IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 RSA.No. 213 of 2011() --------------------- AS.67/2008 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.1141/2005 of PRINCIPAL MUNSIFF'S COURT,THIRUVANANTHAPURAM .................... APPELLANT/RESPONDENT/PLAINTIFF --------------------------------------------------------- P.K. RAJAN, S/O. KUTTAN, RESIDING AT T.C 6/1355 (1), CHERRUVAIKKAL, P.O, SREEKARYAM, THIRUVANANTHAPURAM. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH SMT.RESMI NANDANAN RESPONDENT(S): APPELLANT/DEFENDANT ------------------------------------------------------------------ VIKRAMAN NAIR, S/O. NEELAKANDA PILLAI, RESIDING AT MATHURCHAYA, CHEERUVAIKKAL, P.O. SREEKARIYAM, THIRUVANANTHAPURAM-17. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7/ 12 / 2011 THE COURT ON 07/12/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 213 OF 2011 =========================== Dated this the 7th day of December,2011 JUDGMENT Plaintiff in O.S.1141/2005 on the file of the Principal Munsiff's Court, Thiruvananthapuram Thiruvananthapuram is the appellant. Defendant is the respondent. Appellant sought a decree for permanent prohibitoryinjunction restraining the respondent from constructing the compound wall further, on the eastern boundary of the plaint schedule property and a mandatory injunction to demolish the structure already constructed and to put up a well defined and a strong boundary on the eastern boundary. Appellant claims title to the plaint A schedule property under Ext.A1 sale deed. The property of the respondent admittedly lies to the west of the plaint A schedule property. Plaint B schedule property R.S.A.213/2011 2 is the alleged trespassed area as according to the appellant respondent committed trespass into the plaint schedule property and constructed a compound wall encroaching upon the plaint A schedule property. It is on that basis a decree for mandatory injunction to demolish that structure was sought for. Respondent resisted the suit contending that he did not encroach into the plaint A schedule property and has constructed the compound wall only on the eastern boundary of his plot. Before the trial court appellant took out a commission to identify the plaint schedule property. Commissioner along with the surveyor inspected the property and submitted Ext.C2 report and Ext.C2(a) plan. Commissioner found that CE is the western boundary of the plaint A schedule property and respondent constructed a compound wall on DF line and thereby encroached upon the plaint B schedule property namely plot CDFE. Learned Munsiff accepting Ext.C2(a) plan granted a decree directing the respondent to remove the R.S.A.213/2011 3 plaint B schedule construction within two months. Appellant was permitted to construct a compound wall along the CE line. Respondent challenged the decree before Sub Court, Thiruvananthapuram as A.S.67/2008. The appeal was later transferred to Additional District Court, Thiruvananthapuram. Learned Additional District Judge on reappreciation of the evidence found that the learned Munsiff was not justified in granting a decree based on Ext.C2 (a) plan. It was found that the Commissioner has not identified the property with reference to the survey plan and the property of the respondent was not measured. In such circumstances the appeal was allowed. The decree was set aside and the suit was dismissed. It is challenged in the Second Appeal. 2. Second Appeal was admitted formulating the following substantial question of law. Whether the first appellate court was justified in dismissing the suit reversing the decree R.S.A.213/2011 4 granted by the trial court for the reason that the surveyor has not identified the plaint A schedule property based on the survey records or on the ground that property of the respondent was not measured and identified? 3. Though notice was served on the respondent, he did not appear. 4. Learned counsel appearing for the appellant was heard. 5. The argument of the learned counsel is that respondent did not produce his title deed and therefore appellant cannot be found fault for not getting his property identified. Learned counsel argued that even if the identification in Ext.C2 is not correct and a decree cannot be granted based on Ext.C2 plan, first appellate court was not justified in dismissing the suit and the suit should have been remanded for proper identification. Learned counsel argued that as is R.S.A.213/2011 5 clear from the judgment of the first appellate court, even respondent, the appellant before the first appellate court, argued before first appellate court that the suit is to be remanded and in such circumstances dismissal of the suit is not justifiable. 6. The dispute is actually with regard to the exact western boundary of the plaint A schedule property. The right and title of the appellant to the property covered under Ext.A1 is not disputed. It is also not disputed that plaint A schedule property is the property covered under Ext.A1. The dispute is only with regard to the western boundary of the plaint A schedule property. According to the respondent, who is in possession of the property which lies immediately to the west of the plaint A schedule property, he has constructed the compound wall, which was directed to be removed by the mandatory injunction, exactly on the eastern boundary of his property and he did not encroach upon any portion of the plaint A R.S.A.213/2011 6 schedule property. In the light of the said contentions, the dispute could be settled only on proper identification of the properties. 7. It is true that respondent did not produce the title deed before the courts below. As seen from the judgment of the first appellate court, even the appellant therein only sought a remand, complaining that the property was not identified by the Commissioner with reference to the title deed of the respondent. In such circumstances, having found that the property was not properly identified, first appellate court was not justified in dismissing the suit. The proper remedy should have been to remand the suit to the trial court, with a direction to identify the property of the appellant and the respondent with reference to their title deeds. In such circumstances, appeal can only be allowed and suit remanded. The appeal is allowed. The decree and judgment of the Additional District Court, R.S.A.213/2011 7 Thiruvananthapuram in A.S.67/2008 is set aside. O.S.1141/2005 is remanded to Munsiff Court, Thiruvananthapuram with a direction to dispose the suit afresh. Learned Munsiff shall appoint a Commission, at the expense of the plaintiff, with a direction to identify the plaint A schedule property with reference to Ext.A1 sale deed, with the assistance of the surveyor with reference to resurvey plan. Learned Munsiff shall also direct the Commissioner to identify the property of the respondent, if the respondent produces the title deed. If the respondent is not producing the title deed, he cannot be heard to contend that the identification of the property by the Commissioner is not correct as his property was not identified. The Commissioner shall fix the boundary which separates plaint A schedule property from the property of the respondent, which lies to its west. If on such identification it is found that any portion of the plaint A schedule property was encroached upon by the respondent, appellant is R.S.A.213/2011 8 entitled to get a decree for mandatory injunction to remove the structure. On the other hand, if it is found that the compound wall was constructed by the respondent on his boundary, the suit is to be disposed accepting the said compound wall as the boundary. Send back the records immediately to the trial court. As the respondent did not appear, learned Munsiff is directed to issue summons to the respondent for his appearance. Appellant is directed to appear before the Munsiff on 11.1.2012. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006