KESAVAN JAYANTHI Vs. AJAYAKUMAR, S/O.APPU

JUDGEMENT

(1.) THIS appeal is filed by the plaintiffs 1 and 2 in O.S.No.288 of 1995 on the file of the Sub Court, Attingal. Respondents 1 to 4 herein were the defendants 1 to 3 and additional 4th defendant in that suit. During the pendency of this appeal, the first respondent died and his legal representatives are impleaded as additional respondents 5 to 7.

(2.) THE averments in the plaint is briefly as follows : The plaintiffs are the sisters of the third defendant. Plaint A schedule properties are the properties set apart to the share of plaintiffs in the partition effected in their family in 1971. The properties allotted to the share of the first plaintiff is shown as plaint B schedule and those allotted to second plaintiff are plaint C and D schedule properties. The second plaintiff assigned the plaint D schedule property in 1979 to first defendant. Plaint D schedule property is part of plaint C schedule and that includes only the vacant land. The first defendant assigned the properties obtained by him to defendants 2 and 3. Defendants 2 and 3 constructed a house in Plaint D schedule property and started residing therein. The plaintiffs suspected that a portion of the house built by defendants 2 and 3 has projected into plaint B and C schedule properties. The plaintiffs also suspected that the building would again be extended encroaching upon plaint B and C schedule properties. The 4th defendant with the assistance of the other defendants had encroached upon the plaint schedule properties and reduced 2 cents to his possession and that portion is shown as plaint E schedule property. When the defendants tried to extend the house built by them to plaint B and C schedule properties, the second plaintiff along with her husband reached the spot and obstructed. But the defendants threatened that they would extend their house to plaint B and C schedule properties. Hence it is to be declared that the plaintiffs have got title and possession of plaint B and C schedule properties and the defendants may be directed by a mandatory injunction to demolish the portion of the building put up by them in plaint B and C schedule properties and that portion may be ordered to be surrendered to the plaintiffs. The 4th defendant may be directed to surrender possession of plaint E schedule property to plaintiffs. The defendants may also be restrained by a prohibitory injunction from making further extension of the building into plaint B and C schedule properties. The eastern boundary of plaint B schedule property and southern boundary of plaint C schedule property is to be fixed.

(3.) THE 4th defendant filed written statement stating as follows : The description of E schedule property is wrong and the plaintiffs have no title or possession over plaint E schedule property which is in exclusive possession and enjoyment of this defendant. The extent of the properties shown in the plaint A schedule is wrong. At the time of partition, the parties had included the properties in the schedule in which they have no right or possession. This defendant's property is separated from the properties of other defendants. This defendant has not trespassed into any portion of the plaintiffs' property. If any portion of the plaintiffs' property is included within the boundary of this defendant's properties, their right is lost by adverse possession and limitation. This defendant is not intending to make additional structures in his properties. The suit is liable to be dismissed.