IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 RSA.No. 286 of 2011() --------------------- AS.129/2010 of ADDL. DISTRICT COURT, PARAVUR OS.489/2008 of MUNSIFF COURT,ALUVA .................... APPELLANT/APPELLANT/ DEFENDANT: ------------------------------------------- ASHRAF ALI, AGED 54 YEARS, S/O.MUHAMMED, KALATHIL NADUVILAPARAMBIL, VELIYATHUNADU KARA, U.C.COLLEGE.P.O., ALUVA WEST VILLAGE, ALUVA TALUK BY ADV. SRI.P.K.ABOOBACKER(EDAPPALLY) RESPONDENT(S)/ RESPONDENT/PLAINTIFF: ----------------------------------------------- ABDUL SALAM, AGED 38 YEARS, S/O.KALATHIL NADUVILE PARAMBIL, MEETHIAN PILLA RESIDING AT ELAVUNGAPARAMBIL, VELIYATHUNADU KARA, ALUVA WEST VILLAGE, ALUVA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.286 OF 2011 --------------------------------------------- Dated 4th March, 2011 JUDGMENT Defendant in O.S.489/2008 on the file of Munsiff's Court, Aluva is the appellant. Plaintiff is the respondent. The suit was filed seeking a decree for injunction contending that respondent is in absolute possession and enjoyment of the plaint schedule property obtained under Ext.A1 sale deed No.2158/2003. On the eastern side of plaint schedule property lies the property of the appellant. Both properties are separated by a compound wall. Appellant is conducting an oil mill in the eastern property 20 years back and at that time the western wall of the said oil mill was the said compound wall and as RSA 286/11 2 and when the working of oil mill was stopped the building became dilapidated. The portion of the building adjoining the eastern compound wall of the plaint schedule property was completely destroyed six years prior to the institution of the suit. Alleging that appellant is attempting to put up a building treating the compound wall as the wall of the building, so as to protrude the eaves to the plaint schedule property and appellant has no such right, a decree for prohibiting appellant from erecting eaves protruding into the plaint schedule property was sought. Appellant resisted the suit contending that he is having a two feet width of land to the west of the disputed portion of the wall and the oil mill by name Kalathil Oil Mill was in existence for the last 42 years and the oil mill is now being RSA 286/11 3 repaired and respondent is not entitled to get decree for injunction as sought for. It is also contended that brother of the respondent Kunjumuhammed had filed O.S.410/2008 earlier and it was dismissed and it is at the instigation of said Kunjumuhammed suit is filed. 2. Learned Munsiff on the evidence of Exts.A1 and A2, B1 to B5 and C1 and C1(a) granted a decree in favour of the respondent finding that respondent has title and possession to the plaint schedule property and appellant is not entitled to construct any structure protruding its eaves into plaint schedule property or causing eavesdrop to fall into the plaint schedule property. Appellant challenged judgment before Additional District Court, North Paravur in A.S.129/2010. Learned Additional District Judge on re-appreciation RSA 286/11 4 of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the appeal. 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that courts below fixed the eastern boundary of the plaint schedule property, which is western boundary of property of the appellant, without proper identification of the property with reference to the title deeds and therefore, the decree is not sustainable. It was also argued that oil mill was in existence for the last 42 years and the wall on the western side of the property is the wall of the oil mill and if so, necessarily its eaves should be protruding into the plaint schedule property and in fact a two feet width of land RSA 286/11 5 belonging to the appellant lies to the west of the western wall and in such circumstances, the decree is not sustainable. 5. It is admitted case that property of the appellant lies to the east of the property of respondent. Plaint schedule property is the western plot and property of the appellant lies to its east. Report of the Commissioner shows that there is a wall which exists from south to the north which separates the property of the appellant with that of the respondent. Though it was argued that appellant is having land, having a width of two feet, to the west of the existing wall which is treated as boundary by the courts below, no evidence was let in to establish that while constructing the wall any land was left on the western side. More over, Ext.C1(a) sketch RSA 286/11 6 prepared by the Commissioner shows that the eastern wall of the plaint schedule property exists continuously from north-south and therefore, there cannot be any land belonging to the eastern owner, to the west of that wall unless such land is there towards the south of the disputed portion also. But there is no such case. Though learned counsel argued that eaves of original building was protruding from the wall towards the west, no evidence was adduced to prove that eaves were so protruding as contended. Trial court and the First Appellate Court on appreciating the evidence entered a factual finding that the existing wall which separates the property of the appellant and the respondent is the boundary separating the properties. It is on that basis it was found that appellant is not entitled to construct any RSA 286/11 7 structure so as to protrude its eaves on the property of the respondent. In such circumstances, I find that no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.