IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 RSA.No. 1197 of 2009() ---------------------- AS.1/2008 of PRINCIPAL SUB COURT,ALAPPUZHA OS.419/2005 of PRINCIPAL MUNSIFF COURT,ALAPPUZHA .................... APPELLANT/ APPELLANT/DEFENDANT: --------------------------------------- PUSHPAM THOMAS,W/O.THOMAS, AGED 52 YEARS,ERESSERIL HOUSE,MARARIKULAM NORTH.PO MARARIKULAM NORTH VILLAGE,ALAPPUZHA DISTRICT. BY ADV. SRI.ANOOP JOSEPH SRI. BIJU N T RESPONDENT/RESPONDENT/ PLAINTIFF: ------------------------------------- JOHN MATHEW,S/O.LATE M.J.MATHEW, AGED 59 YEARS,NEROTH HOUSE,FACTORY WARD, ALAPPUZHA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1197 of 2009 --------------------------------------- Dated this 17th day of November, 2009 JUDGMENT Against concurrent finding entered by the courts below that appellant has trespassed into the property of respondent and the consequent decree for mandatory injunction appellant has come up in second appeal. According to the respondent, item No.1 of the plaint schedule belonged to him as per Ext.A1, assignment deed No.769 of 2005. As per that document he has 1.85 ares in R.S.No.661/2. Appellant constructed a house in her property on the south of item No.1. There is a tarred public road on the north of item No.1 and for convenient negotiation of vehicles a wider space is left in the north- western corner of item No.1. Respondent has put up a gate on the western boundary of his property. His complaint is that appellant constructed a wall on the western side of item No.1 trespassing into his property. That wall is described as plaint schedule item No.2. Respondent wanted removal of that wall. Appellant contended that her property is situated on the south and west of item No.1 and that on the west of item No.1 it is public road. She claimed right over the public road. She denied that she encroached into the property of respondent. Respondent had his gate on the northern side which was closed and then a gate on the western side was put up. Respondent produced Exts.A1 and A2, his title deed and receipt for payment of R.S.A.No.1197 of 2009 2 revenue for the suit property. Appellant gave evidence as DW1 but did not produce any document. Advocate Commissioner and Surveyor who prepared Ext.C1 series are examined as CWs.1 and 2. Courts below found from Ext.C1 series that appellant has trespassed into the property of respondent and constructed compound wall. That was directed to be removed by decree for mandatory injunction. Learned counsel for appellant submits that respondent also has trespassed into the portion of property of the appellant as revealed by Ext.C1 series which is referred to by learned Munsiff in para 9 of the judgment. Learned Munsiff observed, this is not sufficient to deny relief to the respondent. Learned counsel submits that appellant has instituted a suit for mandatory injunction against the respondent. Learned counsel requested that this second appeal be kept pending until the other suit is disposed of or both cases may be permitted to be disposed of together. 2. I do not find any substantial question of law involved in the second appeal since evidence is only on one way, that the appellant has trespassed into the portion of the property belonging to the respondent. Appellant has not even proved her document of title in the case. Therefore, there is no reason to interfere with the finding of the courts below regarding trespass. If the appellant has instituted suit for mandatory injunction or other relief against the respondent in R.S.A.No.1197 of 2009 3 regard to the area allegedly trespassed upon by the respondent, that suit necessarily will have its own course. There is no reason why this appeal has to be kept pending. There is not merit in the second appeal. It is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/