Mohana Rajan (Died) vs Manoj
2023 Latest Caselaw 6788 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR. JUSTICE T.R.RAVI
     TUESDAY, THE 20TH DAY OF JUNE 2023 / 30TH JYAISHTA, 1945
                           RSA NO. 268 OF 2023
        (AGAINST THE JUDGMENT AND DECREE DATED 28.10.2022 IN
  A.S.NO.152/2016 OF THE HONOURABLE ADDITIONAL DISTRICT COURT-I,
 MAVELIKKARA, CONFIRMING THE JUDGMENT AND DECREE DATED 25.11.2015
  IN O.S.NO.310/2012 OF THE HON'BLE MUNSIFF'S COURT, KAYAMKULAM)
APPELLANT/APPELLANT/1ST DEFENDANT/
LEGAL HEIRS OF APPELLANT (SOUGHT TO BE IMPLEADED):

    1      MOHANA RAJAN (DIED)
           AGED 55 YEARS
           S/O.KRISHNAN, INCHITHARAYIL HOUSE,
           THOTTATHUM MURI, PATHIYOOR VILLAGE FROM,
           MANNANTHARA PADEETTATHIL RAJA BHAVANAM,
           THOTTATHUM MURI, PATHIYOOR VILLAGE
           ALAPPUZHA, PIN - 690 508

    2      MENAKA
           AGED 62 YEARS
           W/O.MOHANARAJAN INCHITHARAYIL HOUSE
           THOTTATHUM MURI, PATHIYOOR VILLAGE FROM,
           MANNANTHARA PADEETTATHIL RAJA BHAVANAM,
           THOTTATHUM MURI, PATHIYOOR VILLAGE
           ALAPPUZHA, PIN - 690 508

    3      AJITH.M,
           AGED 38 YEARS
           S/O.MENAKA INCHITHARAYIL HOUSE, THOTTATHUM MURI,
           PATHIYOOR VILLAGE FROM,
           MANNANTHARA PADEETTATHIL RAJA BHAVANAM,
           THOTTATHUM MURI, PATHIYOOR VILLAGE
           ALAPPUZHA, PIN- 690 508

           BY ADVS.
           R.REJI
           M.V.THAMBAN
           THARA THAMBAN
           B.BIPIN
           ARUN BOSE
 RSA NO. 268 OF 2023
                                2

RESPONDENTS/RESPONDENTS/PLAINTIFF & 2ND DEFENDANT/LEGAL HEIRS OF
2ND DEFENDANT:

    1     MANOJ
          AGED 40 YEARS
          S/O.VASUKUTTAN, INCHITHARAYIL HOUSE,
          THOTTATHUM MURI, PATHIYOOR VILLAGE
          ALAPPUZHA, PIN - 690 508

    2     J.SUMATHI (DIED)
          AGED 57 YEARS
          D/O.JANAKI, LEKSHMANA BHAVANAM,
          THOTTATHUM MURI, PATHIYOOR VILLAGE
          ALAPPUZHA, PIN - 690508

    3     VINOD
          AGED 39 YEARS
          S/O.SUMATHI, LEKSHMANA BHYAVANAM,
          THOTTATHUM MURI, PATHIOYOOR VILLAGE
           ALAPPUZHA, PIN - 690 508

    4     VINOBHA
          AGED 36 YEARS
          S/O.SUMATHI, LEKSHMANAN BAHAVANAM,
          THOTTATHUM MURI, PATHIYOOR VILLAGE
          ALAPPUZHA, PIN- 690 508


     THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
20.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RSA NO. 268 OF 2023
                                      3



                             T.R.RAVI, J.
                    ----------------------------------------
                        RSA No.268 of 2023
                   -------------------------------------------
               Dated this the 20th day of June, 2023

                            JUDGMENT

The second appeal has been filed by the defendant in

a suit for recovery of plaint schedule property. The Trial

Court decreed the suit based on the report of the Advocate

Commissioner and the plan prepared by him with the help

of the Surveyor. As per the plan, it was noted that 90 sq.m

of property out of the total extent of 4.20 ares in

Re.Sy.No.782/31 which belonged to the plaintiff as per

Ext.A1 document has been encroached upon by the

defendant. The defendant preferred appeal before the

First Appellate Court. First Appeallate Court after re-

appreciating the evidence, found that the Trial Court was

justified in rendering the finding. The suit was initially

filed claiming that the defendant had encroached upon 65

sq.m. After the report was filed by the Advocate RSA NO. 268 OF 2023

Commissioner, the plaint was amended to change the

extent from 65 sq.m to 90 sq.m. The Appellate Court found

that the defendant had not produced any document to

establish that the 90 sq.m. which has been shown as an

encroachment by the Advocate Commissioner in Ext.C1(a)

plan belongs to him. At the same time, it is also clear from

the report that the 90 sq.m. which has been marked, forms

part of the 4.20 Ares of property which had been obtained

by the plaintiff on the basis of Ext.A1 document. The

Courts below have concurrently found on facts that there

is encroachment of 90 sq.m. The said finding cannot be

upset in an appeal filed under Section 100 of the Code of

Civil Procedure. No substantial question of law arises. The

appeal fails and is dismissed.

Sd/-

T.R.RAVI

JUDGE sn