IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 RSA.No. 532 of 2011() --------------------- AS.179/2009 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.108/2004 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANTS ------------------------------ 1. SASIDHARAN,S/O.LATE SURENDRAN,AGED 61 YEARS,KAUSTHUBHAM,15 KAIRALI NAGAR,KOLLAM VADAKKE MANAKKADU VEEDU,VAKKOM DESOM,VAKKOM VILLAGE,THIRUVANANTHAPURAM DISTRICT. 2. SUDARSANAN,S/O.LATE SURENDRAN,AGED 58 YEARS,R/AT KAUSTHUBHAM,15 KAIRALI NAGAR,KOLLAM VADAKKE MANAKKADU VEEDU,VAKKOM DESOM,VAKKOM VILLAGE,THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT(S): --------------- 1. SREEDHARAN,S/O.LATE KRISHNAN, AGED 72 YEARS,RAMAMANGALAM,MOONNALUMMOODU, VAKKOM VILLAGE,THIRUVANANTHAPURAM 695 308. 2. INDIRA,D/O.KUNJU VAIDHYAR,AGED 67 YEARS,R/AT RAMAMANGALAM,MOONNALUMMOODU, VAKKOM VILLAGE,THIRUVANANTHAPURAM 695 308. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.532 OF 2011 ............................................ DATED THIS THE 27th DAY OF JUNE, 2011 JUDGMENT Plaintiffs in O.S.108 of 2004 on the file of Sub Court, Attingal are the appellants. Defendants are the respondents. Appellants instituted the suit seeking a decree for putting up a boundary wall on the western and northern side of plaint A and B schedule properties after fixation of the boundary, mandatory injunction directing respondents to remove any portion of the firewood shed allegedly put up by encroaching into the plaint schedule property and also for permanent prohibitory injunction to restrain the respondents from trespassing into the plaint schedule properties or interfering with their peaceful possession. At the time of trial, appellants had given up the prayer for fixation of the boundary and pressed only the relief of mandatory and prohibitory injunction. Appellants contended that the plaint A and B schedule properties belonged to them and are in their possession and plaint A schedule property is 5 cents in Survey No.207/14 which belong to the first appellant and plaint B RSA 532/2011 2 schedule property, four cents in Survey No.207/3 and one cent in survey No.207/14 of Vakkom Village and belonged to the second appellant and the property originally formed part of 28 cents in Survey No.207 of Kadakkavoor pakuthy involved in partition deed 1074/1951 of SRO, Chirayinkeezhu and the deceased father of appellants purchased the property as per registered sale deed of 1151 and has been in possession of the property as a compact plot with well defined boundaries. It is contended that there was a compound wall on the east, railway property on the west, compound walls and mud wall on the south and north and on the northern boundary plaint B schedule property and that of the entire 28 cents, there was a compound wall from east to west and thereafter there is a mud wall. A tarred road was constructed through the railway puramboke land on the western boundary of 28 cents. After the death of the father, appellants along with the mother divided the property as per partition deed 1778/97 and A schedule property was alloted to the first appellant and B schedule property to Bindu and subsequently Bindu transferred her right in favour of second appellant as per sale deed 1040/99. Thus, they are in possession of the property as absolute owners. RSA 532/2011 3 It is contended that after a road was laid through the railway puramboke, appellants have been using and enjoying the property upto the eastern end viz, the road as part and parcel of 28 cents and respondents have no manner of right, title or possession to the property and on measurement it was revealed that a portion of the land belonging to the Indian Railways, which remains as a triangular plot between the road and plaint A and B schedule properties, and it is described as plaint C schedule property. It is contended that the said property is necessary for the convenient enjoyment of plaint A and B schedule properties, and appellants have perfected their title to the plaint C schedule property because of their long uninterrupted use and the property of the respondent is on the north western portion of northern boundary of the plaint schedule property and they trespassed and encroached upon plaint B schedule property and put up fire wood shed abutting the southern poles of the northern boundary of plaint B schedule property and they have no right to do so and therefore boundaries are to be fixed and appellants are entitled to get a mandatory injunction directing the respondents to remove the firewood constructed in the plaint A schedule RSA 532/2011 4 property encroaching a portion. 2. Respondents resisted the suit contending that appellants have no title to the plaint A and B schedule properties and the boundary description of 28 cents is also not correct and on the south and north, there are compound walls separating the neighbouring properties and on the west there is a kayyala which was later demolished by the appellants in 2004 on the pretext of putting up a compound wall and with malafide intention, they raised a claim beyond a portion on the western kayyala, and appellants have no right over any portion of the property in the possession of respondents and they are not entitled to the decree sought for. After the amendment of the plaint, an additional written statement was filed contending that the triangular portion is in the possession of respondents for the last several years and the description of the plaint C schedule property is not correct and appellants have no right or title to the said property. 3. Learned Munsiff, on the evidence found that appellants have not established their title to the disputed property. Therefore the suit was dismissed. Appellants challenged the judgment before Additional District Court, Thiruvananthapuram. RSA 532/2011 5 Learned Additional District Judge, on reappreciation of the evidence, found that the Commissioner has demarcated plaint A and B schedule properties as per the title deeds and the disputed property does not form part of the said property and appellants have not established any right or title to the said property and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was heard. The learned counsel vehemently argued that courts below did not properly appreciate the evidence and the plaint C schedule property claimed by the appellant lies on the north western portion of the plaint B schedule property and on the evidence courts below should have found that appellants have title to the said property. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Courts below on proper appreciation of evidence found that Commissioner has identified plaint A and B schedule properties claimed by appellants and demarcated the same in Ext.C2 plan and found that respondents have not encroached upon any portion of the said property and plaint C schedule property does not form part RSA 532/2011 6 of the plaint A and B schedule properties. In the light of that factual finding, I find no merit in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk