The High Court dismissed an appeal challenging the decree in a suit for recovery of possession and mandatory injunction, upholding the lower courts' finding that the defendant trespassed on the plaintiff's property.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937
RSA.No. 261 of 2015 (F)
----------------------(AGAINST THE JUDGMENT AND DECREE IN AS.NO.173/2011 OF II ADDITIONAL DISTRICT COURT, KOZHIKODE DATED 22-03-2013)
(AGAINST THE JUDGMENT IN OS.NO. 429/2009 OF PRINCIPAL MUNSIFF COURT-II, KOZHIKODE DATED 31-08-2011)
APPELLANT/APPELLANT/DEFENDANT:
KUNNATH SIVADASAN,
S/O.KARAPPUTTY, AGED 51 YEARS, BEYPORE AMSOM DESOM, KOZHIKODE TALUK.
BY ADVS.SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
RESPONDENT/RESPONDENT/PLAINTIFF:
ARIKKANATH SUNIL KUMAR, S/O.SUBRAMANIAN, AGED 52 YEARS, VRIDHASSERI PARAMBU, BEYPORE AMSOM, KOZHIKODE TALUK, KOZHIKODE-673 015.
BY ADV. SRI.SANTHARAM.P
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
R.S.A.NO.261/2015
APPENDIX
PETITIONER'S ANNEXURES:
| ANNEX A1 | COPY OF THE DISCHARGE SUMMARY FROM 9/2/2014 TO 15/2/2014 ISSUED FROM THE MIMS HOSPITAL. |
|---|---|
| ANNEX A2 | COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE ARYA VAIDYA |
| PHARMACY (COIMBATORE) LTD. DATED 6/3/2015. |
RESPONDENT'S ANNEXURES:
NIL
/TRUE COPY/
P.S.TO JUDGE
sts
P.B.SURESH KUMAR, J.
R.S.A. No.261 of 2015
Dated 21st January, 2016.
J U D G M E N T
The defendant in a suit for recovery of possession and injunction, both prohibitory and mandatory, is the appellant in this second appeal.
RSA 261 of 2015
2
schedule property to his property. The plaintiff, therefore, claimed a decree for recovery of possession of the plaint B schedule property and also a decree for mandatory injunction to restore the plaint A schedule property to its original position by removing the compound wall constructed by the defendant. A decree of permanent prohibitory injunction restraining the defendant from trespassing into the plaint A schedule property was also sought. The defendant resisted the suit. The contention taken by the defendant in the written statement was that the property shown as the plaint B schedule in the plaint is part of his property which lies on the east of the plaint A schedule property. At the instance of the plaintiff, an Advocate Commissioner was deputed by the trial court to identify the suit properties. Exts.C1 and C2 are the report and plan submitted by the Advocate Commissioner appointed in the suit. The trial court, relying on Ext.C1 report and C2 plan, found that the plaint B schedule property is part of the plaint A schedule property covered by Ext.A1 sale deed. The trial court also found that the defendant has trespassed into the plaint B
RSA 261 of 2015
3
schedule property and enclosed the same with his property on its east by constructing a compound wall. On the said findings, the trial court decreed the suit permitting the plaintiff to recover possession of the plaint B schedule property from the defendant. A decree of mandatory injunction directing the defendant to restore the plaint A schedule property to its original position by demolishing the compound wall constructed by him was also granted. The defendant who is aggrieved by the said decision of the trial court has challenged the decision in appeal. The appellate court, on a reappraisal of the materials on record, confirmed the decision of the trial court. The defendant, who is aggrieved by the concurrent decisions against him has thus come up in this second appeal.
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Commissioner appointed in the suit found that the property of the plaintiff is having specific boundaries on its north, west and south. As such, the Commissioner located and identified the property obtained by the plaintiff as per Ext.A1 based on the side measurements shown in Ext.A1. Further, the Commissioner appointed in the suit noticed that the defendant's property lies at a height of about 3 feet from the property of the plaintiff and that there was an attempt on the part of the defendant to fill up the plaint B schedule property to raise its level upto the level of the property of the defendant. The defendant who asserted that the plaint B schedule property located by the Commissioner as part of the plaint A schedule property is part of his property, has neither produced his title deed before court nor took steps to establish the said fact. As such, when there is nothing on record to indicate that the defendant is the owner of the property located as the plaint B schedule property by the Commissioner, the courts below cannot be faulted for having accepted Ext.C1 report and Ext.C2 plan submitted by the Advocate Commissioner. In the circumstances, there is
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absolutely no illegality in the decisions impugned in the second appeal. The second appeal is devoid of merits and the same is accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs
(true copy)
2 issues framed by the court
Whether the conviction against the appellant was sustainable.
Whether the impugned judgment and decree in the suit for recovery of possession and injunction were correct.
KUNNATH SIVADASAN
ARIKKANATH SUNIL KUMAR
P.B. SURESH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
