AKHILA KERALA DHEEVARA SABHA Vs. ROSAMMA

JUDGEMENT

(1.) The defendants in a suit for fixation of boundary, mandatory injunction, and perpetual injunction, who have lost their cause before the trial court and the First Appellate Court, have filed this appeal. Even though notice was ordered on the petition for condonation of delay and the delay was condoned, the appeal has not so far been formally admitted after framing any substantial question of law. Since the appeal has been pending for the past three years, and the respondents have also appeared, I am proceeding to hear the appeal finally on the questions of law formulated in the memorandum of appeal.

(2.) The plaintiffs trace their title to a Will executed on 19/11/1968 by the grandfather of the original plaintiff. The original plaintiff died pending suit. The grandfather died on 18/7/1974, six years after the execution of the Will. It is stated that the properties of an extent of 79 cents, were purchased by the great grandfather of the plaintiff, in a court sale. The plaint schedule property of an extent of 39.5 cents is situated on the northern side of the entire extent. The plaintiff's predecessors released the balance of 39.5 cents on the southern side to the previous jenmi. As the property on the southern side had been abandoned for some time, the local residents installed structures like chitrakoodam and started offering prayers there. It is stated that some workers of the 1st defendant had reinstalled the idols in the structures that had been put up by the local residents, which was completed in December 2003. The plaintiffs contend that while making the said constructions, the defendants had encroached into the plaint schedule property, which was the northern half of the 79 cents above mentioned. It is stated that when the plaintiffs objected to the encroachment, the defendants undertook to remove the same after a temple is built in the 39.5 cents on the southern side of the plaint schedule property. It is stated that the temple was inaugurated in December 2003 and thereafter the plaintiffs demanded in writing to remove the structures illegally put up. It is contended that the plaint schedule property is bounded by a lake on the east, a Panchayat road on the west, and a fencing on the north and that the defendants are taking advantage of the fact that there is no boundary demarcation on the southern side. The suit was filed in the above circumstances.

(3.) The defendants filed a written statement contending that the original plaintiff was never in possession and enjoyment of the plaint schedule property, that the plaint schedule property and the property on the southern side are lying as a single plot, that the entire properties including the plaint schedule had devolved on the 1st defendant through a gift deed No.6484/76 and a Trust Deed No.5971/77, that right if any of the plaintiffs have been lost by adverse possession and limitation and that the plaintiffs are not entitled to the reliefs prayed for.