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2023 Supreme(Online)(KER) 10093
HIGH COURT OF KERALA
A. BADHARUDEEN, J
KHADER
– Appellant
Versus
HANEESH – Respondent
RSA 6 2022
K.T.SHYAMKUMAR, HARISH R. MENON, K.N.ABHA, A.G.PRASANTH, K.S.SREEJA, OASHIN LALAN, SIRAJ K H, JAVED HAIDER
To maintain an appeal under Section 100 of CPC, a substantial question of law must be evident; mere factual disputes don't qualify.
Headnote:
Property - Boundary Dispute - Code of Civil Procedure - Section 100; Order XLII Rule 1 - The case revolves around boundary identification and encroachment recovery, emphasizing the necessity of proving substantial questions of law to maintain second appeals under CPC, which influences the court's refusal to admit the appeal.
Fact of the Case:
The plaintiff alleged that the defendants encroached upon his property by building a staircase, leading him to file a suit for boundary fixation and recovery of possession, opposed by the defendants who claimed rightful possession and adverse possession.
Finding of the Court:
The court upheld the trial court's decree confirming the boundaries based on evidential materials and dismissed the defendants' appeals as no substantial question of law was found.
Issues: Whether the defendants had illegally encroached upon the plaintiff's property and if the appeal should be admitted based on a substantial question of law.
Ratio Decidendi: The findings about property lines and claim to adverse possession were substantiated adequately; absence of substantial questions of law led to dismissal of the second appeal.
Final Decision: The regular second appeal is dismissed without being admitted.
JUDGMENT
Dated this the 18th day of October, 2023 Defendants in O.S. No.331 of 2013 on the files of the Munsiff Court, Perumbavoor are the appellants in this second appeal filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter). They assail decree and judgment in A.S. No.19 of 2019 dated 28.01.2021 on the files of the Subordinate Judge, Perumbavoor arose from decree and judgment in O.S. No. 331 of 2013 dated 30.03.2019 on the files of the Munsiff Court, Perumbavoor. The sole respondent herein is the plaintiff in the above suit and the respondent in A.S. No. 19 of 2019.
2. Heard the learned counsel for the appellants as well as the learned counsel appearing for the respondent on admission.
3. Parties in this appeal will be referred as “plaintiff”
and “defendants” relegating their status before the trial court, for easy reference.
4. The plaintiff's case in nutshell is that, he purchased plaint A-schedule property on the strength of sale deed No.1691/12 of SRO, Kuruppumpady. Plaint B-schedule item is the property owned by the 1st defendant, lies on the western side of A-schedule property and the same is a property covered by parties in Deed No.1382/92 of SRO, Puthenkurish. According to the plaintiff, a portion of plaint A-schedule was encroached by the 1st defendant taking advantage of the absence of the plaintiff in station, since the plaintiff had been abroad. The plaintiff would contend that the defendants trespassed into the western portion of plaint A-schedule property having an extent of 4 metres and constructed a staircase to the roof of defendants' house, on 20.05.2012. At this juncture, a suit was filed for fixation of the western boundary of plaint A-schedule property with that of plaint B-schedule property and recovery of the encroached portion. In the said suit, mandatory injunction directing the removal of structures in the encroached property and subsequent prohibitory injunction against trespass were sought for.
5. The 1st defendant filed written statement denying the allegations in the plaint and also encroachment. According to the defendants, the claim of the plaintiff that western boundary of plaint A-schedule property separating from B-schedule property was lying without separation and the same was to be fixed, etc. could not be justified. Plaintiff had purchased plaint A-schedule property after effecting measurement and after convincing its four boundaries. He had also erected boundary stones on its 4 boundaries. On the basis of those boundary stones and also due to the natural hight difference of plaint A and B schedule properties, the western boundary of plaint A-schedule property could be clearly identifiable and on the southern side of the western boundary of plaint A-schedule property, a portion of granite stone foundation was also constructed. That granite stone foundation if continued up to the northern boundary it would reach at the boundary stone planted on the north-western corner of plaint A-schedule property. The staircase allegedly standing in the plaint C-
schedule property has been constructed 18 years ago. The said staircase is in the continued possession and enjoyment of the defendants. Therefore, the plaintiff would not be entitled to get a mandatory injunction for demolishing the said staircase. Plaint A-schedule property is lying as barren land and the defendants have not done any mischief.
6. Thereafter, the plaint was amended confining the relief of recovery of possession of 34 square metres of property in tune with the commission report. The 1st defendant filed additional written statement and opposed the claim over 34 square metres of property. The 1st defendant raised an alternative contention that if at all the encroached portion is found to be that of the plaintiff, the 1st defendant perfected title by adverse possession over the same. Therefore, none of the reliefs to be granted.
7. The trial court recorded evidence and tried the matter. PWs
