SAROJINI AMMA Vs. P VASUDEVAN ACHARY

JUDGEMENT

(1.) LEGAL heirs of the plaintiff in O.S.47/1993 on the file of Munsiff-Magistrate Court, Sasthamcotta are the appellants. Respondents are the defendants. Plaintiff instituted the suit against defendants 1 and 2 seeking a decree for permanent prohibitory injunction alleging that the plaint schedule property viz, one acre and ten cents in Survey No.432/9 belongs to him and he has been in possession of the property and defendants have no right over the same and they attempted to construct a new way through the northern portion of the plaint schedule property, trespassing into the plaint schedule property and they have no right to do so and therefore they are to be restrained by a permanent prohibitory injunction. Along with the suit, plaintiff took out a commission and DW1, the Commissioner inspected the property on the same day and submitted Ext.C1 report. Subsequently, PW5 was appointed as the Commissioner and he identified the property with the help of DW2, Taluk Surveyor and submitted Ext.C2 report and C2(a) plan. The second respondent contended that the suit was filed suppressing the existence of a way and the attempt of the plaintiff was to reduce the width of the way. It was contended that plaintiff has no right to reduce the width of the northern way and therefore plaintiff is not entitled to the decree sought for. Second defendant also filed a counter-claim and sought a decree for mandatory injunction to remove the construction made in the northern way causing reduction of its width, contending that the plaintiff had trespassed into the way and reduced its width. The Commissioner in Ext.C2(a) plan demarcated the property of the respondent in Survey No.215/15 as well as the property of the second respondent which lies to its west and the way which starts from the eastern panchayat road and proceed towards the west, reaching the house of second respondent and others. The Commissioner also found that as per the resurvey plan, the width of the way is not now available in the land as a portion of the way has been trespassed upon and made part of the property of the plaintiff. That encroached portion has been shown as plot A in Ext.C2(a) plan. The Commissioner also found that on the northern side of the way also there was an encroachment by the northern owner and that encroached portion is marked as plot 'B'.

(2.) LEARNED Munsiff did not rely on Ext.C2(a) plan and finding that admittedly there exists a way to the north of the plaint schedule property, held that the plaintiff is not entitled to the decree sought for. LEARNED Munsiff also found that the second defendant is not entitled to a decree in the counter claim, but in view of the existence of the way directed that the way shall not be reduced or encroached upon. The plaintiff did not file an appeal.

(3.) LEARNED counsel appearing for appellants and the second respondent were heard.