IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 30TH OCTOBER 2008 / 8TH KARTHIKA 1930 RSA.No. 732 of 2008() --------------------- AS.139/2007 of ADDL. DISTRICT COURT, N.PARAVUR OS.438/2005 of MUNSIFF COURT, N. PARAVUR .................... APPPELLANT/APPELLANT/PLAINTIFF ----------------------------------------- BABU, S/O. RAHGAVAN, VALLATHERIL, VALIYAPALLAMTHURUTHU MURI, CHENDAMANGALAM P.O., PARUR VILLAGE, PARUR TALUK. BY ADV. SRI.BABU CHERUKARA RESPONDENTS/RESPONDENTS/DEFENDANTS. -------------------------------------------------- 1. OMANA, W/O. GOPI, THANDASSERI, RESIDING THAIPARAMBIL, VALIYAPALLAMTHURUTH MURI, CHENDAMANGALAM P.O., PARAVOOR VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT. 2. DILEESH, S/O. GOPI – DO- -DO 3. SABU, S/O. GOPI, -DO- - DO - 4. ANILKUMAR, S/O. GOPI -DO- - DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 732 of 2008 ========================== Dated this the 30th day of October, 2008. JUDGMENT The plaintiff in O.S. No. 438 of 2005 on the file of the Munsiff's Court, N. Paravur is the appellant in this Second Appeal. The said suit is one for a perpetual injunction in respect of the plaint B schedule passage and for a mandatory injunction to remove the plaint C schedule compound wall allegedly constructed by encroaching into the plaint B schedule passage. The plaint A schedule property is 10 cents of Kudikidappu belonging to the plaintiff. The plaintiff contended that the plaint B schedule passage had a width of 7 links and the defendant who has property to south of the plaint B schedule pathway, had constructed a compound wall after encroaching into the plaint B schedule pathway thereby reducing the width of the pathway to 5 links. 2. Even though the plaintiff took out a commission, no survey assistance was prayed for. The courts below have concurrently held that the plaintiff has failed to prove that the R.S.A. No. 732/2008 : 2: plaint B schedule pathway was originally having a width of 7 links as contended by the plaintiff and that it was by encroaching into the same that the plaint C schedule compound wall was constructed by the defendant. As rightly observed by the courts below, without getting the actual extent of the property held by the defendant ascertained by a survey commission, it could not be found that the defendants had encroached into the plaint B schedule pathway. Similarly, the plaintiff did not establish that the original width of the pathway was 7 links. The commissioner noted that the width of the plaint B schedule pathway is one metre which corresponds to 5 links only. No doubt, the Commissioner noticed that the plaint C schedule compound wall was recently constructed. But in the absence of the request by the plaintiff to measure out the property of the defendants, it cannot be said that the plaint B schedule compound wall was not constructed in the property of the defendants, but was constructed by encroaching into the plaint B schedule pathway thereby reducing the width of the pathway to 5 links. The burden in this regard was wholly on the appellant, he being the plaintiff R.S.A. No. 732/2008 : 3: in the suit and he cannot now seek a remand of the matter to enable him to have a survey commission for the purpose of measuring out the property of the defendants. I do not find any question of law much less any substantial question of law warranting interference in this Second Appeal which is accordingly dismissed in limine. Dated this the 30th day of October, 2008. V. RAMKUMAR, JUDGE. rv R.S.A. No. 732/2008 : 4: