IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 SA.No. 798 of 1997() -------------------- AS.224/1992 of DISTRICT COURT,KOZHIKODE OS.516/1986 of ADDL.MUNSIFF COURT, KOZHIKODE-I .................... APPELLANT/APPELLANT/DEFENDANT: ---------------------------------------- S.ANDI, AGED 56 YEARS, S/O.S.CHANDU, KODUVALLI AMSOM, KODUVAMOOZHI DESOM, KOZHIKODE DISTRICT. BY ADV. MR.A.SUDHI VASUDEVAN MS.BINDU MOHANDAS RESPONDENT/RESPONDENT/PLAINTIFF: -------------------------------------------- S.CHANDRAN, AGED 39 YEARS, S/O.T.UNNERI, KODUVALLI AMSOM, KODUVAMOOZHI DESOM, KOZHIKODE DISTRICT. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 798 of 1997 ORDER ON C.M.P.NO.2054/1997 IN S.A.NO.798/1997 DISMISED. 1.6.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE HARUN-UL-RASHID, J. ------------------------ S.A.No.798 Of 1997 ---------------------- Dated this the 1st day of June, 2010. J U D G M E N T The defendant in O.S.No.516 of 1986 on the file of the Munsiff Court, Kozhikode is the appellant. The suit was filed for permanent prohibitory injunction. The trial court decreed the suit and the defendant and his men are restrained by a permanent prohibitory injunction from tampering or demolishing the southern boundary of the plaint schedule property and from causing any waste or damager to the kuzhikoors therein and from taking any usufructs from the kuzhikoors situated in the plaint schedule property. The appellant/defendant preferred A.S.No.224 of 1992 before the District Court, Kozhikode. The appellate court confirmed the decree and judgment passed by the trial court. Parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff and defendant are adjacent property owners. Parties are claiming title over the respective property on the basis of title deeds. The plaintiff is claiming title to the property as per the gift deed dated 24.2.1975 marked as Ext.A6. S.A.No.798 Of 1997 ::2:: It is the plaintiff's case that there is a boundary wall having a width of one feet constructed by the plaintiff separating the plaint schedule property from the defendant's property on the southern side. The defendant's case is that the southern wall was constructed by the plaintiff by encroaching upon a portion of the property in his possession. The defendant denied the plaint averments. It is the common case that the property originally belonging to Chandu in jenm and after his death his legal heirs partitioned the property left behind him as per the registered partition deed dated 13.2.1958, marked as Ext.A2. The defendant, who is one of the children of Chandu, obtained item No.4 and according to him item No.2 was allotted to the share of Cherunni, brother of the defendant. By subsequent assignment, vide Ext.A6 gift deed dated 24.2.1975, the plaintiff came into possession of the property. According to the defendant the plaintiff is not entitled to possess and enjoy the property other than item No.2 of the partition deed. 3. The plaintiff is claiming title and possession on the basis of Ext.A6 gift deed. The property which is in the possession of the plaintiff admittedly, is item No.2 of Ext.A2 which was S.A.No.798 Of 1997 ::3:: allotted to the share of Cherunni. The north-south measurements of the western most section is shown as 12 koles in Ext.A2. In Ext.A3 also the north-south measurement of the western most section is shown as 12 koles. In Ext.A1 also the measurement is shown as 12 koles. In Ext.A6 gift deed, the measurements of the boundaries are not separately shown. The measurement is shown as 31 x 20 metres. A commissioner was deputed to measure and identify the plaint schedule property. Exts.C1and C2 are the report and plan submitted by the commissioner. The disputed property is shown in Ext.C2. Portion of demolished wall is also shown. The north-south of the western section is also shown as 18 feet. On conversion it will be 12-6 feet koles. The second plan submitted by the commissioner is marked as Ext.C4. The first report and plan submitted by the commissioner was remitted. In Ext.C4 also, the commissioner has shown the disputed property as 12-6 feet koles. In Ext.C4 also the disputed property was clearly demarcated by the commissioner. The southern boundary wall was also shown in the plan. The defendant also admitted the existence of a wall on the southern boundary of the plaintiff's property. The plaint S.A.No.798 Of 1997 ::4:: averments shows that the plaint schedule property extends only up to southern boundary wall. The trial court observed that it cannot be believed that the wall could have been built up leaving a portion on the southern side when the southern boundary wall admittedly is in the possession of the defendant and when a boundary wall is erected, it will be erected on the boundary and by not leaving a portion beyond the boundary wall. The trial court on evidence held that the plaintiff is entitled to possess the property which extend up to the southern boundary wall. Before the trial court the learned counsel appearing for the defendant fairly conceded that his client is not entitled to collect usufructs and further that his party will be satisfied if an observation is made in the judgment that the possession of the defendant extends up to the southern boundary wall and the plaintiff is not entitled to claim any portion of the property beyond the boundary wall. In the circumstances, the trial court as well as the lower appellate court on facts found that the plaintiff is in possession of the plaint schedule property which extends up to the southern boundary wall and the trial court passed a decree granting injunction restraining the appellant/defendant and his men from S.A.No.798 Of 1997 ::5:: tampering or demolishing southern boundary of the plaint schedule property and from causing any waste or damage to the kuzhikoors therein and from taking any usufructs from the kuzhikoors situated in the plaint schedule property. The trial court as well as the appellate court found that the plaintiff is entitled to a decree of permanent prohibitory injunction. The suit was filed for permanent perpetual injunction. The question of title was not gone into by the courts below. The finding regarding the possession is based on the evidence on record. No grounds are made out by the appellant to interfere with the findings recorded by the trial court which was confirmed by the appellate court. No question of law much less any substantial question of law arises for consideration in the appeal. In the result, the appeal fails and accordingly, dismissed. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-