IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 RSA.No.328 of 2008 (E) --------------------------- AS.46/2003 of SUB COURT, THIRUVALLA OS.298/1997 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------ KARUNAKARAN NAIR, EARIKATTAYA- KONNAYIL VEETTIL, KATTOKARA,THIRUVALLA VILLAGE. BY ADV. SRI.S.SUBHASH CHAND RESPONDENTS/RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1.KALYANI AMMA, (DIED), EARIKATTAYA KONNAYIL VEETTIL, KATTOOKARA, THIRUVALLA VILLAGE. 2. RADHAMANI.V., HARTARTALKAR VIVEKANANDA HOSPITAL, CHOPPADA P.O., JALGANON DISTRICT MAHARASHTRA. 3. SAROJINI AMMA, MANGATTU VEEDU THALAKKULAM, PLASHANAL POST, PALA TALUK KOTTAYAM DISTRICT 4. MOHANDAS,VIVEKANANDA HOSPITAL, HOUSING COMPLEX,CHOPPADA P.O., JALGANON DISTRICT MAHARASHTRA. 5. SURESHKUMAR, VIVEKANANDA HOSPITAL HOUSING COMPLEX, CHOPPADA P.O.,JALGANON DISTRICT MAHARASHTRA. RSA.No.328 of 2008 (E) -2- 6. LATHAKUMARI, KOLASSERI VEEDU, THADIYOOR POST, THIRUVALLA TALUK PATHANAMTHITTA DISTRICT BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.328 of 2008 ------------------------------------------------ Dated this the 17th day of June, 2008 JUDGMENT The plaintiff in O.S.298/97 on the file of the Munsiff's Court, Thiruvalla who has lost his case concurrently in both the courts below is the appellant. Out of the two defendants who were the respondents before the first appellate court, the first respondent died and her L.Rs are impleaded as additional respondents 3 to 5. The respondents herein are the defendants in the suit who were impleaded in the suit as respondents 1 and 2 and the L.Rs of the deceased first respondent as the deceased first respondent had not been removed from the party array, but was impleaded in this R.S.A also. 2. O.S.298/97 was filed by the appellant as plaintiff for recovery of possession of a portion of the property alleged to have been trespassed upon by the defendants; for R. S. A. No.328 of 2008 -2- fixation of boundary and for mandatory injunction inter alia on the allegation that the scheduled property belonged to the mother of the first defendant by virtue of partition of 1118 M.E; that in the year 1970 vide Ext.A1 partition 13 cents of property was alloted to the plaintiff; that another 34 cents of property was purchased by the plaintiff under Ext.A3; that thereafter the plaintiff is in absolute possession and enjoyment of 47 cents of property which is scheduled as item No.2; that the 35 cents of property remaining in possession of the first defendant is item No.3 property; that without the knowledge and consent of the plaintiff the defendants constructed a compound wall to a height of 1.5 feet along the northern boundary of item No.2 property from east to west; that it is understood that there is deficit of three cents in extent in plaint item No.2 property and that the same is scheduled as item No.4. R. S. A. No.328 of 2008 -3- The prayer is to have recovery of the said three cents and to have fixation of boundary and for a mandatory injunction to remove the compound wall constructed by the defendants. 3. Defendants 1 and 2 filed a joint written statement resisting the suit. According to them, there was permanent boundary on the southern side of the defendants' property ever since the partition of 1118 M.E and there is barbed wire fencing and the trees were also standing in the boundary separating the property of the plaintiff and the defendants. The allegation that there is deficit in extent by three cents is false and is made with ulterior motive of grabbing the property of the defendants. Item No.4 property is not property belonging to the plaintiff, but is property in exclusive possession of the defendants. There is well defined boundary and there is no necessity for the fixation of the boundary. If at all any R. S. A. No.328 of 2008 -4- portion of the property is found to be in possession of the defendants, the plaintiff has lost title thereto for adverse possession for more than 30 years and therefore, the plaintiff is not entitled to the relief sought for. The defendants prayed for a dismissal of the suit with their cost. 4. On the above pleadings, the trial court raised necessary issues for trial and considering the case in the light of the above pleadings and the evidence adduced at trial which consisted of oral evidence of PWs.1 and 3 and DWs.1 and 2 and documentary evidence Exts.A1 to A3, B1 and C1 to C3 dismissed the suit. The aggrieved plaintiff filed A.S.46/03 before the first appellate court and the first appellate court dismissed the appeal concurring with the findings of the trial court. Hence, this R.S.A by the plaintiff. 5. It is contended before me by the learned counsel for the appellant that R. S. A. No.328 of 2008 -5- actually three cents has been encroached upon by the defendants and they have reduced it to their possession; that the Surveyor has found excess land in possession of the defendants taking in “Kuthakappattam” property as well; that possession of “Kuthakappattam” property along with the property of the defendants has not been pleaded in the written statement and no document also was produced by the defendants to establish that they have got “Kuthakappattam” right over the property shown by the Surveyor in the plan; that the total extent of item No.1 property was found by the Commissioner as 93 cents and 225 square links whereas as per Ext.A1 the extent was 96 cents and there was deficit to the extent of two and odd cents and that therefore, if at all there is such a deficit that deficit has to be proportionately made in item Nos.2 and 3 properties. R. S. A. No.328 of 2008 -6- 6. It is worthy to note that the plaintiff has no case that the defendants did trespass upon any portion of their property on any particular day and constructed a compound wall unauthorisedly reducing about three cents of property to their possession. The commissioner has reported that the boundary wall that has been constructed was along the boundary that existed originally. In Ext.C2 Commission Report, the Commissioner has reported the existence of remnants of old “kayyala” also along the said line. The shortage found on the measurement of the property of the plaintiff is only 800 square links and not three cents as pleaded in the plaint. It is an admitted case that certain portions of the plaintiff's property was taken for widening the road. If any portion of the property was taken for widening the road certainly there will be reduction in extent in the balance property that remains in the possession of the R. S. A. No.328 of 2008 -7- plaintiff. For the mere reason that there is reduction in extent in the property of the plaintiff it cannot be concluded that the defendants have trespassed upon any portion of the property belonging to the plaintiff. The court below has observed that the Commissioner and Surveyor has reported that the boundary separating the plaintiff and the defendants was along the G.F line and the present compound wall which is sought to be got demolished and removed is also exactly through the G.F line. Consequently, therefore, the plaintiff cannot seek to have a mandatory injunction to remove the said compound wall which is constructed along the boundary line that was already in existence. There is no prayer also in the plaint seeking for declaration that the plaintiff is having title to any portion of the property now found in possession of the defendants and therefore, the question of declaration of title to any R. S. A. No.328 of 2008 -8- portion of the property not in the possession of the plaintiff also does not arise. It appears that the attempt of the plaintiff is to grab certain portions of the property beyond their boundary line by advancing contentions that there is deficit in extent in their property and that is by reason of putting up of boundary by the defendants though the boundary was being put up along the line in which already there existed a boundary. The case of the plaintiff did not find favour in the circumstances with both the courts below and there is no merit in this R.S.A and no substantial question of law also arises for consideration by this Court in this R.S.A as is attempted to be made out. 7. In the result, refusing admission, I dismiss this R.S.A in limine. K.P.BALACHANDRAN, JUDGE kns/-