IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 RSA.No. 79 of 2005(A) --------------------- OS.181/1988 of MUNSIFF-MAGISTRATE COURT,PONNANI AS.161/1995 of SUB COURT, TIRUR .................... APPELLANT IN A.S./PLAINTIFF IN OS: --------------------------------------------------- MELEPPAT BHARATHI @ THANKAMMU AMMA D/O.LAKSHMI AMMA, MALABAR WIRES & ALLIED PRODUCTS, ANAMANGAD AMSOM DESOM, PERINTHALMANNA TALUK. BY ADV. SRI.T.KRISHNAN UNNI (SR.) RESPONDENTS: RESPONDENTS IN A.S/DEFENDANTS IN O.S: ------------------------------------------------------------------------------------------------ 1. VATTAMKULAM PANCHAYATH, KULANGARA BHAGAVATHI TEMPLE, BHARANA SAMITHI PRESIDENT, THRIKKANDIYUR, GOPALA MENON, R/A. KAPPOOR AMSOM KOLLANNOOR DESOM, OTTAPPALAM TALUK. 2. VATTAMKULAM PANCHAYATH, KULANGARA BHAGAVATHY TEMPLE, BHARANA SAMITHI, SECRETARY, CHILLAKKATT, (MAREKKAT) BALAKRISHNA NAIR, R/A. KUTTIPPALA AMSOM SUKAPURAM DESOM, PONNANI TALUK. ( RESPONDENTS REP. FOR ON BEHALF OF THE KULANGARA BHAGAVATHY TEMPLE BHARANA SAMITHI. ADV. SRI.V.R.KESAVA KAIMAL FOR R1 & R2 SRI.N.M.MADHU FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. ------------------------------- R.S.A No: 79 OF 2005 ------------------------------- Dated this the 25th November, 2008. JUDGMENT The plaintiff in O.S. 181/1988 on the file of the Munsiff- Magistrate Court, Ponnani is the appellant in the second appeal. The said suit was one for recovery of possession of the plaint A schedule property having a measurement of 43 ¾ feet east-west and 7 feet, 1 ½ feet and 1 ¾ feet north-south. The said property was alleged to be a portion of the plaint B schedule property having a total extent of 11 cents. The plaintiff alleged that plaint B schedule property was allotted to her under Ext. X1 partition deed dated 27.7.1987. Ext. X1 was a tavazhy partition and the tavazhy got the property along with other items under the taravad partition in O.S.310/1946 of which Ext.B1 is the copy of the final decree dated 30.1.1948. The plaintiff contended that the plaint B schedule property extended up to the line R1-R2 shown in Ext.C4 plan. But the courts below were not inclined to accept the said contention. The plaint B schedule property was identified as plot DCLKOM in Ext. C4 plan. Even though the said identification was R.S.A.NO: 79 /2005 2 accepted by the courts below there is a marginal encroachment of the kalyanamandapam constructed by the defendants in the northern property belonging to them. The courts below erred in ignoring the fact that the northern boundary of the plaint B schedule property extends up to line OKL in Ext.C4 plan. The identification of the plaint B schedule property in plot DCLKOM in Ext.C4 plan is after taking into account the north-south measurement as 132 feet as against the north-south measurement of 124½ feet shown in Ext.B1 plan in the final decree in O.S.310/1946. The excess land found with the plaintiff was located on the southern side of the plot DCLKOM in which case the identification of the plaint B schedule property as plot DCLKOM in Ext.C4 plan should be taken as correct. But then the courts below were not justified in dismissing O.S.181/1988 without any relief overlooking the fact that the south-eastern corner of the Kalyanamandapam constructed by the defendants in the northern property has encroached into the plaint B schedule property though not to the extent of plaint A schedule R.S.A.NO: 79 /2005 3 property as shown in the plaint. But then, the plaintiff having acquiesced over the said construction cannot seek recovery of the encroached portion after demolishing the said construction. The plaintiff can claim in equity compensation for the marginal encroachment of the kalyanamandapam into the plaint B schedule property. I do not consider it necessary to remand the case again back to the trial court to ascertain the exact area of encroachment. I, therefore, fix a sum of Rs.10,000/- (Rupees ten thousand only) as the compensation payable to the plaintiff for the above encroachment. Accordingly, the suit O.S.181/1988 will stand disposed of awarding a sum of Rs.10,000/- as compensation to the plaintiff payable by the defendants for encroachment of the portion shown as KLX in Ext.C4 plan. The relief of recovery of possession and mandatory injunction is disallowed and instead the plaintiff is awarded compensation as aforesaid. In all other respects the judgment and decree passed by the courts below shall stand confirmed. The second appeal is disposed of as above. R.S.A.NO: 79 /2005 4 2. The defendants shall deposit the compensation amount before the trial court to be paid to the plaintiff within two months from today, failing which the plaintiff shall be entitled to recover the same by resorting to execution. V. RAMKUMAR JUDGE jj