IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 RSA.NO. 1142 OF 2008() ----------------------------------- AS.23/2007 OF SUB COURT, PERUMBAVOOR OS.50/2001 OF MUNSIFF COURT, KOLENCHERRRY .................... APPELLANTS/APPELLANTS/DEFENDANTS -------------------------------------------------------- 1. THAMPI @ YACOB, AGED 38 S/O. OUSEPH KOTTAMATHU HOUSE, PUTTUMANOOR KARA, PUTHENCRUZ VILLAGE, KUNNATHUNADU TALUK. 2. PAULSON, AGED 35, S/O.KURIACKO, KOTTANATHU HOUSE, MELAR KARA, PUTHENCRUZ VILLAGE. BY ADV. SRI.SUNU P.JOHN SRI.K.C.PAULOSE RESPONDENT(S): RESPONDENTS.PLAINTIFF --------------------------------------------------------------- 1. THANKAPPAN AGED ABOUT 60, S/O.VALLON, SUJA BHAVAN, MATTAKUZHI KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. 2. KARTHIYANI, AGED ABOUT 55,W/O.THANKAPPAN SUJA BHAVAN, MATTAKUZHI KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. 3. SUBEESH, AGED ABOUT 28, S/O.THANKAPPAN, SUJA BHAVAN, MATTAKUZHI KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1142 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16th day of October, 2009 J U D G M E N T ---------------------- Respondents claimed to be the owners of plaint A to C schedule properties on the strength of Exts.A1 to A3. According to them that property lies in ‘L’ shape. Property on the west of A schedule, south of B schedule and east of C schedule belonged to the appellants. Alleging that appellants are attempting to construct a building through the southern boundary of B schedule respondents filed O.S. No.46 of 2000 seeking decree for prohibitory injunction. They alleged that during the pendency of that suit appellants constructed the building through the southern boundary of B schedule and encroached into a portion of B schedule which is marked in the plan as D schedule having an extent of 1.05 cents. Respondents claimed recovery of possession of D schedule on the strength of their title, a mandatory injunction for removing portion of the building constructed in the encroached portion and for prohibitory injunction. Appellants contended that compound wall was constructed within their property and that plaint D schedule is not part of plaint B schedule. They filed additional written statement contending that there was a curve on the R.S.A. NO.1142 of 2008 -: 2 :- boundary of B schedule and to rectify that curve both sides surrendered portions from their respective properties and straightened the southern boundary. Learned munsiff found that appellants have trespassed into a portion of plaint B schedule and granted decree as prayed for. First appellate court has confirmed the judgment and decree and dismissed the appeal. Hence this Second Appeal. 2. Substantial question of law raised in the memorandum of appeal is whether in the absence of a prayer for declaration of title, relief granted for recovery of possession is correct? 3. So far as the alleged trespass is concerned, there is evidence of P.W2, Advocate Commissioner and P.W3, Surveyor. Properties were measured with reference to the documents of title produced by the respondents. Exhibit C1 is the report and C1(a) is the plan. Survey revealed that 16 sq. metres from B schedule is in the possession of the appellants. On the other hand, appellants have not produced any document to prove their claim that the alleged trespassed area belongs to them. Thus title of respondents over the encroached area is proved by Exts.A1 to A3, C1, C1(a) and evidence of P.Ws.1 to 3. There is also no plea of adverse possession and limitation. First appellate court concurred with the finding of the trial R.S.A. NO.1142 of 2008 -: 3 :- court that appellants have trespassed into a portion of B schedule as noted by the Advocate Commissioner in Ext.C1(a), plan. Finding of fact is based on evidence and involved no substantial question of law. 4. Substantial question of law urged in the Second Appeal is whether in the absence of a prayer for declaration of title recovery of possession could be granted. It is not necessary that while seeking recovery of possession there must be a declaration of title in every case. Declaration is required only when plaintiff thinks that a cloud is created on his title and it is necessary to remove such a cloud by a declaration. When recovery is sought for on the strength of title, what is required is to prove the title claimed. Respondents have proved their title over the disputed portion and on the strength of that finding, recovery of possession has been allowed. No substantial question of law is involved requiring admission of the appeal and notice to the respondents. Second Appeal fails and it is dismissed in limine. Interlocutory Application No.2523 of 2008 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv