IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 SA.No. 202 of 1999(G) ------------------------------- AS.130/1995 of I ADDL.SUB COURT, ERNAKULAM OS.649/1990 of PRL. MUNSIFF COURT, ERNAKULAM .................... APPELLANTS/APPELLANTS/DEFENDANTS: --------------------------------------------------------------- 1. SAINABA, W/O.MOHAMMED, PALACKAL HOUSE, NJALAKAM KARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK. 2. P.A. MOHAMMED, S/O.ABDUL KHADER, -DO- -DO-. BY ADV. SRI.M.P.KRISHNAN NAIR, SRI.V.B.NARAYANAN. RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------------------------------ C.I. JOSEPH THARAKAN, S/O.INASU THARAKAN, CHIRAMEL HOUSE, PTHENPALLI, VARAPUZHA VILLAGE, PARAVUR TALUK. BY ADV. SRI.JOSEPH J.THAYAMKERIL. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs SA.No. 202 of 1999(G) ORDER ON C.M.P. NO.605/1999 IN S.A. NO.202/1999 DISMISSED 28/02/2011. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 202 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of February, 2011. JUDGMENT The disappointed defendants in O.S. 649 of 1990 are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Out of 20.500 cents of land obtained by the first plaintiff as per Ext.A1 document, he sold 6.793 cents to the first defendant as per Ext.A3 dated 5.12.1984. The property so sold to the first defendant is on the western side of the first plaintiff's property. On the allegation that certain portions of the structure put up by the defendants encroached into a portion of the property of the plaintiffs, the suit was laid. 3. The defendants resisted the suit. They pointed out that they had not encroached into any portion of the property of the plaintiff and the construction is well within their compound wall. The claim of the plaintiff over the S.A.202/1999. 2 thodu was disputed. It was pointed out that when the basement was put up, there was no objection from the side of the plaintiff and he stood by and watched the construction being put up. Thereafter he cannot be heard to say that the defendants had encroached into a portion of his property. There are various other allegations, which are not very relevant for the present purpose. 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 4 and documents marked as Exts.A1 to A10 from the side of the plaintiff. The defendants examined D.W.1 and had Exts.B1 to B14 marked. Exts.C1, C1(a) and C2 are the commission reports and plan. The trial court on an evaluation of the evidence in the case came to the conclusion that the sunshade, parapet, varendah and the eves project into the plaint schedule property on the east of the building of the defendants encroached into the property of the plaintiff as could be seen from Exts.C1 and C2 report and therefore granted a decree for mandatory injunction S.A.202/1999. 3 directing the defendants to remove those objectionable constructions. 5. The defendants carried the matter in appeal as A.S.130 of 1995. The lower appellate court after re-evaluation of the evidence found the judgment and decree of the trial court to be unassailable and confirmed the judgment and decree of the trial court and dismissed the appeal. It appears that a cross-objection was filed by the plaintiff, which was also dismissed. 6. Notice is seen issued on the following questions of law: “1. When the vendor has not raised any objection to the construction of a multi storied building by the vendee in the portion of the land sold by the vendor, is he not estopped from raising objection long after completion of the construction. 2. When the boundary of the portion of land sold is mentioned as the thodu, is not the vendee entitled to one half of that thodu on the side of the property sold. S.A.202/1999. 4 3. Is not the vendee entitled to the benefit of S.51 of the T.P.Act when he has construction building in the property sold to him, without any objection being raised by vendor, and when the vendee has constructed the building bonafide, believing that he is entitled to the entire area lying within the thodu boundary mentioned in his sale deed.” 7. Learned counsel appearing for the appellants pointed out that the plaintiff had assigned the property and he had no manner of right over the suit property, which situates on the western side of his property and over which the objectionable construction protruded into. Therefore, even if he gets a decree in his favour, he may not be able to execute the same. It is also pointed out that the area encroached into is also mentioned in the schedule of properties. 8. Both the above contentions have no merits. The defendants purchased the property from the plaintiffs as per Ext.A3 dated 5.12.1984 and both the courts below have noticed the separating boundaries between the two S.A.202/1999. 5 properties. The trial court as well the lower appellate court has noticed the eastern boundary of the defendants' property, which he had obtained from the plaintiffs as per Ext.A3 as “എനറ വകയ യ ള കര ങല ച റയ  ത ട  ബ ക സലവ  . ” In the light of this categoric recital regarding the boundary of the property of the defendants, the thodu and chira lie outside the property possessed by the defendants. The commission reports and plan clearly show that there is encroachment as found by the courts below. 9. Even assuming that the first plaintiff has assigned the property, that does not deprive him of the right to agitate the issue before this court. That is a pendente lite transfer. Counsel for the respondent, ie., the plaintiff in the suit seriously disputed the contention of the appellants. Suffice it to say, both the courts below have found that the claim of the defendants as untrue and that there is encroachment into the property owned and possessed by the plaintiff and directed to remove the encroachments. The above findings are essentially findings of fact based on S.A.202/1999. 6 an evaluation of the evidence on record. There is nothing to show that the findings are either perverse or unwarranted by the evidence on record. No grounds are made out to interfere with the impugned judgment and decree. No question of law, much less any substantial question of law arises for consideration in this second appeal. This Second Appeal is without merits and it is dismissed. P. BHAVADASAN, JUDGE sb.