Shorn off unnecessary details, the facts essential for the disposal of this appeal are as follows:
The plaintiff owns property in Re.Sy. No.171 of Panangad Village. He put up a building therein. He was issued with a notice by the respondents pointing out that he had encroached into puramboke land and put up construction and he was called upon to demolish the same. That prompted the plaintiff to lay the suit when proceedings under the Kerala Land Conservancy Act were initiated by the respondents.
2. The defendants contended that the portion of the property which is alleged to have been encroached by the plaintiff is in Re.Sy. No. 32 in which admittedly going by the title deed of the plaintiff he has no extent of land. Even assuming that there was construction with the permission of the local authority, that cannot rectify the encroachment or enable the plaintiff to claim the property as his own. They thus defended the suit.
3. Issues were framed and parties went to trial. The plaintiff had Exts. A1 to A16 marked and Exts. B1 to B5 were marked from the side of the defendants. Exts.C1 and C2 are the commission report and plan. Ext.X1 is the file.
4. On an appreciation of the evidence in the case both the courts below found that the plaintiff has no property in Re.Sy. No. 32 and his property is confined in Re.Sy. No.171 and therefore dismissed the suit. The appellate court confirmed the same.
5. In this Second Appeal, learned counsel appearing for the appellant pointed out that the courts below were not justified in dismissing the suit and the evidence has not been properly appreciated. It was further contended that at any rate even assuming that there is an encroachment that can be only with respect to 3.21 cents in Re.Sy. No. 32 and cannot take in an extent of 3.8 cents as per the notice issued by the respondents.
6. Learned Government Pleader on the other hand contended that whatever extent of property in Re.Sy. No.32 must be treated as puramboke land and admittedly the title of the plaintiff did not take in any property in Re.Sy. No. 32.
7. Both the courts below have found that the plaintiff is in possession of 3.21 cents of property in Re.Sy. No.
32. The courts below after an evaluation of the evidence have come to the conclusion that the plaintiff had no manner of right over any extent of property in Re.Sy. No.32 and his right, title and interest remain confined to the property comprised in Re.Sy. No.171 of the same Village. The action initiated by the respondents were found to be justified.
8. After going through the judgments of the courts below, there is no justification to take a different view.
However, the appellant may have a grievance when he says that he was slapped with a notice saying that he had encroached into 3.8 cents of property, while the commission report and the plan namely Exts.C1 and C2 show that the extent of encroachment is only 3.21 cents.
9. There is nothing to indicate that either side has filed objection to the commission report and there is nothing to show that the identification of the property by the commissioner is erroneous. The commission report has been accepted by the courts below. The extent of property that is treated as puramboke in Re.Sy. No.32 found to be in the possession of the plaintiff has an extent of 3.21 cents.
10. It is only just and proper that the alleged encroachment by the plaintiff over the puramboke property is confined to the extent as determined by the Commissioner.
The appeal stands dismissed with the observation that the respondents are entitled to proceed against the appellant only in respect of 3.21 cents comprised in Re.Sy. No. 32 as found by the Commissioner as per Exts.C1 and C2.
P. BHAVADASAN, JUDGE sb.