF 2011 4 (died) by Legal Heirs & others. The appeal was allowed and judgment of the trial court was set aside and the suit was dismissed. 3. The learned counsel appearing for the appellant was heard. The argument of the learned counsel is that the First Appellate Court did not properly appreciate the evidence. The learned counsel argued that the plaint schedule property was properly identified by the Commissioner and demarcated in Ext.C2(a) plan and the trial court elaborately considered the evidence and found that a portion of the plaint schedule property was encroached upon for widening the way and in the said circumstances finding of the First Appellate Court that there is no encroachment and exact western boundary of the plaint schedule property is not fixed is unsustainable. The learned counsel argued that the decision of the Apex Court on the facts and the evidence is not sustainable. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Even according to the appellants, the way which starts from the southern Mokavoor – Chittadikadavu road proceeds towards the R.S.A.No. 360 OF 2011 5 north and reaches the property of the respondents on the north. That way, admittedly runs along the western boundary of the plaint schedule property. The allegation is that the width of the way was only 3 feet and respondents sought permission to widen the way by taking a portion of the plaint schedule property and permission sought for was rejected and later by force, a portion on the western boundary of the plaint schedule property was made part of the way by trespass. The reliefs sought for in the suit includes a decree for mandatory injunction admitting encroachment of a portion of the plaint schedule property to widen the way by encroachment as rightly found by the First Appellate Court. In the said circumstances the dispute can only be settled by fixing the exact western boundary of the plaint schedule property. The appellant is claiming title to the plaint schedule property under Ext.A1 settlement deed. The extent of the plaint schedule property shown in Ext.A1 is 61/2 cents. The plaint schedule property, as demarcated by the Commissioner and now available, namely CDEFG is 5.91 cents. But, because of the reduction in the extent alone, it is not possible to hold that there was encroachment. It is to be borne in mind that the R.S.A.No. 360 OF 2011 6 measurement given in Ext.A1 is middle measurement. As is clear from the location of plot CDEFG, it is almost a triangular plot. The southern portion tapers. Therefore the extent calculated based on the middle measurement alone may not be the correct extent. If so based on that deficiency the dispute cannot be settled. 5. The learned Sub Judge on proper appreciation of the evidence found that the western boundary, of plot CDEFG was not fixed with reference to the title deed or revenue records. That factual finding is perfectly correct and is in accordance with law. If that be so, it cannot be said that respondents have encroached upon any portion of the plaint schedule property. In the said circumstances, I find no reason to interfere with the factual findings. As no substantial question of law is involved, the second appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE dmb