SUGUNAN Vs. SUDHESAN

JUDGEMENT

(1.) This appeal has been preferred under Sec. 100 r/w Order XLII Rule 1 of Civil Procedure Code by the respondent in A.S No.169 of 2009 on the file of the II Additional District Judge, Kollam, who is the plaintiff in OS.No.184 of 2004 on the file of the Munsiff Court, Paravoor, against the impugned judgment of the First Appellate Court, partly allowing the appeal.

(2.) For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.

(3.) The plaintiff is the younger brother of the defendant. Both of them obtained properties from their father. The plaint schedule property having an extent of 14.5 cents situates on the eastern side of the defendant's property, which he obtained as per Exhibit A1 assignment deed dtd. 2/4/1979. During the life time of their father, no well defined and demarcating boundary separating those properties was put up. While so, in the year 1989, the defendant constructed a residential building in his property. In 2004, the plaintiff filed the present suit for fixation of the western boundary of his property and for consequential injunction, as his attempt to measure the property for constructing a compound wall was obstructed and the existing survey stones were removed by the defendant. When the property was measured, it was found that a portion of the building having a width of 1.6 meters was encroaching into the plaint schedule property. According to the plaintiff, he was not aware of the above encroachment, which the defendant denied. According to the defendant, the building was constructed with the consent and acquiescence of the plaintiff. Application for incorporating the prayer for recovery of possession and mandatory injunction in respect of the encroached portion of the residential building filed at the belated stage was dismissed by the trial court. Even then, the trial court decreed the suit, allowing the plaintiff to put up the western boundary of the plaint schedule property and directed the defendant to demolish the encroached portion of his building, after moulding the relief. The trial court further ordered that, in case the defendant fails to demolish the encroached portion of the building, the plaintiff could get it demolished through the process of the court and to realise the expenses from the defendant and his assets. The defendant was also restrained from trespassing into the plaint schedule property, by a permanent prohibitory injunction.