IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 RSA.No. 270 of 2011() --------------------- AS.387/2008 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.1311/1998 of II ADDL.MUNSIFF COURT, ERNAKULAM .................... APPELLANTS/RESPONDENTS IN A.S ------------------------------------------------- 1. GEETHA THAMPI, W/O.THAMPI, AGED 39 YEARS, AALAKKERIL HOUSE, HOUSE NO.1/386-A, THUTHIYOOR, KAKKANAD P.O., KOCHI-30. 2. THAMPI, AALAKKERIL HOUSE, HOUSE NO.1/386-A, THUTHIYOOR, KAKKANAD P.O, KOCHI-30. BY ADV. SRI.JACOB CHACKO RESPONDENT(S): APPELLANTS IN A.S -------------------------------- KESAVAN, S/O.THAYI, AGED 39 YEARS, ADUKKATH HOUSE, THUTHIYOOR, KAKKANAD P.O., KOCHI-30. ADV. SRI.DINESH R.SHENOY FOR R1 SRI.G.HARIKRISHNAN (TRIPUNITHURA) FOR R1 SRI.MAHESH MENON FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.270 of 2011 ............................................ DATED THIS THE 3rd DAY OF NOVEMBER, 2011 JUDGMENT Defendants in O.S.1311 of 1998 on the file of Munsiff Court, Ernakulam are the appellants. Respondent is the plaintiff. Suit was instituted for a mandatory and prohibitory injunction contending that respondent has title to eight cents of land in survey No.178/7 of Vazhakala Village and he obtained the property under Ext.A1 sale deed 3272/1977 of Edappally SRO, and western boundary is the panchayat road, northern boundary is a pathway, eastern boundary is a compound wall constructed with laterite stones and appellants are owners of the southern property and they have right over about four cents, which is described as plaint B schedule property. It is contended that respondent constructed a building in the plaint A schedule property in 1983 and a verandah was constructed on the southern side as a part of his residential building and the said verandah lies in the east-west direction having a width of 80 cms on its eastern end and a width of 25 cm on its western end and RSA 270/2011 2 it was constructed perfectly within the southern boundary of plaint A schedule property leaving a reasonable gap. The plaint B schedule property had no separating boundary till 9.8.1998. On 9.8.1998, appellants constructed a basement with boundary wall on her western boundary with granite stones. At that time he illegally extended the western boundary on its northern end beyond the verandah of the respondent. He has no right to do so. A decree for mandatory and prohibitory injunction was sought for. 2. Appellants resisted the suit contending that plaint B schedule property belongs to the second appellant and he obtained the property from the brother of first appellant under Ext.B1 document 410/1988 of Edappally SRO and at that time, the basement of the house of respondent was constructed. The basement was constructed trespassing into the property of the appellants, taking advantage of their absence in the property. In 1990, respondent constructed the verandah below the sunshade, which was constructed trespassing into the property of the appellants. Respondent has no right over that portion of the property of the appellants. Hence respondent is not entitled to RSA 270/2011 3 the decree for mandatory or prohibitory injunction sought for. 2. Learned Munsiff, on the evidence dismissed the suit holding that respondent failed to establish that appellants encroached upon any portion of the property belonging to the respondent and therefore he is not entitled to the decree. Respondent challenged the decree before District Court, Ernakulam in A.S.387 of 2008. Learned Additional District Judge, on re-appreciation of the evidence, found that the dispute is only with regard to 25 sq.metres of land, which lies in between admitted properties of respondent and appellants. Based on the report and plan submitted by the Commissioner it was found that appellants have encroached a small portion of the plaint A schedule property on the western end and therefore held that respondent is entitled to a decree for mandatory injunction. Appellants were directed to remove the encroached portion. The appeal was allowed and suit was decreed. It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. The argument of the learned counsel is that first appellate court did not properly appreciate the evidence and was wrong in holding RSA 270/2011 4 that the report of the Commissioner shows an encroachment. It was argued that the report of the Commissioner with the plan establish that appellants have not encroached upon any portion of the plaint A schedule property and therefore the decree granted is not sustainable. Learned counsel made available copy of the report and plan submitted by the Commissioner. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The Commissioner, with the assistance of Taluk Surveyor identified the properties and demarcated the same in Ext.C2 plan. Plaint A schedule property which belongs to the respondent lies to the north and plaint B schedule property belonging to appellants lies to the south. The western boundary of both the properties of appellants and respondent is admittedly the road. The dispute arose when the appellants started construction of a basement for constructing a compound wall on the western boundary. According to respondent, it was by encroaching a small portion of the plaint schedule property, which was denied by appellants. Appellants on the other hand, contended that respondent encroached upon a portion of the property by first putting up a RSA 270/2011 5 sunshade and thereafter a verandah. The Commissioner has demarcated the northern boundary of plaint B schedule property which is the southern boundary of plaint A schedule property. There is no dispute with regard to the said boundary demarcated by the Commissioner in Ext.C2 plan. Respondent cannot claim any right over any portion of the property which lies to the south of the boundary line which separates plaint A schedule property and B schedule property. Learned District Judge granted a decree finding that there is an encroachment on the north western portion of plaint B schedule property. In the light of the identification of the property, that factual finding cannot be interfered. In such circumstances, appeal is dismissed making it clear that the property which belongs to respondent viz, the plaint A schedule property lies to the north of the demarcating boundary and the decree granted is only be in respect of that property. M.SASIDHARAN NAMBIAR, JUDGE lgk