IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 RSA.No. 1157 of 2008() ---------------------- AS.12/2004 of SUB COURT,NEYYATTINKARA OS.143/2000 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT/APPELLANT/IST DEFENDANT:- ------------------------------------------------------ ALIYARKUNJU, S/O.NEERASAYU, AGED 67, LAILA BHAVAN, KUSHAVOOR JUNCTION, ANAD MURI, NANNIYODE VILLAGE. BY ADV. SRI.D.KISHORE RESPONDENT(S): RESPONDENTS/PLAINTIFF AND 2ND DEFENDANT:- --------------------------------------------------------------------------- 1. RAGINI, D/O.RADHAMANI, AGED 34, RADHA MANDIRAM, SATHRAKUZHI, PALODE, ANAD VILLAGE. 2. NISSAR, S/O.ALIYARKUNJU, LAILA BHAVAN, KUSHAVOOR JUNCTION, ANAD MURI, PALODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------------------- R.S.A.No.1157 of 2008 ---------------------------------------- Dated this the 30th day of June, 2009 JUDGMENT The first defendant in O.S.No.143/2000 on the file of the Munsiff Court, Nedumangad is the appellant. The appeal is directed against the decree and judgment in A.S.No.12/2004 on the file of the Sub Court, Neyyattinkara. The suit was filed for fixation of boundary and permanent prohibitory injunction. The trial court decreed the suit, confirmed in appeal. Hence the second appeal. The parties are arrayed as defendant and plaintiffs as in the suit. 2. The plaintiff claims title by virtue of Ext.A1 gift deed. According to the plaintiffs she is in possession and enjoyment of plaint A schedule property bounded by well defined boundaries on all sides. In the property there is a shop building situated in the plaint A schedule property in which the plaintiff is conducting business. The defendants are having property on the north and east of the plaint A schedule property. It is her further case there is a mud bund separating the plaint A schedule property from the defendants' property. In their attempt of constructing a building in their property it is alleged R.S.A.No.1157 of 2008 2 by the defendants cut and removed the rafters of the roof of the plaintiff's building and tried to demolish the northern wall of the said building. Subsequently the suit was amended stating that during the pendancy of the suit defendants constructed the building with its sunshade encroaching into the plaint A schedule property. It is also alleged that they dumped mud into a portion of the plaint A schedule property having an extent of 200 Sq.links. The said small tiny plot is described as plaint B schedule property. The amendments sought for and granted was the prayer for mandatory injunction to remove the encroachments made into the plaint B schedule property and to restore the plaint A schedule property to its original position. 3. In the written statement filed by the first defendant it is interalia contended that the plaintiff was never been in possession of the plaint A schedule property that the plaint schedule property cannot be identified on the basis of the plaint schedule decription and that the plaintiff has been conducting business in a portable shop which was protruding into the road puramboke. The above property of the plaintiff and the R.S.A.No.1157 of 2008 3 defendants' property on the north and east are separated by boundary walls aged more than 17 years. The property belonging to the defendants is having an extent of 7 cents. The above property and the property claimed by the plaintiff originally belonged to a person by name Casper Gomas. The allegation that the defendant violated the permanent prohibitory injunction and made construction of the building in the property of the plaintiff are denied. The trial court in support of the respective contentions of the parties examined Pws.1 to 3, DW1, Exts.A1 and A2, Ext.B1 to B4(a), Ext.C1, C1(a), C2, C2(a), C2(b) and C3 were marked. The Advocate Commissioner was deputed for local inspection and he prepared Ext.C2 and Ext.C2(a) report and plan respectively. The Commissioner reported that there was no mud wall separating the property of the defendants from the plaint schedule property. According to Ext.C2 report, a brick wall aged about two years was found to have been constructed in the north-south direction at a distance of 40 inches to the east of the shop building situated in the plaint schedule property. The commissioner has also noted construction activities of a building R.S.A.No.1157 of 2008 4 by the defendants in the property on the east and north of the aforesaid brick walls. It is also reported by the commissioner that the rafters of the shop building of the plaintiff in the plaint schedule property were found to have been cut and removed on the northern side of that building. The commissioner who was examined as PW.3 tendered evidence in support of the plan. Again the very same advocate commissioner was deputed with the assistance of a surveyor. The second report and the plan are marked as Ext.C1 series. Ext.C1 report contains the materials and datas gathered from the site as requested by both sides. The plaint A schedule property was identified and marked in red shade in Ext.C1(a) plan and marked as A B C F ED. Plaint B schedule is marked as C D E F plot in the plan. The sunshade of the building of the defendants is found to have been protruding into the 200 Sq.links of land forming part of plaint A schedule property. The commissioner also reported that the said construction of the sunshade was done after his previous visit and preparation of Exts.C2 series. The trial court also noted that the defendants have not filed any objection to Exts.C1 and C1(a) R.S.A.No.1157 of 2008 5 prepared by the advocate commissioner. Though he was examined at length by the learned counsel for the defendants, nothing could be brought out to discredit his datas recorded in the report and plan. The trial court also considered the other documents including Ext.B3 produced by the appellants/defendants. The trial court observed that the inability of the vendor of Ext.B3 sale deed to reveal the title document by virtue of which he obtained the property so conveyed cannot be said to be of any fatal consequence. 4. The trial court examined further question as to whether the plaintiff could establish that she had been in possession of the plaint schedule property pursuant to Ext.A1 gift deed and that whether the defendants made any encroachments into the plaint schedule properties subsequent to the institution of the suit. This question was examined on the basis of oral and documentary evidence adduced by both sides. The trial court accepted the identification made by the commissioner in Ext.C1 (a) plan of plaint schedule property and on evidence held that the defendants committed encroachment R.S.A.No.1157 of 2008 6 into the plaint B schedule property and that in such circumstances the plaintiff is well justified in claiming mandatory injunction directing to remove the encroachments. Thus the reliefs sought for after amendment are granted and the boundary between the plaintiff and the defendants was fixed as indicated in Ext.C1(a) plan. On the basis of the findings the suit was decreed granting the mandatory injunction and for fixation of northern and eastern boundary. The prayer for permanent prohibitory injunction is rejected. 5. The appellate court also considered the evidence on record, the contentions of respective parties and the commissioner's report and plans. The appellate court also accepted the identification of plaint A & B schedule property in Ext.C1(a) plan. The court also placed reliance on the commissioner's oral evidence as PW3. 6. The appellants/defendants claiming title and possession over 7 cents which is lying on the northern and eastern side of the plaint schedule property. They claimed title by virtue of Exts.B1 and B2 purchase certificate. The appellate R.S.A.No.1157 of 2008 7 court also noted that the defendant did not ask the commissioner to measure out the property covered Exts.B1 and B2 in spite of the measurements of their building and compound wall. The appellants have no case any portion of their property was reduced to the possession of the plaintiff by any act done by her. The appellate court further held that the Ext.C1 report and testimony of commissioner as PW.3 shows that the defendants had constructed the sunshade protruding into the plaint A schedule property and that the defendants plastered the building after the first visit of the commissioner on 21/2/2000. The appellate court also agreed with the findings arrived at by the trial court and held that the trial court was justified in granting a decree for mandatory injunction and fixation of boundary. 7. The questions raised by the appellant/defendants are discussed, appreciated and considered in detail by both courts. Both courts found concurrently that the plaintiff is entitled to mandatory injunction and fixation of boundary as prayed for. The defendants' case as set out by him in the written statement and developed during the evidence stage was separately considered R.S.A.No.1157 of 2008 8 in detail and found that defendant has no right over plaint A schedule property. The findings entered into by the courts are solely based on facts, materials and circumstances. I am unable to take a different view from that expressed by the fact finding court. No question of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed in limine. (HARUN-UL-RASHID, JUDGE) skj.