[Cites 7, Cited by 0]
Kerala High Court
K.Balan vs Shaik Musthafa on 3 December, 2025
RSA No.288 of 2009 2025:KER:93043
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 3RD DAY OF DECEMBER 2025 / 12TH AGRAHAYANA,
1947
RSA NO. 288 OF 2009
AGAINST THE JUDGMENT AND DECREE DATED 29.09.2008 IN
AS NO.93 OF 2005 OF I ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 19.01.2005 IN
OS NO.382 OF 2001 OF MUNSIFF COURT, CHITTUR
APPELLANT/APPELLANT/DEFENDANT:
K.BALAN
S/O.KANNIVELAN, ANDITHARA, NENMARA VILLAGE,
CHITTUR TALUK, PALAKKAD DISTRICT.
BY ADVS.
SHRI.O.RAMACHANDRAN NAMBIAR
SRI.GEEN T.MATHEW
RESPONDENT/RESPONDENT/PLAINTIFF:
SHAIK MUSTHAFA
S/O.BAJI @ SHAIK IBRAHIM SAHEB, PUTHENTHARA,
NENMARA VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT.
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.P.M.NEELAKANDAN
SHRI.S.NITHIN (ANCHAL)
RSA No.288 of 2009 2025:KER:93043
2
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 27.11.2025, THE COURT ON 03.12.2025 DELIVERED THE
FOLLOWING:
RSA No.288 of 2009 2025:KER:93043
3
S.MANU, J.
--------------------------------------------------
RSA No.288 of 2009
-------------------------------------------------
Dated this the 03rd day of December, 2025
JUDGMENT
Appellant is the defendant in O.S.No.382 of 2001 of
the Munsiff Court, Chittur. The suit was decreed and in
appeal, A.S.No.93 of 2005, the District Court, Palakkad
upheld the judgment and decree of the Trial Court.
Aggrieved by the concurrent findings, this RSA was filed.
2. Vital facts are as follows:
Respondent is the owner in possession of plaint
schedule property having an extent of 8½ cents comprised
in Survey No.169/2 of Nenmara Village. Property was
obtained by Sale Deed No.1365/1989 of the Nenmara Sub
Registry. Respondent is running a shop in the plaint
schedule property. On the northern side of the property
RSA No.288 of 2009 2025:KER:93043
there was a building with tiled roof owned by the appellant.
Wall of the building separated the properties. Suit was filed
when the appellant demolished the old building and
constructed an R.C building on the same place and
attempted to construct the sunshade protruding into the
property of the respondent. It is alleged that construction
of the sunshade was completed at night after the suit was
filed. Apart from the reliefs originally sought, mandatory
injunction to remove the sunshade was also hence
incorporated by way of amendment.
2.1. The appellant resisted the suit. In his written
statement he contended that the respondent is not in
actual possession of the plaint schedule property. He denied
the averment that the wall of his building separated the
properties. He purchased the property having an extent of
1 ¾ cents of land by sale deed No.1304/1997 of Nenmara
RSA No.288 of 2009 2025:KER:93043
Sub Registry. Originally there was a thatched building in the
property and later it was renovated and a building with tiled
roof was constructed. Since 1952 the said building
remained with eaves projecting to a length of 3 feet to the
south. Newly constructed sunshade has only a width of 21
inches. Respondent has no right over the land below the
sunshade. The portion of land belongs to the appellant. As
a building with eaves projected at a length of 3 feet was in
existence since 1952 the appellant has right of easement
by prescription over the plaint schedule property. The
appellant also claimed that the title over the property under
the sunshade was perfected by adverse possession and
limitation.
3. The Trial Court framed six issues. PWs 1 and 2 were
examined and Exts.A1 to A3 were marked on the side of
the respondent. On the side of the appellant, DWs 1 and 2
RSA No.288 of 2009 2025:KER:93043
were examined and Exts.B1 to B13 were marked. CW 1 was
also examined and Exts.C1 to C7 and C8 series were
marked.
4. On conclusion of trial the learned Munsiff decreed
the suit granting following reliefs:
(a) The defendant is directed to remove the portion of the
sunshade which is projecting into plaint schedule property
as shown in Ext.C8(b) plan in green colour through a
mandatory injunction within a period of 30 days from
today.
(b) On the failure of the defendant the plaintiff is at liberty
to get removed the construction made by the defendant
projecting into the plaint schedule property though the
process of the court and to realise the costs thereon from
the defendant.
(c) The defendant is restrained from trespassing into the
plaint schedule property and from making construction
projecting into it and from causing obstruction to the
plaintiff's peaceful possession and enjoyment through a
permanent prohibitory injunction."
5. Aggrieved by the judgment and decree passed by
the Trial Court appellant preferred A.S.No.93 of 2005. The
appeal was dismissed by the learned I Additional District
Judge, Palakkad. The Appellate Court concurred with the
RSA No.288 of 2009 2025:KER:93043
findings and conclusions of the Trial Court.
6. The learned counsel for the appellant contended
that the concurrent findings by the Trial Court and the
Appellate Court are erroneous and substantial questions of
law are involved in this appeal. He took exception to the
report and sketch prepared by the Advocate Commissioner
and pointed out that the plans were marked without
examining the Surveyor. The Courts below relied on the
report and plan without even noticing the fact that the
Commissioner did not offer any explanation as to how the
properties were identified. He also submitted that both the
Courts did not examine the prior title deeds of the
respondent and if the derivation of title was analyzed with
reference to the previous documents the fallacy of the
claims of the respondent would have revealed. He pointed
out that the Courts below did not frame any issue regarding
RSA No.288 of 2009 2025:KER:93043
the title of the respondent over the disputed property and
the legality of the same is a substantial question of law
arising for consideration in this appeal. The learned counsel
further submitted that while granting the relief of
mandatory injunction the courts below did not keep the
principles of equity in mind and instead of granting
mandatory injunction, nominal compensation could have
been fixed. He hence contended that the impugned
judgments and decrees are liable to be set aside. The
learned counsel for the appellant relied on the judgment of
this Court in Moosa v. Moideen [2000 SCC OnLine Ker
47] and submitted that the High Court can raise any
substantial question of law other than those raised in the
appeal in the light of the arguments. He also referred to
judgment of the Hon'ble Supreme Court in
M.K.Ranganathan v. Government of Madras [(1955) 1
RSA No.288 of 2009 2025:KER:93043
SCC 692] in support of his contention. The learned counsel
also relied on the judgment in Retnamma v. Mehaboob
[2011 SCC OnLine Ker 4263] in support of the
contention that in the absence of any reference in the
Commissioner's report about the details in the Surveyor's
plan, the plan cannot be independently admitted as
evidence.
7. The learned Senior Counsel for the respondent on
the other hand submitted that no substantial question of
law is involved in this appeal. He relied on the following
judgments, laying down the guiding principles regarding
the constricted jurisdiction under Section 100 of the CPC
and submitted that a Second Appeal cannot be entertained
unless a substantial question of law is involved.
(i) Hero Vinoth (Minor) v. Seshammal
[(2006) 5 SCC 545]
(ii) Chunilal V.Mehta and Sons Ltd. v. Century
Spinning and Manufacturing Co. Ltd.
RSA No.288 of 2009 2025:KER:93043
[1962 SCC OnLine SC 57].
(iii) Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740]
(iv) Jaichand (Dead) Through Lrs. & Others v.
Sahnulal & Another [2024 SCC OnLine SC 3864].
8. The learned Senior Counsel submitted that the
Courts below have concurrently found the factual aspects
against the appellant on a proper appreciation of evidence.
Re-appreciation of evidence is not within the scope of a
Second Appeal. He further submitted that issues projected
in this Second Appeal including the questions of law framed
in memorandum of appeal are purely factual issues. The
learned Senior Counsel pointed out that no evidence was
adduced by the appellant to show that he has any property
within Resurvey Nos.136/3 pt and 136/4 pt (Old Survey
No.169/2 pt). Hence the contention of the appellant that he
has got title to the land under the sunshade was rightly
rejected by the courts below. The learned Senior Counsel
RSA No.288 of 2009 2025:KER:93043
pointed out that the contentions of the appellant are
inconsistent. The learned Senior Counsel replied to the
factual submissions made by the learned counsel for the
appellant and contended that there is no room for arriving
at any different conclusion in this Second Appeal as the
appreciation of evidence by the Trial Court as well as the
Appellate Court was proper. He hence pleaded that the
appeal may be dismissed.
9. I have analyzed the contentions of both sides.
Perused the relevant records.
10. I find considerable merit in the contention of the
respondent that there is no substantial question involved in
this appeal. The appellant resisted the suit by raising
various pleas. He contended that the portion of the land
under the shade belongs to him. Nevertheless, as rightly
noted in the impugned judgments no evidence was adduced
RSA No.288 of 2009 2025:KER:93043
to show that he has got any rights over the properties
comprised in Resurvey Nos.136/3 pt and 136/4 pt (Old
Survey No.169/2 pt). He also contended that initially a
thatched building and subsequently a building with tiled
roof were there in these properties and eaves of the
buildings were projecting by 3 feet on the southern side. He
submitted that the buildings were there since 1952 and
therefore right over the space was acquired by adverse
possession. Right of easement by prescription was also
claimed. Though he had pleaded that he has title of the
property under the sunshade, in the next breath he claims
easement by prescription as also adverse possession.
However, no reliable evidence was adduced to prove that
eaves of the old buildings were projecting by 3 feet into the
plaint schedule property. Inconsistent and mutually
destructive contentions were adopted by the appellant.
RSA No.288 of 2009 2025:KER:93043
Hence the rial court and the Appellate Court rejected those
contentions. Arguments raised in this Second Appeal
including those with regard to propriety of relying on the
Advocate Commissioner's report and plan would not
constitute any substantial questions of law. I agree with the
contention of the respondent that no substantial question of
law is involved in this appeal and absolutely there is no
reason to differ with the concurrent findings of the Trial
Court and the Appellate Court. Though the learned counsel
for the appellant submitted that instead of the mandatory
injunction, discretion to grant compensation can be
exercised, I am not inclined to adopt such a course as the
non-removal of the sunshade would affect enjoyment of the
plaint schedule property. It is also to be noted that the
respondent contended that the construction was completed
after the filing of the suit and perusal of the report of the
RSA No.288 of 2009 2025:KER:93043
Advocate Commissioner shows that the same was correct.
11. The learned Senior Counsel for the respondent,
during the course of hearing submitted that the respondent
is prepared to remove the sunshade without any damage to
the building of the appellant and also to do proper
plastering so that no damage will be caused to the building.
The said submission is recorded.
The RSA is dismissed.
Sd/-
S.MANU
JUDGE
MC
