IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 RSA.No. 1196 of 2009() ---------------------- AS.91/2003 of PRINCIPAL SUB COURT,IRINJALAKUDA OS.1424/2001 of ADDL.MUNSIFF COURT,IRINJALAKUDA .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- JOHNY, AGED 55 YEARS, S/O ANGAMALY VAREED, RESIDING AT PERAMBRA DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. BY ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA SRI.M.R.VIBIN RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- ANTONY @ JOHNSON, S/O.ANGAMALY VAREED, RESIDING AT PERAMBRA DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. ADV. SRI.V.V.ASOKAN SRI.K.S.SAJEEV KUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1196 of 2009 -------------------------------------- Dated this the 16th day of March, 2010. JUDGMENT This Second Appeal is in challenge of judgment and decree of learned Principal Sub Judge , Irinjalakuda in A.S.No.91 of 2003 confirming judgment and decree of learned Additional Munsiff, Irinjalakuda in O.S.No.1424 of 2001. Appellant/defendant and respondent/plaintiff are brothers. Latter claimed that the suit property - 18 ¾ cents was allotted to him as A schedule item No.1 as per partition deed No.1935 of 1996 and the sister of appellant and respondent was given right of residence in the building in the suit property as recited in the partition deed. Property on the south belonged to the appellant. There was boundary in between the properties but in the course of time it was lost. Appellant/defendant attempted to trespass into the suit property and hence the suit. Appellant contended that himself and respondent got B schedule item No.1 and A schedule item No.1 respectively, of partition deed No.1935 of 1996 and that the said properties lie as single plot. He denied the allegation of trespass. Learned Munsiff accepted Exts.C1(a) and (b) and fixed the boundary between the properties of appellant and respondent. Prayer for mandatory injunction was rejected. There was a decree for prohibitory injunction against appellant trespassing into the suit property. Appellant took up the matter in appeal while respondent preferred a cross objection. First appellate court after consideration of the evidence modified the decree passed by learned Munsiff fixing boundary RSA No.1196/2009 2 of the suit property as per Exts.C1(a) and (b) and holding that the sister of appellant and respondent has right of residence in the building situated in the property during her life time. Appellant was directed to demolish portion of building coming in the suit property within three months of cessation of the life interest of the sister or her relinquishing the right whichever is earlier. That judgment and decree are under challenge at the instance of appellant/defendant. The only contention raised by the learned counsel before me is that there was acquisition of portion of the properties belonging to the appellant and respondent for widening the National Highway situated on the east of the property and that in the light of that development the boundary has to be refixed. Learned counsel for respondent has contended that pursuant to the acquisition, parties have already received compensation and the appellant has already constructed building in the property belonging to him. 2. Entitlement of the parties to the properties referred to in A schedule item No.1 and B schedule item No.1 of the partition deed is not under challenge. Courts below have accepted Exts.C1(a) and (b) as showing the boundary between the properties belonging to the appellant and respondent. As it is seen from Exts.C1(a) and (b) suit property lies on the north of the property belonging to the appellant and the boundary in between, east-west is fixed. The National Highway goes along eastern side of the property of the parties and admittedly acquisition was from the eastern portion of the properties belonging to them. That cannot in any way affect the southern boundary of the suit property RSA No.1196/2009 3 (northern boundary of the property belonging to the appellant) extending east- west. Acquisition has no bearing on the boundary between the properties fixed as per Exts.C1(a) and (b). As such there is no merit in the contention raised by the appellant. On hearing learned counsel and going through the judgments under challenge I do not find any substantial question of law is involved in the Second Appeal requiring a decision. Resultantly Second Appeal is dismissed in limine. I.A.No.2725 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks