IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 SA.No. 465 of 1998(E) ------------------------------- AS.26/1994 of I ADDL. DISTRICT COURT, THRISSUR OS.2659/1987 of PRL. MUNSIFF COURT,THRISSUR .................... APPELLANTS/APPELLANTS 1 AND 2/PLAINTIFFS 1 AND 2: ------------------------------------------------------------------------------------- 1. ELIAKUTTY, W/O.LATE ITTOOP, THALAKKOTTUKARA HOUSE, PADINJARE ANGADY, ARANATTUKARA VILLAGE, THRISSUR TALUK. 2. FRANCIS, S/O.LATE ITTOOP, THALAKKOTTUKARA HOUSE, PADINJARE ANGADY, ARANATTUKARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.N.P.SAMUEL RESPONDENTS/RESPONDENTS 1 TO 3 IN A.S. AND 3RD APPELLANT/DEFENDANTS & 3RD PLAINTIFF IN O.S.: ----------------------------------------------------------------------------------- 1. ELIAKUTTY, W/O.KANNAMBUZHA MANY, PADINJARE ANGADI, ARANATTUKARA VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 2. GEORGE, S/O.ELIAKUTTY, KANNAMPUZHA HOUSE, ARANATTUKARA VILLAGE, PADINJARE ANGADI, THRISSUR DISTRICT. 3. JOHNSON, S/O.ELIAKUTTY, KANNAMPUZHA HOUSE, PADINJARE ANGADI, ARANATTUKARA VILLAGE, TRICHUR. 4. DEVASSY, S/O.LATE ITTOOP, THALAKKOTTUKARA HOUSE, PADINJARE ANGADI, ARANATTUKARA VILLAGE, THRISSUR. BY ADV. SMT.N.SUDHA DEVI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.S.GOPINATHAN, J. ---------------------------- S.A.No.465 OF 1998 ---------------------------- Dated this the 20th day of December, 2010 J U D G M E N T ~~~~~~~~~~~ The appellants are the plaintiffs in O.S.No.2659/1987 on the file of the Munsiff, Thrissur. They instituted the suit seeking a decree of mandatory as well as prohibitory injunction against the respondents with an allegation that about four years before the institution of the suit, the respondents, on one day demolished the roof of their house and reconstructed encroaching over to the roof of the house of the appellants. It was also alleged that the so called reconstruction was done in violation of the Building Rules and they had been making attempts to effect further construction encroaching into the property of the appellants. 2. The respondents, on the other hand, contended that they had not trespassed into the property of the appellants. But, the portion of the house of the appellants is situated in the property belonging to the respondents. The property mentioned S.A.No.465/1998 2 in the plaint includes a portion of the property of the respondents. There was no clear boundary to demarcate the properties of the appellants and the respondents. The respondents had not reconstructed the roof of their house. There was no encroachment to the property of the appellants and the roof of the house of the respondents was in the same position as it was when they purchased the property even before the appellants purchased the property and that the respondents had no intention to reconstruct their house or to make any alteration and that they had not intention to violate the Building Rules and prayed for dismissal of the suit. 3. After raising the issues, the parties were sent for trial. On the side of the appellants, the 2nd appellant and another were examined as PWs 1 and 2. On the side of the respondents, the 2nd respondent and another were examined as DWs1 and 2. A tax receipt produced by the appellants was marked as Ext.A1. Exts.C1 and C2 reports filed by the Commissioner and the plan appended with the commission report were marked as Exts.C1(a) and C2(a). S.A.No.465/1998 3 4. The trial court, on appraisal of the evidence, arrived at a finding that the plaint didn't contain any description of the property so as to identify the appellants' property and there is no evidence to show that the respondents had trespassed into the property of the appellants. Consequently, the suit was dismissed. 5. Assailing the decree and judgment dismissing the suit, the appellants preferred an appeal as A.S.No.26/94 before the District Court, Thrissur. The District Judge, by the impugned judgment dated 5.2.1998 concurred with the lower court. Consequently the appeal was dismissed. Now the Second Appeal. 6. Though so many questions of law were formulated, in fact, absolutely no question of law is involved. Appellants were non suited purely on finding of facts. It is not disputed that the real dispute between the parties is regarding the boundary of the properties. The appellants had not cared to schedule their property in the plaint. Even they had not cared to produce the title deed by which they got the properties. In the absence of S.A.No.465/1998 4 description of the property and non production of the document, it is only a shadow fight between the appellants and the respondents. Exts.C1 and C2 reports would show that the Commissioner had identified the properties as was pointed out by the appellants with reference to some bushes standing along the eastern and western side of the properties and not with reference to any document. The Commissioner had reported that if the boundary between the appellants and respondents was determined as pointed out by the appellants, a portion of the roof of the house of the respondents is projecting towards the property of the appellants. But, it is reported that the so called construction was 15 or 16 years old as on the date of the inspection of the properties on 25.11.1987. The suit was also filed in the year 1987. If the above report is accepted, the so called trespass was 15 or 16 years prior to the institution of the suit. But the pleadings is that four years back the respondents trespassed. There is nothing on record to show that the so called trespass was immediately before the institution of the suit. Whatever may be that, in the absence of the title deed of the appellants and description of the plaint property, it is S.A.No.465/1998 5 rather difficult to identify the boundary demarcating the property of the appellants and respondents. So, no reliance can be given to the plan and report of the Commissioner. 7. In this view of the matter, the courts below were justified in dismissing the suit for the reason that the appellants had not scheduled their property in the plaint as mandated by Order 7 Rule 3 of the Code of Civil Procedure. The courts below had non suited the appellants on question of facts and not on a question of law as the evidence on record is not sufficient enough to come to a conclusion that there is encroachment into the property of the appellants. Even if the property was not scheduled in the plaint as mandated by Order 7 Rule 3, the appellants could have succeeded provided the boundary is determined with reference to the title deed and survey records. For the best reason known to the appellants, the title deed was not produced. Neither the boundary was located. Since the boundary was not located, it cannot be said that there is encroachment, which is to be reversed by mandatory injunction. In effect there is no evidence on record to establish the title or S.A.No.465/1998 6 possession of the appellants. So long as the appellants could not establish that the roof of the respondents is encroaching to the appellants' property, the appellants are not entitled to any mandatory injunction to demolish the roof. So long as there is no evidence regarding the attempt to trespass, the appellants are not entitled to prohibitory injunction also. Suit was rightly dismissed by the trial court and confirmed in appeal. I find no merit in the appeal. Appeal is accordingly dismissed. However, I make no order as to costs. (P.S.GOPINATHAN, JUDGE) ps