IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 RSA.No. 427 of 2008 --------------------------------- AS.326/2005 of D.C & SESSIONS COURT,TRIVANDRUM OS.811/2002 of II ADDL.M.C.,TRIVANDRUM .................... APPELLANT/APPELLANT/PLAINTIFF: K.M.KUTTAN, S/O. MILAN, AGED 67, RESIDING AT T.C. 40/2018, JPN -69, THYCAUD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.BIJU M.JOHN RESPONDENT/RESPONDENT/DEFENDANT: N.KUTTAN PILLAI, S/O. NARAYANAN PILLAI AGED ABOUT 80 YEARS, RESIDING AT LAL BHAVAN, T.C. 16/1488, JPN-59, THYCAUD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.SAJITH KUMAR V. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No. 427 of 2008 --------------------------- JUDGMENT The plaintiff in O.S.No.811/02 on the file of the Munsiff's Court, Thiruvananthapuram is the appellant in this appeal. He has preferred the first appeal before the District Court, being not satisfied with decreeing of his suit partly by the trial court. The appellate court dismissed the appeal and hence this Regular Second Appeal. 2. The plaintiff filed O.S.No.811/02 aforesaid for a mandatory injunction directing the defendant to demolish B schedule unauthorised construction made by him in violation of the Kerala Municipal Building Rules and trespassing into the southern boundary line of A schedule property and allowing him to construct the southern compound wall in tune with the survey stones and recover the expenses thereof from the defendant and for a permanent prohibitory injunction restraining the defendant from trespassing into A schedule property or making RSA 427/08 2 any construction and from disturbing the possession and enjoyment of the plaintiff over A schedule property and also to recover the cost of construction of the compound wall from the defendant. 3. The allegations, inter alia, made by the plaintiff in the plaint are that he is the owner in possession and enjoyment of five cents of land and the building comprised in Sy.No.744/1 of Thycaud Village as per Exhibit A1 sale deed in his favour, which is described as A schedule to the plaint; that A schedule property is bounded by Alsa Flat compound on the eastern side, property of Prabhakaran Nair and Narayanan Nair on the west, property of Krishnankutty Pillai on its northern side and the defendant's property on its south; that the defendant is residing in the said property; that the plaint schedule property and the property of the defendant were originally part and parcel of 79 cents of property comprised in Sy.No. 744 of Thycaud Village; that at the time of RSA 427/08 3 purchase of plaint A schedule property by the plaintiff, that had been separated by a compound wall on the southern side from the property of the defendant; that he did not effect any construction in the property till 1992; that taking advantage of the situation and in his absence, the defendant demolished the southern boundary wall and subsequently, on 10.12.2000, constructed two rooms on the boundary line encroaching into plaint A schedule property from the south eastern end to west to an extent of thirteen metres; that as a result of the unauthorised construction, the northern wall of the newly constructed rooms of the defendant forms part of the southern boundary of the scheduled property to the extent of thirteen metres; that there were survey stones on the south eastern and south western corners of the southern boundary of plaint A schedule property; that no action was taken by the Corporation as regards the unauthorised construction made by the defendant, despite complaint given in that behalf; that while RSA 427/08 4 so, on 10.1.2001, when he and his family members were absent, the defendant trespassed into the scheduled property and constructed the remaining portion of the southern compound wall from east to west to an extent of about eleven metres, further encroaching one foot into the scheduled property in continuation of the earlier unauthorised construction and he was trying to build up the remaining portion up to six metres for a height of five feet and the rest of it to a height of two feet on the foundation, ignoring the survey stones on the south eastern and south western ends; that he could not complete the work due to the timely intervention of the plaintiff and members of the Residents' Association; that plaint B schedule is the said unauthorised construction; that though mediators requested the defendant to demolish the said unauthorised construction, he was not amenable for the same; that despite complaints, police also did not take any action; that on 13.6.2002, the defendant tried to trespass into plaint A schedule RSA 427/08 5 property and to complete the construction of the remaining portion of the southern compound wall on the western side and also tried to put up a new boundary from the protruding portion in order to cover up the unauthorised construction made by the defendant on the southern boundary wall commencing from south eastern corner to an extent of thirteen metres; that due to his intervention, that attempt was thwarted and that the plaintiff has no other remedy other than to file suit and hence the suit. 4. The respondent/defendant filed a written statement resisting the suit. According to him, the suit is filed suppressing the facts with a view to harass him; that he is the absolute owner in possession and enjoyment of ten cents of property in Sy.No.744/1 of Thycaud Village as per Sale Deed No.3134/71 of SRO, Chalai; that he is in uninterrupted possession and enjoyment of the same from 1971 onwards; that he constructed a residential building and is residing there with his family; that the said building is a concrete RSA 427/08 6 structure with one room on the eastern side with lite roof; that the entire building with the lite roof on the eastern side was constructed in the year 1971; that it was assessed by the Trivandrum Corporation; that the northern wall of the western two rooms is within his property itself; that the plaintiff purchased an extent of five cents of property, lying on the northern side of his property, during 1978; that the said property is also comprised in the same survey number and was lying in the same level as that of his property; that there was a compound wall on the east west direction on the southern side of the plaintiff's property at the time of his purchase; that, that compound wall was partly constructed with granite foundation and bricks superstructure and partly as mud wall; that during 1992, the plaintiff dumped earth in his property and raised its level up to about five feet; that consequently the compound wall fell down to a length of about eleven metres; that though the plaintiff agreed to reconstruct the RSA 427/08 7 compound wall at his expense; quiet unexpectedly, on 10.12.2000, in his absence, the plaintiff constructed a compound wall of granite foundation and bricks superstructure up to a length of 4.75 metres, encroaching about one feet towards his property; that he filed a complaint before the police and with the intervention of the Circle Inspector of Police, the plaintiff removed the bricks superstructure, but, he did not care to re- construct the remaining portion of the compound wall; that therefore, a petition was filed before the Revenue Divisional Officer on 26.3.2001; that the plaintiff filed a complaint to the District Collector, Thiruvananthapuram against him alleging offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, on the basis of which, a crime was registered as Crime No.143/01 at the Museum Police Station; that at the intervention of the people of the locality and the Sub Inspector of Police, Museum Police Station, a compromise was arrived at and it was reduced to RSA 427/08 8 writing; that both the plaintiff and the defendant signed therein and that was attested by the Secretary and the President of the Residents' Association; that as per the said agreement, the parties agreed to retain the compound wall to a length of 4.75 metres on the western side and to plaster the same; that the plaintiff agreed to cut and remove the jack tree standing near the compound wall and construct a granite foundation in his property to support the compound wall; that the plaintiff agreed to plaster the wall extending towards the eastern direction and to concrete the lower portion of the wall to a width of six inches, so as to support the two rooms constructed long back by him; that on the basis of the agreement, the only action taken by the plaintiff was that he cut and removed the jack tree and he did not comply with any other conditions; that the plaintiff filed the present suit suppressing the facts; that it is false to say that he encroached into the plaintiff's property and constructed the compound RSA 427/08 9 wall; that there was no survey stones as claimed by the plaintiff; that he wanted to measure out the property and for that purpose he had filed an application before the Revenue Divisional Officer and that when notice was issued, plaintiff obtained a stay and when the stay was vacated, the present suit was filed by the plaintiff. On the above allegations, the defendant prayed for dismissal of the suit with costs. 5. The trial court raised necessary issues on the basis of the above pleadings and after trial and considering the evidence adduced in the case, which consisted of oral evidence of PWs 1 and 2 and documentary evidence Exhibits A1, A2, B1 and C1 to C3(a), decreed the suit in part, allowing the appellant/plaintiff to construct the southern boundary wall of his property along the K-F line and to recover half of the cost of the construction from the defendant. The prayer for mandatory injunction as well as for permanent prohibitory injunction was refused. Aggrieved by the refusal RSA 427/08 10 to grant all the reliefs prayed for, the plaintiff filed A.S.No.326/05, which, as already stated, was dismissed by the first appellate court. 6. It is vehemently contended before me by the learned counsel for the appellant that his request to withdraw the suit with leave to file a fresh suit made orally was vehemently opposed by the counsel for the respondent; that the property should have been properly measured out and that was not done in the instant case, despite the objection filed to the Commissioner's report; that the courts below relied on Exhibit B1 agreement entered into at the intervention of the police, which should not have been acted upon by the court in a civil dispute and that the question of violation of the Building Rules had not been considered by the courts below in the proper perspective. 7. The case of the appellant/plaintiff is that the respondent/defendant encroached into portions of his property and constructed two rooms and the said construction is in violation of the Building RSA 427/08 11 Rules, as the construction was along the boundary. To ascertain as to whether the construction was along the boundary, violating the Building Rules, naturally, the properties of both the plaintiff and the defendant should have been measured. It is true that a commission was taken out and the Commissioner, with the assistance of a retired Surveyor, has submitted Exhibit C3(a) plan along with his report. The commission report showed the boundary lines separating the property of the plaintiff from the property of the defendant as K-F line in Exhibit C3(a) plan. Though an objection was filed to the commissioner's report by the plaintiff, as observed by the first appellate court, the plaintiff, as PW1, at the time of tendering evidence, has categorically stated that he has no intention to take out a commission and measure out the property with the help of a Surveyor. From the commissioner's report, it was evident that the property in the possession of the plaintiff is having an extent of five cents and RSA 427/08 12 sixty square links as against his title for five cents only and the property in the possession of the defendant is having an area of ten cents and 410 square links as against his title for ten cents only. Probably, that was the reason why the plaintiff did not want to have the property measured afresh. As observed by the lower appellate court, PW1 was not prepared to measure the property with the help of a Surveyor on the basis of the title document either. Consequently, therefore, the contention that the plaintiff has to be afforded an opportunity to have the property measured and the boundary fixed in a fresh suit, withdrawing the present suit, is also devoid of merit, as PW1 did not make any attempt to have the property measured through a Surveyor to establish that the measurements in Exhibit C3(a) plan is not correct. 8. The evidence of PW2 showed that the parties are in possession of excess land than the land covered by their title deeds and that therefore, it RSA 427/08 13 is not possible to say whether there is any encroachment made by the parties and that it is not possible to locate the disputed B schedule property on that basis. No evidence was also adduced by the plaintiff to examine any member of the Residents' Association to show that the defendant has trespassed and constructed any portion of his building at the place where the boundary wall existed, demolishing the then existing boundary wall. The boundary line was fixed by the Commissioner on the basis of the existing boundary and possession of the parties, in the absence of proof of any encroachment made by the defendant. Appellant had not raised any objection before any authority complaining of Exhibit B1 compromise having been caused to be made against his will by the intervention of police and as rightly observed by the courts below, there was no reason to ignore Exhibit B1 for that reason. However, even ignoring Exhibit B1, the plaintiff is seen to have found miserably failed in establishing his case. It is RSA 427/08 14 also worth mentioning in this context that in order to resolve the boundary dispute finally, the defendant had filed a petition before the Revenue Divisional Officer, but that attempt was also defeated by the plaintiff, obtaining stay, so that an appropriate measurement through the revenue authorities was also disabled to be made by the act of the plaintiff. In the circumstances, the case of trespass and unauthorised construction of the defendant's building in the portion of the boundary wall that existed was rightly being found against by the courts below. The appellant/plaintiff has miserably failed also to establish on evidence that there was any violation of the Building Rules in the matter of construction of building by the respondent/defendant. There is no merit, therefore, in this Regular Second Appeal and the substantial questions of law attempted to be formulated in the appeal memorandum do not actually arise for consideration in this regular Second Appeal. RSA 427/08 15 This Regular Second Appeal is devoid of merit and is dismissed in limine, refusing admission. 13th June, 2008 (K.P.Balachandran, Judge) tkv