IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 328 of 2008()
1. KARUNAKARAN NAIR, (DIED) EARIKATTAYA
... Petitioner
2. RADHAMANI.V., HARTARTALKAR VIVEKANANDA
3. SAROJINI AMMA, MANGATTU VEEDU
4. MOHANDAS,VIVEKANANDA HOSPITAL,
5. SURESHKUMAR,
6. LATHAKUMARI, KOLASSERI VEEDU,
Vs
1. KALYANI AMMA (DIED) & ORS
... Respondent
For Petitioner :SRI.S.SUBHASH CHAND
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :17/06/2008
O R D E R
K.P.BALACHANDRAN, J.
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R. S. A. No.328 of 2008
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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
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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
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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/-