IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 629 of 2006()
1. CHEMBAYIL VEERAN,
... Petitioner
2. VILAKKANDATHIL PATHUMMAKUTTY,
3. RAZIYABI,
4. SAINABA,
5. RAMLABI,
6. SAUDABI,
7. SHAJI,
8. SARABHANU,
9. ULLAKKAL MOIDEENKUTTY,
Vs
1. CHERICHIYIL UMMER,
... Respondent
For Petitioner :SRI.P.K.SURESH KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/11/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No.629 OF 2006
............................................
DATED THIS THE 28th DAY OF NOVEMBER, 2007
JUDGMENT
Defendants and legal heirs of deceased 2nd defendant in
O.S.211 of 1993 on the file of Munsiff Court, Parappanangadi are
the appellants. Respondent is the plaintiff. Respondent
instituted the suit seeking a decree for permanent prohibitory
injunction in respect of item No.1 of plaint schedule property.
Item No.1 of the plaint schedule property admittedly belongs to
respondent under Ext.A10 assignment deed and A3 surrender
deed and Ext.B1 partition deed. Item No.2 of plaint schedule
property which lies to the west of item No.1 of the plaint
schedule property admittedly belongs to appellants and it is item
No.2 of Ext.B1 property. The dispute is with regard to the exact
boundary which separates item No.1 of plaint schedule property
from item No.2 of plaint schedule property. Respondents
contended that there is a compound wall on the west of item
No.1 of plaint schedule property, which is separating the
boundary and respondents are in possession of the property
which lies to the east of the compound wall. Contending that
appellants are attempting to trespass into the property, a decree
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for injunction was sought. Appellants resisted the suit
contending that the measurement shown in respect of item No.1
of plaint schedule proeprty is not correct and executant No.1 of
Ext.B1 partition deed was only alloted 12 cents and therefore
respondent is not entitled to claim right over 13 = cents and
respondent is not entitled to the decree sought for. It was also
contended that the existing compound wall is not the boundary
which separates the property of respondent and appellants and
appellants have property further to the east of the compound
wall and when appellants attempted to put up a boundary
enclosing their property, the dispute arose and the suit was filed.
2. Learned Munsiff, on the evidence of PW1, DW1,
Exts.A1 to A10, B1 to B3 and C1 to C6, dismissed the suit
holding that item No.1 of plaint schedule property was not
properly identified and though the Commissioner in Ext.C3 plan
demarcated item No.1 of the plaint schedule property as plot
ABCDEFGH, it is not proved to be the property obtained under
Ext.B1 and therefore respondent is not entitled to the decree
sought for. Respondent challenged the judgment before Sub
Court, Tirur in A.S.158 of 1996. Learned Sub Judge, on
reappreciation of evidence, found that Ext.C3 plan shows that
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there is an old compound wall through FGHA line and the
property which lies to the east of that compound wall is in the
possession of respondent and to the west is the property of
appellants. Learned Sub Judge also found that though there is
difference in the measurement and extent shown in Ext.B1 with
regard to item No.1 of plaint schedule property, that is the case
with item No.2 of the plaint schedule property also and the
middle measurement tallies with the plot as demarcated by the
Commissioner and therefore granted a decree for injunction
accepting Ext.C3 plan. It is challenged in the second appeal.
3. Learned counsel appearing for appellants was heard.
The argument of the learned counsel is that the right obtained
by respondent is the right which was available under Ext.B1 and
the property claimed by respondent is item No.1 of Ext.B1 and
the extent is only 12 cents and not 13 = cents as shown in
Ext.A10 and therefore respondent is not entitled to a decree for
injunction in respect of the larger extent. Learned counsel also
argued that FGHA is not the boundary line which separates the
property of respondent and appellants and that compound wall
was in existence even before Ext.B1 partition deed and item
No.2 of the plaint schedule property is inclusive of the property
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which lies to the east of that compound wall and therefore
respondent is not entitled to the decree granted by the courts
below.
4. On hearing the learned counsel, I do not find any
substantial question of law involved in the appeal. The suit
being one for injunction simplicitor, question is only whether
respondent established his possession of item No.1 of plaint
schedule property. True, identity of the property is also a
relevant aspect to be looked into. The property claimed by
respondent is item No.1 of Ext.B1 partition deed. The property
claimed by appellants which lies to the west of that property is
item No.2 of Ext.B1 partition deed. Learned Munsiff and learned
Sub Judge, on analyising the evidence, found that the properties
alloted as item No.1 and 2 of Ext.B1 partition deed cannot be
fixed with regard to the measurement shown therein as
admittedly there is a mistake in the measurements. It is in such
circumstances, first appellate court found that existence of a
compound wall in FGHA line is established indicative of
possession and existence of the bathroom and latrine which lies
to the east of compound wall within the property claimed by
appellants establish possession of that portion of the property by
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respondent. As rightly found by first appellate court even if
case of appellants that a compound wall FGHA as marked in
Ext.C3 plan was available even before Ext.B1 partition deed and
while dividing the property the compound wall does not form the
exact boundary of item No.1 and 2 of the properties covered
under Ext.B1, normally immediately after the partition the
compound wall would be demolished and new wall would be
constructed on the exact boundary of the property. The learned
Sub Judge also found that if in fact the property which lies
immediate to the east of that compound wall belongs to
appellants as claimed by them, they would not have permitted
respondent to construct a bathroom or latrine which admittedly
exist in that property. It is for these reasons, first appellate
court found that respondent is in possession of the plaint
schedule property which lies to the east of FGHA line. In such
circumstances, a decree for injunction was granted. I do not find
any reason to interfere with that decree. But as the dispute is
with regard to the the exact property covered under Ext.B1 and
the title to the property could be fixed only by identifying item
No.1 and 2 of the plaint schedule properties and that is not done,
it is made clear that the decision in this suit will not prevent
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appellants from seeking a decree based on title.
Appeal is dismissed in limine.
` M.SASIDHARAN NAMBIAR, JUDGE lgk/-