M.I. GEORGE Vs. AUGUSTHY, S/O FRENCHU

JUDGEMENT

(1.) THE defendants before the Court below is in appeal against concurrent findings. The plaintiff purchased 2 ares and 77sq.metre (6.840 cents) of property, scheduled in the plaint, by Ext.A1, in the year 1985, for providing an access into the plaintiff's house situated to the north of the said property. Plaint schedule property, is a pathway having 18 links starting from the south and proceeds to the north to the plaintiff's house from the Thodupuzha-Manakadu public road, lying east-west. The defendants purchased 6 cents of property lying to the west of the plaint schedule property. The eastern boundary of the defendants property is a portion of the plaint schedule pathway and the plaint schedule pathway extends further north and south beyond the defendant's properties.

(2.) APPREHENDING trespass into the plaint schedule property and destruction of the rubble foundation constructed by the plaintiff on the western boundary of the plaint schedule pathway; the plaintiff filed the suit seeking an injunction thereon. The defendants appeared and filed written statement contending that the plaintiff had filed an earlier suit wherein he had claimed title and possession of kayyala on the eastern boundary of the plaint schedule pathway and the Commissioner had excluded the said kayyala in measuring out the plaint schedule property in accordance with Ext.A1 title deed. It was the contention of the defendants that if such exclusion is avoided and the eastern kayyala is taken within the measurement of plaint schedule pathway, that would exclude the western kayyala and also some property to the east of the kayyala, which according the defendants; belong to them. 2. The plaintiff was examined as DW.1 and Ext. A1 title deed as also Exts. A2 and A3 being copy of the judgment in O.S 16/90 and the Commission report in the said suit. DW.2 was the Commissioner in O.S 16/90. On the side of the defendants DW.1, the first defendant was examined and Exts. B1 to B8 were marked. The plaintiff deposed in accordance with the plaint claim. The Commissioner in O.S 16/1990 was examined to prove that the eastern kayyala is only a boundary separating the plaint schedule pathway with the property on its east; i.e., the property owned by the defendants in O.S 16/90. The first defendant who was examined as DW.1 in his deposition claimed that, he had a pathway lying to the west of the plaint schedule property and that the site plan for the construction of the defendants building approved by the Municipality produced as Ext.B5 series would indicate such a pathway. This according to the defendant would prove that the kayyala belong to the defendant's property. Strangely, the defendant did not produce his title deed.

(3.) THE trial court found that the identification of the property made by the Commissioner was in tandem with the description of the property in Ext.A1 sale deed. The plaint schedule pathway was purchased in 1985 prior to the purchase of the defendants in 1987. Even in the earlier suit , it was found that the plaintiff's contention was not with respect to the title of the eastern kayyala; but the apprehension of destruction of the said kayyala by the owners of the property on the east of the plaint schedule pathway. The plaintiff had purchased the plaint schedule pathway from the owners on its eastern boundary. They were the defendants in O.S 16/90. It was the specific plea put forward by the plaintiff in the plaint as is evidenced by Ext.B1 that the eastern kayyala on the plaint schedule pathway was constructed together by the plaintiff and the defendants in O.S 16/90. He apprehended the destruction of the same and hence, filed the suit for injunction to restrain the defendants from causing damage. That suit was compromised and the decree is also produced in evidence. The trial court rightly found that, it cannot be said that the plaintiff claimed title over the eastern kayyala, going by the specific averments in the plaint, and the compromise arrived at, as evidenced by Ext.B2.