The defendant is in appeal. 2. Respondents are the second plaintiff and legal representatives of the deceased first plaintiff in the original suit.
3. The plaintiffs approached the trial court for a decree declaring their title to Plaint-B schedule property and for recovery of the same from the defendant. There was yet another prayer for a mandatory injunction against the defendant to demolish the unauthorised construction put up in Plaint-B schedule property and also for a permanent prohibitory injunction restraining the defendant from entering into the plaint-A schedule property and causing damages to the said property.
4. The plaintiffs' case is as follows:
Plaint-A schedule property was obtained by the plaintiffs by way of an Assignment Deed of 1122 M.E. and on the basis of two pattas in the year 1966. The properties are in Re.Sy No.15/8 of Block No.39 of Puthencruz village. The plaintiffs were in possession of 1 hector 87.24 Ares of property comprised in the aforesaid survey number. Out of this property, they have assigned 40 cents on the north eastern side to a mosque. Seventy cents of property on the southern side was assigned to Puthencruz Panchayath. Remaining properties are described as plaint-A schedule property. The appellant's/ defendant's property is on the south western side of the plaint-A schedule property. The appellant/defendant had started construction of a building in his property. The plaintiffs are residing two kms. away from the suit property. In the year 1985, the defendant tried to encroach upon the plaint schedule property and accordingly, the plaintiffs filed O.S.No.98/1985 before the Munsiff's Court, Ernakulam. The suit was compromised through a mediation. The property was measured by a surveyor and the boundaries were fixed. The appellant/ defendant with an intention to trespass upon the plaintiffs' property dug a trench for construction of the foundation of a building in his property. This was done trespassing upon the plaintiffs' property. When the plaintiffs came to know about this, they filed two complaints before the local police, Karimugal. The police interfered and objected the defendant from trespassing upon the plaint schedule property. However, the appellant/defendant again tried to trespass upon the plaintiffs' property and moved the old survey stones from its original position. The appellant/ defendant has constructed the building protruding the compound wall as well as the sunshade encroaching upon the plaint-A schedule property. The portion of the property so trespassed upon the appellant/defendant is described as B-schedule property. It is with this background, the petitioner has approached the trial court.
5. The appellant/defendant, who resisted the suit, contended as follows:
The defendant has not trespassed into any portion of the plaint-A schedule property. The previous suit was a false suit. After the measurement conducted by the surveyor, it was found that there was no encroachment and the suit was compromised. The property in possession of the defendant belongs to his father. His father is no more. Apart from the appellant/defendant, his mother, brothers and sisters are having right over the property and therefore, the suit without impleading the defendant's mother and siblings is bad for non-jointer of necessary parties. Plaint-B schedule property was never in the possession of the plaintiffs. The defendant's mother's uncle by name Madhavan Nair purchased 70 cents of property which is B-schedule property as per document No.741/1121 ME. Out of that 50 cents was sold to Achuthan Pillai and a portion of the property was taken for formation of a road. Remaining was 20 cents and the same was in possession of the father of the appellant/ defendant. After the death of the father, the property devolved upon the legal heirs. The trench was dug by the appellant/defendant in his property. The appellant/ defendant has not trespassed into any portion of the property owned by the plaintiffs. The plaintiffs have no title over the entire suit property. Even if it is found that the plaintiffs are having title to B schedule property, the same is lost due to long uninterpreted adverse possession of the defendant.
6. The trial court, after raising proper issues for trial, permitted both sides to adduce evidence. At the trial, Pws.1 and 2 as well as Dws.1 to 3 were examined. Exts.A1 to A5 as well as Exts.B1 to B3 and C1 to C2 series were marked.
7. The trial court, after considering the evidence, found that the plaintiffs are entitled to decree for declaration of title to Plaint-A schedule property and also for recovery of possession of B-schedule property and granted a decree. The plaintiffs took the matter in appeal before the lower appellate court, but without success. It is with this background, the appellant/defendant has come up before this Court.
8. Arguments have been heard.
9. The trial court granted a decree as prayed for on the basis of Ext.C2 commission report and Ext.C2(a) plan.
One of the argument advanced by the learned counsel for the appellant was that the property was not properly measured by the commissioner who gave evidence as PW2. It was pointed out by the learned counsel for the appellant that PW2, while cross examined, has admitted that while the properties were measured, the measurements of the property of the appellant were not taken into account. It was argued that without measuring the property of the appellant as well as the respondents, the boundary between the properties cannot be fixed with certainty.
10. In answer to the said submission, the learned counsel for the respondent would submit that what was submitted by PW2 was that he has not gone through the description of the property of the appellant. It was also pointed out that the Commissioner has clearly deposed that the property of the appellant was also measured.
11. The courts below found that the measurement in Ext.C2(a) plan tallied with Ext.B1(a) which is the survey plan in respect of the property belonging to the appellant.
The courts below, on appreciation of evidence, found that all the measurements made mention of by the Commissioner by Ext.C2(a) plan could be correlated with the measurement of Ext.B1(a). There was a previous suit as O.S.No.98 of 1985. In that suit, the dispute was with regard to the northern boundary. The dispute was with regard to the boundary between the plot comprised in Sy.No.15/6 belonging to the appellant and the plot comprised in Sy.No.15/8 belonging to the respondent. The said suit was compromised. After the suit, there was a police complaint which was settled at the mediation of police after paying Rs.3000/- to the appellant/defendant. Ext.B3 is the compromise so entered into between the parties.
12. In the present case, the alleged area of trespass is 5 sq.metres wherein the appellant has put up a compound wall as well as the sunshade of the building. The sunshade of the appellant's building is protruding to the aforesaid 5 sq.metrs; so found the Commissioner who measured the properties.
13. As the findings of the courts below based on Ext.C2 report and C2(a) plan are questions of fact, interference by this Court in a second appeal is little. Therefore, this Court is of the view that the appellant is not entitled to succeed.
In the result, the appeal fails and accordingly, dismissed.
Sd/-A.V.RAMAKRISHNA PILLAI JUDGE css/ true copy P.S.TO JUDGE A.V.RAMAKRISHNA PILLAI,J.
RSA NO.432 OF 2003 JUDGMENT 12.12.2014