IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 RSA.No.542 of 2008 (F) --------------------------- AS.42/2006 of SUB COURT, KOYILANDY OS.109/2003 of MUNSIFF COURT, QUILANDY .................... APPELLANT/APPELLANT/DEFENDENT: --------------------------------------------- KOYILANDY SERVICE CO-OPERATIVE BANK LTD., REP. BY ITS SECRETARY, PANTHALAYANI AMSOM, DESOM, KOYILANDY TALUK BY ADV. SRI.S.V. BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS/RESPONDENTS/PLAINTIFFS: ---------------------------------------------------- 1. KULANGARA VEETTIL KANNAN, S/O.KANARAN, SWASTHAM, PANTHALAYANI AMSOM, DESOM, KOYILANDY TALUK 2. V.M.BALAN, S/O.KANARAN, BUSINESS, RESIDING AT V.M.VIHAR MOODADI AMSOM, DESOM, KOYILANDY TALUK THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.542 of 2008 ------------------------------------------------ Dated this the 22nd day of July, 2008 JUDGMENT The Koyilandy Service Co-operative Bank/ the defendant in O.S.109/03 on the file of the Munsiff's Court, Koyilandy is the appellant. They challenge in this appeal the concurrent decree passed against them by the courts below. 2. The respondents/plaintiffs filed suit for injunction restraining the appellant/Co- operative Bank by a decree of prohibitory injunction from digging out the property belonging to them and lying on the western side of the plaint schedule property so as to deprive lateral support to their property and for mandatory injunction directing them to restore the compound wall part of which has slided down consequent on digging out of the property of the defendants without retaining R. S. A. No.542 of 2008 -2- lateral support to the common boundary wall. 3. The allegation of the respondents/ plaintiffs in the suit inter alia were that the scheduled property originally belonged to Matheyi/the grandmother of the plaintiffs who got it alloted her share by a registered partition deed of the year 1912 registered as deed No.3928/1912 of Sub Registry Office, Koyilandy; that on her death her legal heirs partitioned the property as per Ext.A8 partition deed and thereunder plaint 'B' schedule property was alloted to the plaintiffs, one Kunhikrishnan, Chandukutty and Narayanan; that the rights of Kunhikrishnan was released in favour of the first plaintiff and the right of Chandukutty was released in favour of the second plaintiff and they again entered into a deed of partition on 06/10/1980 under Ext.A9; that Narayanan assigned his right over item No.3 in favour of the second R. S. A. No.542 of 2008 -3- plaintiff and thus, the first plaintiff is in possession of item No.1 and the second plaintiff is in possession of item Nos.2 and 3 of the scheduled property; that the western boundary of the scheduled property is a laterite bund which is more than 100 years old; that the property on the west of the scheduled property originally belonged to one Advocate V.V.Rama Iyer and a school was functioning in the said property which was later assigned in favour of the defendant/ Society and thereafter, the school ceased to function; that the society was conducting banking business in a part of the premises and in the remaining premises Block Development Officer was in occupation and a library also was functioning; that recently, the defendant got vacated the premises in the occupation of the society and also demolished the building in full; that the defendants started digging R. S. A. No.542 of 2008 -4- the compound to excavate soil with the intention of bringing the property on a level with the National High Way passing along its western boundary; that the plaintiffs objected to the said action of the defendant as their property was being supported laterally by the property immediately on the west and excavation of soil would amount to soil erosion from the western boundary of the plaintiffs; that the defendants informed the plaintiffs that they have intention to construct the building complex and for the purpose the excavation of soil was necessary; that on the complaint of the plaintiffs, the Koyilandy police caused excavation work to be stopped; that the Society consequently tried to raise a dispute on the boundary with the assistance of survey officials and plaintiffs were served with a notice from the Revenue Department for re-determination of the western R. S. A. No.542 of 2008 -5- boundary; that later, they were served with another notice dt.10/11/2000 informing that the boundary has been fixed; that apprehending foul play at the hands of the defendant, plaintiffs filed an appeal before the Superintendent of Survey and by order dt.03/08/02, the Superintendent of Survey has informed the plaintiffs that the boundary has been found correct without further, clarifying as to whether the boundary is different from that of the existing boundary; that the defendant continued with the digging operation in their property and consequently, the boundary wall between the two properties got partly collapsed; that therefore, the plaintiffs filed complaint before the Koyilandy Municipality and the Municipality vide notice dt.31/10/02 directed the defendant to stop work for averting danger to the compound wall and thereafter in a joint R. S. A. No.542 of 2008 -6- meeting held on 06/11/02 all parties agreed to preserve the boundary wall and the defendants also agreed to restore the partly collapsed boundary wall, but without taking any steps to restore the compound wall they are proceeding with construction of the building in violation of the Municipality Rules and plaintiffs apprehend that their boundary wall is likely to be tampered with under cover of construction; that defendants have no manner of right to interfere with the western boundary of the plaintiffs that was in existence for the last several years; that the western boundary of the defendant is a National Highway which has been widened as part of the periodical maintenance works and the attempt of the defendants is to claim more lands from the western boundary of the plaintiffs by removing the existing boundary walls. According to the plaintiffs, if at all R. S. A. No.542 of 2008 -7- there is any deviation in the original survey fields from the actual boundary the right of the defendants if any is lost by adverse possession and limitation by open and continuous possession of the plaintiffs and their predecessors-in-interest over the property on the east of the boundary wall. Plaintiffs apprehend that the defendants are attempting to demolish and remove the boundary wall so as to remove all traces of existence of boundary wall and the defendant is further trying to trespass into the property of the plaintiffs with the intention of getting more parking area for their building complex. On the above allegations the plaintiffs prayed for a decree of prohibitory injunction and mandatory injunction on the lines already stated. 4. The defendant filed written statement contending that the property of the defendant R. S. A. No.542 of 2008 -8- originally belonged to one Sankaran and others as per a lease deed dt.14/11/1923 that as per order in E.P.233/1942 that right was auctioned and Chalappuram Bank which purchased the property have taken delivery of the same and by change of hands the property came into the possession of Panthalayani P.C.C Society which has been subsequently converted into the defendant/Co-operative Bank; that the defendant has got purchase certificate from Land Tribunal; that the property is comprised in R.S.32/8 and is not a part of the properties covered by partition deed 3928/1912; that it is necessary to identify the property with the help of the Commissioner; that plaintiffs have no right over the property in resurvey 32/8; that the plaintiffs have no right beyond the boundary fixed by the Superintendent of Survey after effecting measurements in the presence of the R. S. A. No.542 of 2008 -9- plaintiffs as well; that it is incorrect to say that the wall is more than 100 years old and that the property of the defendant has been excavated so as to bring the property to the level of the National High Way; that in fact the wall of the building on the east was not demolished and it is still there and it cannot be treated as a compound wall; that the boundary shown by the Superintendent of Survey is much beyond the compound wall on the east of their property and that there is no cause of action to institute suit for the reliefs claimed. 5. They also filed an additional written statement consequent on amendment of plaint contending that there is no necessity to fix the western boundary of re-survey No.32/9; and that the compound wall shown is the wall of the school that was in the property of the defendant. R. S. A. No.542 of 2008 -10- 6. On the above pleadings the trial court raised necessary issues for trial and considering the evidence adduced at trial which consisted of oral evidence of PW.1 and DW1 and documentary evidence Exts.A1 to A9, B1 to B6 and C1 to C4 decreed the suit granting the reliefs prayed for by the plaintiffs. Appellant/defendant assailed the said judgment and decree filing A.S.42/06 before the first appellate court and the first appellate court dismissed the appeal concurring with the findings of the trial court and the decree passed by the trial court. Hence, this appeal by the aggrieved defendant. 7. It is vehemently contended before me by the learned counsel for the appellant that the plaintiffs should not have been given a decree of injunction both prohibitory and mandatory especially when they have instituted the suit simply as a suit for injunction and R. S. A. No.542 of 2008 -11- the defendant has got a case that the wall that is in existence is not the boundary wall but the eastern wall of the school that was in existence earlier and that therefore, the relief of injunction prayed for should have been rejected and the suit dismissed as plaintiffs can hope to get a decree only if a proper suit for demarcation of the boundary is filed. It is contended by the counsel for the appellant further that the alleged boundary wall is within the property of the defendant and that their property extends even beyond the alleged boundary wall and that in view of existence of such a contention, the plaintiffs should have been found dis-entitled to any relief in the suit for injunction. 8. It is the case of the plaintiffs that the laterite bund which separates the plaint schedule property from the property of the defendants situated on the west of the plaint R. S. A. No.542 of 2008 -12- schedule property is the boundary wall separating the property of the plaintiffs and the defendants; that the defendants are digging out the property so as to make it on a level with the western National High Way and in that process they have dug out soil to such a depth that part of the compound wall has slided into the property of the defendant for reason of deprivation of lateral support. 9. The existence of a laterite wall is established on the evidence in this case. The digging out of the soil from the western property belonging to the defendant so as to bring it on a level with the western National High Way is also not in dispute. It is also not disputed before me that part of the alleged compound wall has got slided consequent on the excavation that was conducted in the property of the defendant. The only contention of the defendant is that R. S. A. No.542 of 2008 -13- the laterite wall part of which got slided consequent on the excavation done in their property is the wall of a school building that was in existence in the western property and that is not the boundary wall separating the property of the defendant from the scheduled property belonging to the plaintiffs and Ext.C1 survey plan would go to show that the boundary line separating resurvey 32/9 from the property of the defendant comprised in resurvey 32/8 is even beyond east of the laterite wall and that the property of the defendant extends further to the east of the laterite wall which is alleged to be the boundary wall separating plaintiffs' property from the property of the defendant. 10. In support of the defendant's contention the only evidence is the oral testimony of DW1 who is stated to be the President of the defendant/Bank. Obviously, he R. S. A. No.542 of 2008 -14- cannot have any direct knowledge with the alleged boundary which is ancient. There is no convincing evidence to show that the alleged laterite bund is the eastern wall of the school building that was in existence in the property of the defendant. DW1 has gone to the extent of saying that he is unable to say as to whether the plan for construction of the building in the property of the defendant was submitted showing as their property also an extent of 7 ½ feet width portion beyond the existing laterite bund, but all the same, he states that the boundary so fixed by the resurvey authorities is 7 ½ feet to the east of the alleged boundary wall separating the defendant's property from the property of the plaintiffs. In other words, the case of the defendant is that an extent of 7 ½ feet width portion on the east of the alleged compound wall and extending from North to South will R. S. A. No.542 of 2008 -15- also come within the property of the defendant. 11. The question as to whether the defendant has got title over any portion of land which is now found to be in possession of the plaintiffs and which lies on the eastern side of the alleged compound wall is not a matter that arises for consideration in the suit for injunction. However, on the evidence it stands established that plaintiffs are in possession of the property on the east of the alleged laterite boundary wall and the defendant is in possession of the property on the west of the said laterite wall and that the said wall is in existence for a pretty long time and excavation of soil from the property of the defendant has caused sliding of a portion of the said laterite wall into the property of the defendant consequent on deprivation of lateral support. The defendant R. S. A. No.542 of 2008 -16- cannot by their unilateral act cause the alleged laterite compound wall to fall down and to encroach into the property in the possession of the plaintiffs. If at all the defendant has got any claim over the property to the east of the compound wall, it is for them to resort to appropriate legal proceedings. As matters stand the decree of the court below granting injunction restraining the appellant/defendant from trespassing into plaint 'A' schedule property or demolishing or destroying the compound wall and to restore that portion of the compound wall that has already slided consequent on excavation done in the property of the defendant cannot be faulted and deserves only to be upheld. There is no question of law and much less any substantial question of law arising for consideration in this R.S.A by this Court. R. S. A. No.542 of 2008 -17- 12. This R.S.A, in the circumstances, is dismissed in limine refusing admission and confirming the concurrent decree passed by the courts below. K.P.BALACHANDRAN, JUDGE kns/-