IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 SA.No. 135 of 1998(G) ------------------------------- AS.379/1996 of SUB COURT, NEDUMANGAD OS.544/1989 of ADDL.MUNSIFF COURT, NEDUMANGAD .................... APPELLANT/ (APPELLANT/PLAINTIFF): --------------------------------------------------------- MADHAVI AMMA PADMAJA MONY, PADMAJA VILASOM, CHARUPARA, PARACHAL MURI, KULATHUMMAL VILLAGE. BY ADV. SRI.G.S.REGHUNATH, SRI.MOHAN JACOB GEORGE. RESPONDENTS-(RESPONDENTS/DEFENDANTS): ------------------------------------------------------------------------- 1. LUKOSE ABRAHAM, KUZHIVILA VEEDU, PARACHAL MURI, KULATHUMMAL VILLAGE. 2. LUKOSE BABU OF DO. DO. 3. RACHEAL RACINA OF DO. DO. BY ADV. SRI.B.MOHANLAL. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON 22/07/2010 DELIVERED THE FOLLOWING: rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 135 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of July, 2010. JUDGMENT The plaintiff in O.S.544 of 1989, who had his suit dismissed and which was confirmed in appeal is the appellant before this court. 2. The suit was one for injunction. The plaintiff claims to be the owner of 36 cents out of 37 cents comprised in Sy. No.1166/2 and 1166/1 with a building therein. he claimed to have obtained it under Exts.A1 and A2. The plaintiff claims that she had given approximately one cent of land on the eastern extremity of the plaint schedule in north-south direction for a way and the remaining property is in her possession. She wanted to put up a boundary wall along the western boundary of the plaint schedule property leaving the pathway portion. At that time the defendant obstructed and that necessitated the suit. S.A.135/1998. 2 3. The defendants resisted the suit. According to them, the plaint description is wrong and this is a dubious method adopted by the plaintiff to usurp their property. Almost all the allegations in the plaint were controverted and finally it was contended that the plaintiff is trying to grab the property belonging to the defendants. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 to 3 and the documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendants had D.Ws.1 to 3 examined and Exts.B1 to B3 marked. Exts.C1 and C1(a) are the commission report and plan. Exts.X1 and X2 are third party exhibits. 5. The trial court found that the commission report shows that the plaintiff owns 36 cents in Sy. No.1166/2, a case which the plaintiff does not have. According to the trial court, the plaintiff's case was that she was holding 30 cents in Sy. No.1166/2 and 7 cents in Sy. No.1166/1. Since the commissioner has not noticed any S.A.135/1998. 3 property in Sy. No.1166/1, it was found that the property has not been properly located and accordingly the suit was dismissed. 6. In the appeal filed by the plaintiff, the appellate court adopted the same reasoning as that of the trial court. Hence the Second Appeal. 7. The following questions of law have been raised in the second appeal: “a) When the plaintiff has proved her title and possession over the plaint schedule property on the strength of Exts.A1 to A3 and Exts.C1 and C1(a) and when the defendants clearly admits that they have no right or possession over plaint schedule survey number, can the court dismiss the suit which is only for injunction? b) Can the curt dismiss the suit on the ground that the commissioner has not correctly located the plaint schedule property as described in the plaint schedule? c) When the plaintiff claims right over Sy.No.1166 and when the defendants claim right over another Sy.No.1167 lying adjacent to 1166, is not the court bound to accept the boundary line S.A.135/1998. 4 separating the two sy. nos as the boundary line between defendants' property and plaintiff's property? d) Is not the plaintiff entitled to a decree on the basis of her possession over the plaint schedule property?” 8. Learned counsel appearing for the appellant pointed out that both the courts below have misdirected themselves both on facts and in law. It is true that the commissioner has not properly located the properties. But that has little significance in the nature of the case put forward by the plaintiff. Learned counsel admitted that going by the plaint, the claim of the plaintiff is that the plaintiff had 30 cents in Sy. No.1166/2 and 7 cents in Sy. No.1166/1. Learned counsel also conceded that unfortunately the Commissioner did not locate the 7 cents claimed by the plaintiff in Sy. No.1166/1. Learned counsel pointed out that the major portion of the property is comprised in Sy. No.1166/2 and the property in Sy.No.1166/1 was in the possession of the members of the plaintiff's family. That being the position, all the properties S.A.135/1998. 5 were lying contiguously and there is no demarcating boundary between the properties of the members of the plaintiff's family. Therefore, the commissioner measured 37 cents in Sy. No.1166/2 only and located 36 cents as claimed by the plaintiff. Learned counsel also pointed out that it has nothing to do with the reliefs sought for in the plaint. The relief sought for was for putting up of a boundary wall on the western side of the plaint schedule property. The commission sketch would show that there is a way on the western side beyond the western boundary of the plaintiff's property. It is also contended that the defendants have no case that they have any property in Sy. No.1166/2 or 1166/1. It is admitted that their property is comprised in Sy. No.1167. 9. One may now have a look at the plan prepared by the commissioner. The commissioner has located the survey boundary between Sy. No.1166/2 and 1167 as AB line. The Commissioner has also located the pathway that lies immediately to the east of AB line and as shown in his S.A.135/1998. 6 plan. Further east of that pathway, the western boundary of the plaintiff is shown as CD line. It is true that the report does not show the property claimed by the plaintiff in Sy.No.1166/1. But as rightly pointed out by the learned counsel for the appellant, that is not of much significance or consequence at all. One has to notice that the claim in the plaint is for injunction restraining the defendants from obstructing the putting up of a boundary wall along the CD line as shown in the report, which is the western boundary of the plaintiff's property. It is interesting to note that there is already a basement. So, only when further construction was attempted, obstruction was made. The commissioner has located the property claimed by the defendants on the western side of AB line. None of the parties has a case that any portion of the property in Sy.No.1167 extends beyond AB line on the east and likewise the property in Sy.Nos. 1166/1 and 1166/2 extends beyond AB line on the west. Of course at the time of evidence, the defendants had come forward with a case that they have property on the eastern S.A.135/1998. 7 side of AB line. 10. The above claim of the defendants cannot be accepted in the light of Ext.A5 survey plan produced by the plaintiff. The plaintiff has also caused production of Exts.X1 and X2 re-survey plans relating to Sy. Nos. 1166 and 1167. A comparison of the commission report along with these plans shows that there is no error in the commission report and plan. 11. Merely because the Commissioner had committed a harmless error by not locating the 7 cents in Sy. No.1166/1 that need not result in dismissal of the suit especially when there is nothing to show that the defendants have any property in Sy. Nos.1166/1 or 1166/2. Merely because, the Commissioner has chosen to locate 36 cents in Sy. No.1166/2, though the plaint schedule shows otherwise, cannot work detriment to the plaintiff. One may recall that the commission report also mentions that there is also a basement along CD line. S.A.135/1998. 8 12. There is no case for the defendants that by putting up boundary wall on the western boundary, the plaintiff is trying to usurp a portion of the way that lies further west. As already noticed, the survey boundary of Sy.No. 1167 on the east and Sy. Nos.1166/1 and 1166/2 on the west is AB line. The compound wall is sought to be put up on the eastern side of AB line. Now the defendants are obstructing the putting up of the said wall. In the result, this appeal is allowed, the judgment and decree of the courts below are set aside and the defendants are restrained by a permanent prohibitory injunction from obstructing the plaintiff from putting up the boundary wall along the CD line shown in Ext.C1(a) plan. Ext.C1(a) plan shall form part of the decree. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.