BHAVANI, D/O. KOCHUPARAVATHI, CHARUVILAKATHU VEEDU, AMBALATHARA CHOOZHAMPALA MUKKOLA, TRIVANDRUM (DIED) AND ORS. Vs. SOMASEKHARAN, S/O. DAMODHARAN, THUSHARA, CHOOZHAMPALA, MUKKOLA P.O. TRIVANDRUM,

JUDGEMENT

(1.) THIS Second Appeal is brought by the defendants from the judgment and decree of learned Second Additional District Judge, Thiruvananthapuram in A.S. No. 32 of 1997 confirming the judgment and decree of learned Third Additional Munsiff, Thiruvananthapuram in O.S. No. 3212 of 1989. Respondents are the legal representatives of the late Padmanabhan Velayudhan. Appellants and the deceased first defendant are the legal representatives of late Kochuparvathy, sister of Padmanabhan Velayudhan. The said Padmanabhan Velayudhan, Parameswaran, Krishnan, Kochappi and Kochuparvathy belonging to the same family effected partition of their family properties (as per Ext.B1, partition deed No. 828 of 1109ME) as per which the 1.75 acres in Sy.No.1010 and other items belonging to the family were partitioned among them. Padmanabhan Velayudhan was allotted the A schedule, Parameswaran was allotted the B schedule, Krishnan was allotted the C schedule, Kochappi was allotted the D schedule and Kochuparvathy was allotted the E schedule items in Ext.B1. The said items were acquired by the family as per the documents referred in Ext.B1, partition deed. Kochuparvathy was allowed to stay in the gate house (padippura) of the building that existed in the D schedule to Ext.B1 allotted to Kochappi. It was directed that after one year, Kochu Parvathy shall construct a house of her own and vacate the said gate house (padippura). As regards the puthuval land situated on the east of the A and E schedules to Ext.B1, certain directions were made in the partition deed. A 12 links wide way was provided along the middle of the said properties for access to the respective sharers from the road on the western side of Ext.B1, property.

(2.) THE case of the respondents who claim under Padmanabhan Velayudhan to whom the A schedule items in Ext.B1 was allotted, is that as per permission granted (vide Ext.B1, partition deed) Kochuparvathy stayed in the gate house (padippura) in the D schedule in Ext.B1 for one year and thereafter, with the permission of Padmanabhan Velayudhan, was staying in the cudjan thatched house situated in the puthuval land towards east of the E schedule of Ext.B1 and south of the way (12 links wide way through the middle of the property). In the meantime, Padmanabhan Velayudhan obtained assignment of the entire puthuval land (comprised in Sy.No.1010/63 on the east of A and E schedules of Ext.B1 (42 cents) and he thus became the owner in possession of that puthuval land. The puthuval land came to the ownership and possession of the respondents as legal representatives of the late Padmanabhan Velayudhan. The puthuval land comprised in Sy. No. 1010/63 situated on the east of E schedule of Ext.B1 and south of the way is the 25 cents described as the plaint A schedule. The building situated in the plaint A schedule bearing door No. CP4/83 is the plaint B schedule. The E schedule allotted to Kochuparvathy in Ex. B1, partition deed is the plaint C schedule. Respondents allege that the appellants and the deceased 1st defendant who claim under Kochuparvathy constructed a building in the E schedule of Ext.B1 (plaint C schedule) encroaching into the plaint A schedule (25 cents of puthuval land). They claimed that they have terminated permission granted to the appellants and the deceased 1 defendant, the legal representatives of the late Kochuparvathy to stay in the plaint B schedule building. As they did not vacate the plaint B schedule building, respondents filed the suit for a declaration of their title over plaint A and B schedules - the 25 cents of puthuval land in Sy. No. 1010/63 and building No. CP4/83 situated therein, prohibitory injunction against appellants interfering with their possession of the plaint A schedule, mandatory injunction to direct the appellants and the deceased 1st defendant to vacate the plaint B schedule and remove that part of the building in the plaint C schedule which encroached into the plaint A schedule, prohibitory injunction against putting up structures in the plaint A schedule and for fixation of the boundary between the plaint A schedule and the plaint C schedule (E schedule of Ext.B1).

(3.) LEARNED Munsiff held that Padmanabhan Velayudhan got title to the plaint A schedule as per Ext.A4, patta, that there is no serious challenge to that assignment, there is no evidence to show that Kochuparvathy had constructed the plaint B schedule building and hence it must be accepted that Padmanabhan Velayudhan constructed the plaint B schedule building in the plaint A schedule. It was further held that the construction made by the appellants in the plaint C schedule (E schedule of Ext.B1) trespassed into a portion of plaint A schedule. Accordingly respondents were given reliefs as prayed for. That judgment and decree were challenged before the first appellate court but only to be confirmed. Hence this Second Appeal.