Kerala High Court
Mundiyottu Aboobacker vs Kuttientavida Keezhatta Sooppy on 5 November, 2024
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RSA NO.574 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
RSA NO. 574 OF 2024
AGAINST THE JUDGMENT DATED 12.07.2024 IN AS NO.10 OF 2023 OF
SUB COURT, VATAKARA
ARISING OUT OF THE JUDGMENT DATED 03.01.2023 IN OS NO.175 OF
2017 OF MUNSIFF COURT, NADAPURAM
APPELLANT/APPELLANT/PLAINTIFF:
MUNDIYOTTU ABOOBACKER
AGED 62 YEARS
SOOPY, RESIDING AT 'MOYILOTH', IYYAMKODE AMSOM,
KAKKATTIL DESOM, IYYAMKODE POST, VATAKARA TALUK,
KOZHIKODE DISTRICT., PIN - 673504
BY ADVS.
SRI.S.V.BALAKRISHNA IYER (SR.)
P.B.SUBRAMANYAN
SABU GEORGE
MANU VYASAN PETER
MEERA P.
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 KUTTIENTAVIDA KEEZHATTA SOOPPY
AGED 75 YEARS
S/O. KUNHAVULLA HAJI, KUMMANKODE AMSOM, NADAPURAM
DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT., PIN -
673504
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RSA NO.574 OF 2024
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2 KUTTIENTAVIDA KEEZHATTA MOIDEEN
AGED 71 YEARS
S/O. KUNHAVULLA HAJI, KUMMANKODE AMSOM, NADAPURAM
DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.,
PIN - 673504
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
05.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The plaintiff in a suit for fixation of boundary and permanent
prohibitory injunction is the appellant herein.
2. The plaintiff obtained the plaint schedule property as per
Ext.A1 Sale Deed. The Plaint schedule property is a part of a
building consisting of one shop room in the ground floor, a rear
small room and a room on the first floor and the land in which
the said building is situated. As per the plaint allegations, the
tiled roof of the building was in a dilapidated condition and the
plaintiff replaced the same with metal sheets. When the
plaintiff attempted to replace the existing wooden rafters and
broken sheets, the defendants objected to the repairs, claiming
right over the northern side of the plaint schedule property. The
defendant lodged a Caveat in which it is alleged that the length
of the plaint schedule building in the north-south is 9.5
Carpenter Koles and that the plaintiff is trying to trespass into
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their property. The plaintiff has not trespassed into the
property of the defendant. The plaintiff purchased the plaint
schedule property from the nephew of the defendants and the
defendants are the attesting witnesses of the sale deed. The
plaintiff obtained title to the land that includes the area
beneath the roof of the building including eaves. Since the
northern boundary of the property is disputed, the plaintiff filed
the suit for fixation of the northern boundary of the plaint
schedule property as per Ext.A1 document aligning with the
eaves projected beyond the walls and for consequential
injunction.
3. The defendants opposed the suit prayers by filing a written
statement, contending, inter alia, that the rear room shown in
the plaint schedule property was never a part of the plaint
schedule property and the same belongs to the defendants. The
attempt of the plaintiff is to annex the aforesaid room along
with his property. Some portions of the plaintiff's property were
lost as a part of widening the State highway. The measurements
and description shown in the Ext.A1 document are not correct.
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The plaintiff, without the knowledge and consent of the
defendants and other co-owners, renewed the wall between the
rooms and attempted to fix a new wall on the northern side.
4. The Trial Court dismissed the suit relying on the Ext.C2
Commission Report. Though the plaintiff filed an Appeal before
the First Appellate Court, the same was dismissed, confirming
the judgment and decree of the Trial Court.
5. I heard the learned Senior Counsel Sri.S.V.Balakrishna Iyer, as
instructed by Adv.Sri.P.B.Subramanyan.
6. The learned Senior Counsel contended that, though the rear
room does not come within the measurements of Ext.A1, since
it form part of the building and the northern boundary is shown
as vacant land, the plaintiff has possessory title over the same.
The Trial Court ought to have granted an injunction in favour
of the plaintiff with respect to the same.
7. The plaintiff obtained Exts.C1 and C2 Commission Reports for
fixation of boundary. As per Exts.C1 and C2, it is found that,
going by the measurements in Ext.A1 document, the rear room
does not come within the measurements, though the northern
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boundary is shown as vacant land. As per Ext.A1, the
measurement of the plaint schedule building is 9.5 Carpenter
Koles, which is equivalent to 6.8 mtrs in the north-south
direction and 9 Carpenter Koles equivalent to 6.5 mtrs in the
east-west direction. When the said measurements were taken
by the Advocate Commissioner, the Advocate Commissioner
found that the rear room does not come within the
measurement of Ext.A1. As per Ext.A1, the plaintiff derived 0.4
Ares. The Advocate Commissioner found that, as per the
measurements in Ext.A1, the area comes to 40.46 sq. mtrs
without including the rear room.
8. Ext.A1 contains the side measurements of the property. In
Ext.C2, the Advocate Commissioner identified the property
with the same side measurements. Accordingly, the northern
boundary is fixed and it has come out that the northern small
room is not included in the plaint schedule building. The
plaintiff did not have a case that he has possessory title over
the rear room. The plaintiff has not sought for any declaration
of his rights over the rear small room. Accordingly, I do not find
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any ground to interfere with the Regular Second Appeal and
the same is accordingly dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
shg/-xx
