IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932 RSA.No. 391 of 2005(E) ---------------------- (AS.33/2004 of SUB COURT, SULTHAN BATHERY OS.110/2002 of MUNSIFF COURT, KALPETTA) .................... APPELLANTS/DEFENDANTS. ------------------------------------------ 1. PADMANABHAN, S/O.APPU NAMBIAR, KAKKUTHU HOUSE, NEELIKAPPU, VELLARMALA AMSOM DESOM VYTHIRI TALUK, WAYANAD DISTRICT. 2. V.YOOSUF, S/O.VAHAB, NEELIKAPPU, CHOORALMALA, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS/RESPONDENTS/PLAINTIFFS. -------------------------------------------------------------- 1. V.N.RAGHAVAN MASTER, S/O.NARAYANAN, SREE CHAKRAM, CHOORALMALA, VELLARMALA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. 2. SHYMALA, W/O.RAGHAVAN MASTER, SREE CHAKRAM, CHOORALMALA, VELLARMALA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.T.R.RAVI (CAVEATOR) BY GOVERNMENT PLEADER, SRI.P.R.JAYAKRISHNAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK P.S.GOPINATHAN, J. ------------------------------ R.S.A. No.391 OF 2005 ------------------------------ Dated this, the 14th day of December, 2010 J U D G M E N T ~~~~~~~~~~~ The defendants, in O.S.No.110/2002 on the file of the Munsiffs' Court, Kalpatta, are the appellants. The respondents herein, who had acquired the plaint 'A' schedule property measuring 24 cents, of which 'B' & 'C' schedule property are part and parcel, by virtue of Exts.A1 and A2 and had been in absolute possession and enjoyment of the house and they were residing in the house situated in the plaint schedule property. While so, the appellants attempted to trespass in to the plaint schedule property by demolishing the compound wall on the northern side to widen the pathway which is running along the northern boundary of the plaint 'A' schedule property. Apprehending that the respondents could not resist the highhanded activities of the appellants, they approached the trial court with a suit for prohibitory injunction alone and obtained an order of ad-interim injunction. They had also taken out a Commission. The Commissioner had measured the properties in accordance R.S.A.No.391/2005 - 2 - with the survey records and title deeds with the assistance of a Surveyor. Despite the order of ad-interim injunction granted by the trial court, the appellants trespassed into the plaint schedule properties and committed mischief by demolishing the compound wall, gate, portion of fence and destroying the agricultural improvements. Thereupon, the respondents amended the suit for mandatory injunction to restore the trespassed property along with compound wall and gate and also for damages. 2. The appellants contended that the respondents trespassed into the pathway along the northern side of their property and enclosed a portion of the pathway and thereby reduced the width of the pathway and that the appellants had not at all trespassed to the plaint schedule properties or did commit any mischief. 3. After raising the issues, the parties were sent for trial. On the side of the respondents, PWs 1 and 2 were examined and Exts.A1 to A8 and C1 to C4 were marked. While amending the plaint, the trespassed property was R.S.A.No.391/2005 - 3 - separately described as 'B' schedule and the remaining portion was described as 'C' schedule. The appellants were examined as DWs1 and 2. 4. The trial court on appraisal of the evidence, arrived at a conclusion that the plaint 'A' schedule property absolutely belong to the respondents as was obtained by virtue of Exts.A1 and A2 and they have been enjoying the same. They were also paying basic tax as evidenced by Exts.A3 to A6. In support of the plea of possession, the respondents had also obtained Exts.A8 and A9 possession certificates. Relying upon Exts.C1 and C3 Commission Reports and Ext.C4 plan, prepared by the Commissioner with the assistance of the Taluk Surveyor, it was further found that plaint 'B' schedule property, which forms part of 'A' schedule was encroached by the appellants in violation of the order of interim injunction. While trespassing into the plaint 'B' schedule property the compound wall, gate, fence and agricultural improvements therein were also damaged. The appellants who contended that the respondents trespassed to the pathway on the northern side failed to establish that the R.S.A.No.391/2005 - 4 - respondents are in possession of any bit of property beyond the property covered by Exts.A1 and A2 or there was any trespass to the pathway. It was also revealed out in evidence that the appellants approached the respondents for giving some property for widening the pathway and it was declined by the respondents. The trespass and mischief in dispute was because the respondents declined to surrender land for widening the pathway. The Report of the Commissioner along with Ext.C4 plan would show that the trespass committed by the respondents over the 'B' schedule property was subsequent to the institution of the suit. The trial court having found title in favour of the respondents and the alleged trespass against the appellants decreed the suit. The appellants were restrained from further trespassing into the plaint 'C' schedule property or committing any sort of waste or anyway interfering with the peaceful possession and enjoyment of the plaint 'C' schedule property. The respondents were further directed to restore the plaint 'B' schedule property with gate and compound wall by a mandatory injunction. Relying upon the report of the Commissioner, the trial court had also found that the R.S.A.No.391/2005 - 5 - respondents had sustained damage to the tune of Rs.5000/-. The appellants were also directed to pay the damages. 5. Though the appellants took up the matter in appeal as A.S.No.33/2004 before the Sub Court, Sulthan Bathery they were unsuccessful. The appellate court concurred with the trial court and arrived at a finding that plaint 'A' schedule property absolutely belongs to the respondents and that plaint 'B' schedule property was trespassed during the pendency of the suit and that the respondents had sustained damages as found by the trial court. 6. I heard Sri.Kaleeswaram Raj, the learned counsel for the appellants and Sri.T.R.Ravi, learned counsel appearing for the respondents; and perused the judgments of the courts below. The decree and judgment impugned is based upon the finding of fact regarding the title and possession of the respondents over the plaint schedule property on the strength of Exts.A1 and A2 corroborated by Exts.A3 to A8. The trespass to 'B' schedule property was found against the appellants and in favour of the respondents R.S.A.No.391/2005 - 6 - basing upon the report of the Commissioner. The damages were determined with reference to the report of the Commissioner. Properties were identified with reference to the titled deeds and survey records. There is nothing to show that any error occurred in identifying the properties. All are questions of fact. Going by the judgments impugned, I find that the findings of facts arrived at by the trial court and confirmed by the appellate court are on the basis of the evidence on record. No question of law is involved. I find no reason to interfere with the impugned judgment and decree in Second Appeal. The Appeal is devoid of merits. Accordingly, it is dismissed. However, in the special circumstance of the case, I direct the parties to suffer their costs. (P.S.GOPINATHAN, JUDGE) ps