THOMAS; ELSY THOMAS Vs. JOSEPH S/O PAPPU

JUDGEMENT

(1.) The Regular Second Appeal is directed against the judgment and decree in A.S. 44/2006 on the file of the Sub judge Kochi which arises from the Judgment and decree in O.S. No. 380/1996 on the file of Additional Munsiff's Court, Kochi. The suit was filed by the respondent as plaintiff for recovery of possession on the strength of title and for permanent prohibitory injunction against trespass . The trial court decreed the suit by ordering recovery of possession of property shown as D in triangular shape in Ext.C2 (a) from the defendants and passed a permanent prohibitory injunction restraining the defendants from making any further trespass or encroachment into the plaint A Schedule property. The judgment and decree passed by the trial court was confirmed by the lower appellate court Hence this Second appeal. The defendants in the suit are the appellants herein. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit.

(2.) The plaintiff is the absolute owner in possession of the plaint A schedule property. According to the plaintiff the defendants are residing on the eastern side of the plaint A schedule property. The defendants are the owners of land having an extent of 2.280 Cents on the eastern side of the plaint 'A' schedule property. The 2nd defendant purchased the said property as per Ext.A2 sale deed 1618 of 1989 from one Kochouseph who is the brother of the plaintiff. There was a previous suit (ie. O.S. 144/1992 before the Munsiff Court, Kochi) between the parties . The matter was settled thereafter. According to the plaintiff then the defendants had trespassed into the plaint A schedule property. It is alleged by the plaintiff that the defendants removed the trespassed portion consisting fence, that the defendants under the guise of renovation of the shed and fence again trespassed into the plaint A schedule property by encroaching and extending the western portion of the shed by about 2 = feets inside the eastern side of the plaint A schedule property. The plaintiff also detailed the trespassed portion in the plaint as C and D schedules. When the plaintiff demanded to removal of encroachment the defendants declined to do it. The prayer in the earlier suit i.e O.S. 144/1992 was for mandatory injunction. Hence the plaintiff was constrained to file O.S. 380/1996 for recovery of possession of plaint A and D schedule properties on the strength of title with direction to the defendants to remove the trespass and also for permanent prohibitory injunction restraining them from further trespass. Against the judgment and decree in O.S. 144/1992 the defendants preferred appeal as A.S. 98/2003 before the Principal Sub,Judge Kochi. The lower appellate court remanded O.S. 144/1992 for fresh disposal with direction to appoint a fresh Commissioner to measure out the properties on the basis of the title deeds.

(3.) DW3 is the new Commissioner appointed pursuant to the remand order. The Commissioner measured and ascertained the boundaries of the plaintiff and 2nd defendant on the basis of their title documents i.e Exts. A1 and A2 respectively. On the basis of the commissioner's report and plan [Ext.C2 and C2(a)] the trial court held that the boundary shown in Ext.A1 A2 and B1 tally with Ext.C2(a). It has come out in evidence of the Taluk Surveyor that Ext.A1(a) and B6(a) sketches spotted four original survey stones available around the sub division No. 85/3 of Nayarambalam village and the position of the said survey stones were cross-checked and found to be correct. Ext.C2 report and Ext.C2(a) plan reveals that the Commissioner ascertained that the southern boundary of the plots A.C and D plot in Ext.C2(a) is the property of Parambadi Kunjankutti Bhaskaran and the southern boundary of the property of the plaintiff and 2nd defendant was in a straight line in east-west direction.