IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 SA.No. 637 of 1995(A) --------------------- AS.111/1990 of DISTRICT COURT, KOTTAYAM OS.299/1986 of MUNSIF COURT, KANJIRAPPALLY .................... APPELLANT(S)/APPELLANT/DEFENDANT: -------------- FAKKIR SYED MOHAMMED, RESIDING AT PULIMOOTTIL HOUSE, PALAMPRA BHAGOM, KANJIRAPPALLY MURI, -DO- VILLAGE. BY ADV. T.I.ABDUL SALAM RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- CHACKO VARGHESE, RESIDING AT KATTUPARA HOUSE, KANJIRAPPALLY MURI, KANJIRAPPALLY VILLAGE. ADV. SRI.N.A.AUGUSTINE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT NO REPRESENTATION FOR EITHER PARTIES. HENCE THE APPEAL IS DISMISSED FOR DEFAULT. 9.9.2009. Sd/-THOMAS P.JOSEPH, JUDGE. ORDER ON CMP NO.1591/1995 IN SA NO.637/1995 DISMISSED 9.9.2009. Sd/-THOMAS P.JOSEPH, JUDGE. //TRUE COPY// P.A. TO JUDGE. P.BHAVADASAN, J. ----------------------------------------------- SA No.637 of 1995 ----------------------------------------------- Dated this the 21st day of January 2011 Judgment Aggrieved by the concurrent findings against him, the defendant in OS No.299/86 before the Munsiff's Court, Kanjirappally, has come up in appeal before this court. The parties and facts are hereinafter referred, to as they are available before the trial court. 2. The suit was one for declaration of title and eviction. The plaintiff claims to have obtained 675 square links of property as per Ext.A2 document. The defendant possesses land on the southern side of the plaint schedule property. Alleging that the defendant trespassed into the plaint schedule property and extended a portion of his building, the suit was laid seeking appropriate reliefs. 3. The defendant resisted the suit pointing out that the property over which the building stands is acquired by him as per Ext.B1 dated 23.09.1971. He also pointed SA 637/1995 2 out that he has not trespassed into any portion of property owned and possessed by the plaintiff and the allegation in the plaint is incorrect. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendant examined DW1 and had Ext.B1 marked. Exts.C1 to C4 are the commissioner's reports and plans. 5. The trial court on an evaluation of the evidence on record, found that the commissioner has identified the property with the aid of the Taluk Surveyor and it has been found that the plaintiff's property has been encroached upon by the defendant. 6. It is significant to notice that even though the defendant traces his title to Ext.B1, no attempt was made to get his property identified by the commissioner. 7. The property assigned to the plaintiff as per Ext.A2 has a total of 675 links. Ext.C3 clearly identifies the SA 637/1995 3 plaint schedule property. It is true that there is a slight mistake contained in Ext.C3. But, that has no consequence. The plaint schedule property was properly identified by the commissioner. It is clear from the commissioner's report and sketch that a portion of the structure put up by the defendant protruded into the property owned by the plaintiff. Even though the defendant objected to the commissioner's report, both the courts below found that there was nothing to show that the commissioner has erred in any manner in preparing the report and plan. The lower appellate court has considered the evidence in considerable detail and found that the defendant has trespassed into the plaintiff's property. There is nothing to show that the courts below have erred in reaching the conclusion that the defendant has trespassed into the plaint schedule property. The courts below were perfectly justified in granting a decree in favour of the plaintiff. No substantial questions of law arise for consideration in this second appeal. The second appeal is SA 637/1995 4 devoid of any merits and it is accordingly dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 637/1995 5