IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 SA.No. 706 of 1999(A) ------------------------------- AS.NO. 2/1996 of SUB COURT,KATTAPPANA OS.NO. 143/1989 of MUNSIFF COURT, IDUKKI .................... APPELLANT/APPELLANT/DEFENDANT IN O.S.143/1989 ------------------------------------------------------------------------------- CHACKO, SON OF MICHAEL, AGED 63 YEARS, RESIDING AT KOTHALATHIL HOUSE, MURIKKASSERY, VETHIKKUDY VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICST. BY ADV. SRI.C.K.ARAVINDAKSHA MENON SRI.K.C.CHARLES RESPONDENT/ RESPONDENT/ PLAINTIFF IN O.S.143/1989 ----------------------------------------------------------------------------------- RAMACHANDRAN, SON OF VELAYUDHAN, AGED 45 YEARS, PADINJARAYIL,MURIKKASSERY KARA, VATHIKUDY VILLAGE. BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO.706/1999 ORDER ON C.M.P.NO.1917/1999 IN S.A.NO.706/1999 DISMISSED 29/03/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO.JUDGE sts P.BHAVADASAN, J. ---------------------------- S.A.No.706 of 1999 --------------------------------- Dated this the 29th day of March, 2011 JUDGMENT The defendant in O.S.No.143/1989 before the Munsiff's Court, Idukki, who suffered concurrent decrees of mandatory injunction is the appellant. The parties and facts are hereinafter referred to as are available before the courts below. 2. Shorn of unnecessary details, the essential facts necessary for the disposal are as follows: The plaintiff claims rights over plaint A schedule property and the defendant claims, possession of the B schedule property. Both are in possession of the Puramboke land. The complaint of the plaintiff was that the structure put up by the defendant was protruding to his property. It was his case that by the removal of soil for putting up a structure in the B schedule, damages were caused to the building of the plaintiff. Therefore, the suit was laid for necessary reliefs. 3. The defendant resisted the suit contending that the plaintiff did not possess two cents of land but he was entitled to only 1.5 cents. He denied that due to excavation of soil and construction any damage had been caused to the building of the plaintiff. He also denied that any portion of the building put up by him projects into the property of S.A.No.706 of 1999 2 the plaintiff. He therefore, prayed for a dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts. A1 and A2 from the side of the plaintiff. The defendant examined as DWs 1 and 2. Exts.C1 and C2 are the commissioner's report and plan. Both the courts below found that there was no evidence at all to show that as a result of the excavation and construction made by the defendants, damages were caused to the plaintiff's house. Therefore, that part of the relief was rejected. The trial court held that since the structure in A schedule was put up long ago though the boundary as determined by the commissioner cannot as such be accepted, as the structure in B schedule protrudes into A schedule there is trespass. 5. Notice is seen issued on the following substantial questions of law: 1.Whether the courts below are justified in granting injunction in favour of the plaintiff when admittedly the plaintiff's land is sircar land and when there cannot be any presumption that possession follows title in respect of the land beyond the building in A schedule property ? 2. Whether the courts below are justified in granting mandatory injunction in favour of the plaintiff in the absence of proper measurement and demarcation of the properties in the possession of the plaintiff and defendant ? S.A.No.706 of 1999 3 3. Whether the courts below are justified in extending the equitable relief in favour of the plaintiff when the plaintiff approached the court with a false case that he purchased abut two cents of land from DW2 ? 4. Whether the lower courts are justified in granting the relief of mandatory injunction when the plaintiff has acquired in the construction made in the defendant's property upto the completion of the second storey ? 6. The learned counsel appearing for the appellant pointed out that the courts below erred in granting a decree for mandatory injunction. According to the learned counsel as long as the boundary between the property is not properly determined it could not be said that there is any encroachment. Attention was drawn to the fact that even going by the plaint averments, plaintiff has put up a retaining wall of his property. Plaintiff's further case is that his northern boundary of the plaintiff's property extends beyond the retaining wall and it is over that portion of the property, encroachment is said to have been made. The Commissioner has found that it is not possible to identify the respective properties and in fact, it has been noticed by the commissioner that the structure of the plaintiff is put up on the retaining wall itself. If the retaining wall is treated as the boundary of the property of the plaintiff, then the commissioner says that the roof of the building in the plaint A schedule property protrudes into the property owned and possessed by the defendants. Therefore, it is S.A.No.706 of 1999 4 contended that unless the boundary of the properties is determined, it may not be proper to grant a decree against the defendant. 7. The learned counsel appearing for the respondent, on the other hand, drew attention of this court to the deposition of DW1. According to the learned counsel admitted that the entire construction made by the plaintiff was into his own property and no portion of structure protrudes into the property of the defendant. It was this admission which persuaded the trial court to grant a decree in favour of the plaintiff. The lower appellate court also confirmed the same. The learned counsel pointed out that the findings in a question of fact and so no interference is called for in the second appeal. 8. At the outset, one must notice that no title as such is established in respect of both properties. PW2 is the person who said to have sold properties to both the persons. According to his evidence, he gave 1.5 cents to plaintiff and two cents to defendant. His right to do so is open to serious doubt as admittedly it is puramboke land. Whatever that be, the plaintiff claimed to be in possession of nearly two cents. It is his case that by the excavation of soil from the property of the defendant is huge quantities and also the filing done in the property damages were caused to his building. It is his further case that a portion of the construction made by the defendants encroaches S.A.No.706 of 1999 5 into his property. 9. It is significant to notice that the boundary of the property has not been determined. A survey stone was noticed by the commissioner but the trial court refused to accept that as the boundary for cogent and convincing reasons. One must remember that the case of the plaintiff is that his property extends further north of the retaining wall, of course he admits that his construction is on the retaining wall. The commissioner says that a portion of the asbestos sheet of the structure put up by the plaintiff protrudes the property of the defendant. Both the courts below have found that a portion of the structure put up by the defendant over reaches into a portion of the plaintiff's property. 10. It is to be noticed that the structure put up by the defendant is three storied building. As per the evidence, the objection of the construction came long after the commencement of construction of the building. It is true that the commissioner's report shows that a portion of the building put up by the defendant overlaps the asbestos sheet put up by the plaintiff. But to direct the defendant to remove the roof damaging the building put up by the defendant would be harsh. The fact that if in future, the plaintiff wants to construct, he will finds it difficult is not by itself a ground to direct the defendant to demolish a S.A.No.706 of 1999 6 portion of the roof. First of all, one has to bear in mind that the property of the plaintiff has not been identified. Whatever that be, if at all any injury is caused to the plaintiff can be surely monetarily compensated. No particular damage can be said to have been caused to the plaintiff by the structure of the defendant especially when the boundary is not determined. In the result, this appeal is partly allowed and the decree for mandatory injunction is set aside. The plaintiff is granted a decree for a sum Rs.10,000/- as compensation with 6% interest from the date of suit till realisation, from the defendant as damages suffered by the plaintiff. The amount may be realised personaly and the assets of the defendant. The plaintiff will get his costs in the Court. P.BHAVADASAN, JUDGE. ln