MANUEL SONS Vs. PATTOLATH MAMMEDKOYA

JUDGEMENT

(1.) DEFENDANTS in O.S.439 of 1989 on the file of Munsiff Court, Kozhikode-II are the appellants. Respondent is the plaintiff. Respondent instituted the suit seeking a decree for recovery of possession and prohibitory injunction contending that plaint A and B schedule properties belonged to him as per Ext.A1 assignment deed and Ext.A2 release deed and plaint B schedule property is part of plaint A schedule property which was trespassed upon by the defendants and they have no right over the same and therefore the wall constructed annexing a portion of plaint A schedule property is to be evicted and respondent is entitled to recover possession of the same on the strength of his title and the appellants are to be restrained by a permanent prohibitory injunction from further trespass. Appellants resisted the suit contending that description of plaint B schedule property is not correct and plaint B schedule property cannot be identified from the description given in the plaint and plaint B schedule property is not part of plaint A schedule property and appellants are constructing the building only in the property belonging to them and there was no trespass and therefore the suit is to be dismissed. Subsequently, an additional written statement was filed contending that plaint A schedule property is a karaima house and the land in which it is situate is comprised in T.S.No.17-5-117 and respondent has title only to that property and the property of appellants is in T.S.17-5-119/3 and respondents have no right or title to that property.

(2.) LEARNED Munsiff originally dismissed the suit and respondent challenged the judgment before Sub Court, Kozhikode as A.S.91 of 1995. LEARNED Sub Judge found that the property of the respondent is in Survey No.119/3 and the property of appellants is in Survey No.135/2A and the dispute is with regard to the actual survey boundary separating the properties and the Commissioner in Ext.C1 report or C2 and C4 plans did not properly identify the property and therefore set aside the judgment of the trial court and remanded the suit for fresh disposal granting opportunity to take out a fresh commission to fix the identity of the property of the respondent in R.S.119/3 providing that if appellants are in possession of any portion of that property, respondent is entitled to recover possession of the same. Subsequent to the remand, a Commissioner was appointed and the Commissioner submitted Ext.C5 report, Exts.C6 and C7 plans along with Ext.C8 plan prepared by the Town Surveyor. No objection was filed to the said identification, demarcation or the identity of the properties shown in Ext.C6 to C8 plan. As per Exts.C5 to C8 report and plans, appellants are in possession of the properties in T.S.135/2A and T.S.135/2C which lies to the south of the property in R.S.119/3 and though as per the documents appellants are only entitled to 93 cents, they are now in possession of 97 cents. It was also found that though under Ext.A1 and A2, respondent is entitled to 3 cents of land, the property now in his possession is only 2.25 cents. It was also reported that a wall has been constructed enclosing a small portion of the property in R.S.119/3 by the appellants and that encroached portion is in R.S.119/3. The Commissioner has demarcated that encroached portion in Ext.C7 plan. Subsequent to the filing of Ext.C5 to C8, respondent got the plaint amended and the description of plaint B schedule property is made as shown by the Commissioner in Ext.C7 plan. No oral evidence was adduced subsequent to the remand. LEARNED Munsiff on the evidence found that the northern wall of the properties in R.S.135/2A and 135/2C was constructed enclosing a small strip of land having a width of 9 inches and length of 22.75 feet and that encroached portion is in R.S.119/3. LEARNED Munsiff also found that the property of the respondent is in R.S.119/3 while that of the appellants is in R.S.No.135/2A and 135/2C. LEARNED Munsiff therefore found that plaint B schedule property forms part of plaint A schedule property and respondent has title to the property and he is entitled to recover possession of the same on the strength of title. The suit was decreed. Appellants challenged the judgment before Sub Court, Kozhikode in A.S.No.12 of 2000. LEARNED Sub Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.

(3.) LEARNED counsel appearing for the respondent pointed out that even though the remand was for specific purpose of identifying the demarcating boundary between R.S.119/3 which lies to north and R.S.135/2A and 2C which lie to the south and the Commissioner identified the property with the assistance of Surveyor and submitted Ext.C5 to C8 report and plans, no objection was filed to the identification or the correctness of the plan and it is therefore argued that when the Commissioner has identified the properties and found that a small strip of land, which lies immediately to the north of the southern boundary of plaint A schedule property was encroached upon by the appellants by constructing a wall and it is found that the said wall is within R.S.119/3, the decree granted is perfectly legal and correct.