IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 284 of 2008()
1. JOSEPHINE MANUEL D/O LATE JOSEPH MANUEL,
... Petitioner
Vs
1. PADMINI, W/O RAJESH, LAKHS VILASAM,
... Respondent
2. RAMESH, LAKSHMI VILASAM, PAYYAPPILLY
3. C.P.. NARAYANAN, AUTO DRIVER, CHATHIKKAD
4. P.J.JOHN, S/O P.C.JOSEPH @ KOCHUPAPPU,
For Petitioner :SRI.P.V.JAYACHANDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :27/03/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
R.S.A NO. 284 OF 2008
===========================
Dated this the 27th day of March, 2008
JUDGMENT
Plaintiff in O.S.No.2024/2001 on the file of
Munsiff Court, Ernakulam is the appellant.
Defendants are the respondents. The suit was filed
for a permanent prohibitory injunction restraining
respondents from trespassing into the plaint A
schedule property or destroying the western
boundary of the property and also bringing or
parking any vehicle into the plaint A schedule
property and also to allow appellant to construct
the boundary wall separating plaint A schedule
property from plaint B and C schedule properties
after fixing the boundary. The case of the
appellant was that under Ext.A1 sale deed, plaint A
schedule property was purchased by the appellant on
24.1.1980 and under the sale deed she obtained 23
cents in survey No.938/2 and 939/2 inclusive of the
excess land in the possession of assignors Radha
R.S.A.284/2008 2
Bai and Gopala Krishna Mallan and plaint B
schedule property belongs to respondents 1 and 2
and plaint C schedule property to third respondent
and plaint D schedule property to fourth respondent
and respondents have no right to trespass into the
plaint A schedule property or to encroach upon any
portion of the property and they are to be
restrained by a permanent prohibitory injunction.
It was also contended that as there is dispute with
regard to the boundaries separating plaint A
schedule property from the remaining plaint B C
and D schedule properties of respondents,
boundaries are to be fixed. Respondents resisted
the suit contending that appellant does not have
right over 23 cents of the property and she
obtained only 20 cents of the property and
appellant is not entitled to a decree in respect of
the additional 3 cents of the property and is also
not entitled to fix the boundary inclusive of the
additional 3 cents.
2. Learned Munsiff on the evidence of Pw1,
Dws.1 to 6, Exts.A1 to A6, B1, C1 and C1(a)
dismissed the suit holding that though under
R.S.A.284/2008 3
Ext.A1 appellant obtained 23 cents of the property
under Ext.A2, the assignors of appellant obtained
only 20 cents and Ext.A2 does not show that any
excess land that what was covered under Ext.A2 was
obtained by the assignors of appellant and
appellant is not entitled to claim 23 cents as
shown in plaint A schedule property and she is also
not entitled to get the boundary fixed in respect
of 23 cents. The suit was dismissed. Appellant
challenged the judgment before District Court in
A.S.362/2005. Learned District Judge on
reappreciation of evidence confirmed the findings
of learned Munsiff and dismissed the suit. It is
challenged in the second appeal.
3. Learned counsel appearing for appellant was
heard.
4. The argument of learned counsel is that as
the suit is one for fixation of the boundary when
it is found that Commissioner has not properly
fixed the boundaries in Ext.C1 plan, after proper
measurement, the suit should not have been
dismissed and instead Commissioner should have
been directed to identify the property correctly
R.S.A.284/2008 4
and demarcate the same and therefore judgment of
the courts below is not sustainable.
5. on hearing the learned counsel, I do not
find that any substantial question of law is
involved in the appeal.
6. The right and possession of the appellant
to the property covered under Ext.A1, to the extent
of the property covered under Ext.A2, is not
disputed. What is contended by appellant was that
though under Ext.A2, her assignors Radha Bai and
Gopala Krishna Mallan obtained only 20 cents they
were in possession of 3 cents of excess land which
was transferred in favour of the appellant under
Ext.A1 and appellant is entitled to get a decree in
respect of the additional 3 cents. As rightly
found by courts below appellant is only entitled to
get the boundary fixed in respect of the property
belonging to her. If appellant has no title to the
additional extent of the property, she is not
entitled to get the boundaries fixed including the
excess land and to include that portion of the
property within her property. Though Ext.A1 shows
that property transferred thereunder is 23 cents
R.S.A.284/2008 5
inclusive of 20 cents covered under Ext.A2 and
excess land, Ext.A2 the assignment deed whereunder
the assignors obtained title to the property
transferred under Ext.A1 shows that they obtained
title to only 20 cents. There is no evidence to
prove the assignors of the appellant obtained title
to any additional extent than the property covered
under Ext.A2, Therefore eventhough Ext.A1 shows a
larger extent than what is covered under Ext.A2
appellant cannot claim title to the excess land.
As rightly found by courts below appellant cannot
get the boundary fixed in respect of the additional
3 cents of the property or a decree for injunction.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
———————
W.P.(C).NO. /06
———————
JUDGMENT
SEPTEMBER,2006