Suberkutty vs Suresh Babu
2021 Latest Caselaw 3058 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                        PRESENT

         THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942

                   RSA.No.28 OF 2021

       AGAINST THE JUDGMENT & DECREE IN AS 21/2018
   DATED 12-08-2020 OF THE SUB COURT, KARUNAGAPPALLY

    OS.No.50/2013 OF MUNSIFF'S COURT, KARUNAGAPPALLY

APPELLANTS/APPELLANTS/DEFENDANTS 3 & 4:
      1    SUBERKUTTY,
           AGED 72 YEARS,
           S/O.MUHAMMED KUNJU,
           RESIDING AT KOCHAYYATHU VEEDU,
           PADANAYARKULANGARA VADAKKU MURI,
           KARUNAGAPPALLY VILLAGE, KOLLAM DISTRICT.
      2    SABEEDA,
           AGED 70 YEARS,
           W/O.SUBERKUTTY,
           RESIDING AT KOCHAYYATHU VEEDU,
           PADANAYARKULANGARA VADAKKU MURI,
           KARUNAGAPPALLY VILLAGE, KOLLAM DISTRICT.

           BY ADV.SRI.A.SHAFEEK (KAYAMKULAM)
RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1 & 2:
      1    SURESH BABU,
           S/O.KUMARAN,
           SURESH NIVAS,
           PANAYARKULANGARA VADAKKU MURI,
           KARUNAGAPPALLY VILLAGE, KARUNAGAPALLY TALUK,
           KOLLAM DISTRICT-690 519.
      2    KARUNAGAPALLY MUNICIPALITY,
           REPRESENTED BY ITS SECRETARY,
           MUNICIPAL OFFICE, KARUNAGAPPALLY,
           KOLLAM DISTRICT-690 519.
      3    THE HEALTH INSPECTOR,
           KARUNAGAPPALLY MUNICIPALITY,
           MUNICIPAL OFFICE, KARUNAGAPPALLY,
           KOLLAM DISTRICT-690 519.
     THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 22-01-2021, THE COURT ON 28-01-2021
DELIVERED THE FOLLOWING:
 R.S.A.No.28 of 2021


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                          JUDGMENT

The appellants are the defendants 3 and 4 and the

respondents are the 2nd plaintiff and defendants 1 and 2 in

O.S.No.50/2013 of the Munsiff's Court, Karunagappally

(hereinafter referred to as 'the trial court'). The 1 st

respondent filed the above suit for both mandatory and

permanent prohibitory injunctions. The appellants entered

appearance in the suit and resisted the contentions raised

by the 1st respondent and raised a counter claim against

the 1st respondent. The parties are hereinafter referred to

as the plaintiff and defendants according to their status in

the trial court unless otherwise stated.

2. The averments in brief are herein below:-

The plaintiff is the owner in possession of

the plaint A schedule property by virtue of sale deed

No.456/1976 of Karunagappally Sub Registrar's Office.

Plaint B schedule property lies on the southern side of R.S.A.No.28 of 2021

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plaint A schedule property. It belongs to the 3 rd and 4th

defendants. There is a compound wall separating plaint A

and B schedule properties. When the defendants

purchased plaint B schedule property, there were 15 years

old anjili, teak and jack fruit trees on the southern portion

of plaint A schedule property. The defendants 3 and 4 had

constructed a compound wall separating plaint A and B

schedule properties. Thereafter, a portion of the

compound wall was raised and a chimney was

constructed. Water from the roof of the kitchen used to

fall in the plaint A schedule property. The plaintiff had

demanded to the 3rd and 4th defendants to remove the

kitchen including the chimney. The defendants 3 and 4

filed complaints to the 1st defendant whereupon the Health

Inspector who is the 2nd defendant in the suit issued

notice dated 18.9.2012 directing the plaintiff to cut and

remove the branches of the trees protruding into the 3 rd R.S.A.No.28 of 2021

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defendant's compound and to report compliance within

seven days. It is further alleged that the defendants 1 and

2 under the influence of the defendants 3 and 4 insisted

the plaintiff to give evidence on 12.2.2013. Hence the suit

is filed to restrain the defendants by way of permanent

prohibitory injunction from proceeding with further and

directing them to remove the illegally constructed

chimney and kitchen on the wall separating the southern

boundary by a decree of mandatory injunction so as to

restore the compound wall in its original position.

3. The defendants 1 and 2 remained exparte in the

suit. The defendants 3 and 4 filed written statement

contending that when the defendants 3 and 4 purchased

the plaint B schedule property/counter claim A schedule

property, there were no anjili, teak, jack fruit tree on the

southern portion of the plaint A schedule property. The

chimney of the defendants 3 and 4 was constructed R.S.A.No.28 of 2021

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within their property. The kitchen was legally constructed.

The plaintiff filed complaint against the 1 st defendant on

04.10.2012 but the defendants 3 and 4 filed complaint

before the Municipality on 08.08.2012. After visiting the

place, the 2nd defendant had issued notice to the plaintiff

for cutting and removing the branches of the trees in

exercise of the statutory powers. The compound wall

separating the plaint A and B schedule properties was

constructed before 45 years. Hence, the defendants

sought to cut and remove the trees overhanging into

plaint B schedule property.

4. Original plaintiff died during the pendency of the

proceedings and the 2nd plaintiff thereafter impleaded as

the legal heir of the plaintiff. During the evidence, PWs.1

to 4 were examined and marked Exts.A1 to A19(a) on the

plaintiff's side. DWs.1 and 2 were examined and Exts.B1

to B6 were marked on the defendants' side. Exts.C1 series R.S.A.No.28 of 2021

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and C2 were marked as court exhibits.

5. Heard the learned counsel for the appellants

Sri.A.Shafeek.

6. The plaintiff himself had taken out a commission

and no objection was seen filed by both parties to the

commission report. Hence, the commission report

remained unchallenged. PW4 the commissioner was

examined and marked Exts.C1, C1(a) and C2. The

commissioner reported that no damage was sustained to

the compound wall separating the plaint A and B schedule

property. Both the trial court and first appellate court

mainly relied on the evidence of PW4 and Exts.C1 and C2

to enter a finding that the kitchen and the chimney

constructed on the wall separating the southern boundary

of plaint A schedule property is not in a dangerous

condition. The defendants 3 and 4 adduced evidence to

prove that they were the absolute owners in possession R.S.A.No.28 of 2021

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and enjoyment of plaint B schedule property by virtue of

sale deed No.2236/1977. Relying on the evidence of PW1

and PW4, both the trial court and first appellate court

concurrently held that the trees in the plaint A schedule

property are overhanging into the plaint B schedule

property and causing much enjoyment of counter claim A

schedule which is described as plaint B schedule in the

plaint.

7. The first appellate court clearly stated that there

is no evidence in this case to prove that the entire trees

standing within the counter claim B schedule property are

to be cut and removed and the available evidence shows

that the overhanging branches of the trees protruding into

the counter claim A schedule property are only to be cut

and removed. Considering the above circumstances, the

trial court dismissed the suit and decreed the counter

claim in part disallowing the prayer of cutting and R.S.A.No.28 of 2021

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removing the trees. However, decree for mandatory

injunction directing the additional plaintiff to cut and

remove the branches of anjili, teak and jack fruit trees

overhanging into counter claim A schedule property is

granted.

8. The right of appeal is conferred by statute. A

second appeal only lies on a substantial question of law. If

statute confers a limited right of appeal, the court cannot

expand the scope of appeal. On going through the

concurrent findings of facts, it is not open for the

defendants to re-agitate facts or to call upon the High

Court to re-analyse or re-appreciate evidence in a second

appeal.

9. In my view, there is no substantial questions of

law involved to warrant interference of the High Court in

second appeal. To be a substantial question of law, a

question of law must be debatable, not previously settled R.S.A.No.28 of 2021

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by the law or any binding precedent and must have a

material bearing on the decision of the case and the rights

of the parties before the court if answered either way. In a

second appeal, as indicated earlier, the jurisdiction of the

court being confined to substantial question of law, a

finding of fact concurrently entered by the two courts

below that the plaintiff is liable to cut and remove the

overhanging branches of the trees based on the evidence

is not open to challenge in second appeal even if the

appreciation of the evidence is erroneous and the finding

of fact is incorrect.

For the reasons discussed above, this R.S.A. is

dismissed in limine. There will be no order as to costs.

Sd/-

N.ANIL KUMAR, JUDGE skj