6IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM TH WEDNESDAY, THE 7 DAY OF AUGUST 2024 / 16TH SRAVANA, 1946 RSA NO. 163 OF 2018 AGAINST THE JUDGMENT AND DECREE DATED 04.11.2017 IN AS NO.39 OF 2016 OF SUB COURT,KOCHI ARISING OUT OF THE JUDGMENT DATED 10.12.2015 IN OS NO.316 OF 2013 OF ADDITIONAL MUNSIFF COURT,KOCHI APPELLANT/ 1 s t RESPONDENT/PLAINTIFF :

A. ANILKUMAR AGED 56 YEARS S/O.ANANTHA KAMATH RESIDING AT H.NO.IV/1044 C, NORTH CHERLAI, KOCHI-682002.

BY ADVS.

SRI.G.KRISHNAKUMAR SMT.M.L.REMYA RESPONDENTS / APPELLANT/RESPONDENTS 2 & 3/DEFENDANT S

1 KANAKA BAI W/O.VASUDEVA SHARMA AGED 70 YEARS, RESIDING AT H.NO.4/1197 GOSREE STREET, NORTH CHERLAI, KOCHI- 682002

2 CORPORATIONOF KOCHI REP.BY IT'S SECRETARY, PART AVENUE ROAD, ERNAKULAM, KOCHI- 682011

3 ASSISTANT EXECUTIVE ENGINEER ZONAL OFFICE, KOCHI CORPORATION, FORT KOCHI, BOAT JETTY, KOCHI-682011.

BY ADVS.

FOR R1 SRI.AADITHYAN S.MANNALI SRI.SAJAN MANNALI FOR R2 K B ARUNKUMAR SRI.PRAVEEN K. JOY THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

1. The plaintiffs in a suit for mandatory and prohibitory injunction has filed this Regular Second Appeal. The plaintiff has filed the suit seeking a mandatory injunction against the 1^st defendant to demolish and remove B schedule construction within a time limit and also to restrain the 1^st defendant and her men from trespassing into plaint A schedule property and committing waste therein.

2. The plaintiff has included his property having an extent of

10.300 cents in A schedule. The property of the defendants having an extent of 2.5 cents is situated on the southern side of Plaint A schedule. The plaintiff has included portion of truss work including PVC paathi having a length of 33 feet and 1 feet width protruding into A schedule property from the northern building wall of the 1^st defendant in B schedule.

3. The case of the plaintiff is that the 1^st defendant constructed the truss work upon her open terrace in the building with GI frame and with old and used aluminum sheet without approved plan and permit from Cochin Corporation in the 2^nd week of November, 2012.

4. The 1^st defendant opposed the prayers in the suit stating that the truss work of the 1^st defendant is situated within her property.

5. The Trial Court decreed the suit in favour of the plaintiff.

The 1^st defendant filed appeal before the First Appellate Court as A.S No.39/2016 and the same was allowed setting aside the judgment and decree passed by the Trial Court. This Regular Second Appeal is filed challenging the judgment and decree of the First Appellate Court.

6. I heard the learned counsel for the appellant and learned counsel for the 1^st respondent.

7. The learned counsel for the appellant submitted that the First Appellate Court acted illegally in holding that the boundary of the plaintiff and the 1^st defendant could not be fixed without measurement of the same. According to him, there is no denial of the boundary in the written statement, He pointed out that the 1^st defendant has not disputed the encroachment into plaint A schedule property in the written statement. The Advocate Commissioner has specifically found that the truss work having a width of 3 inch and having a length of 33 feet is protruding into the plaint A schedule property.

8. On the other hand, the learned counsel for the 1^st respondent submitted that the plaintiff constructed the building touching the northern boundary of the 1^st defendant after obtaining consent from the 1^st defendant. The cause of filing the suit was that the plaintiff constructed a car shed near to the boundary of the 1^st defendant and the water from the terrace of the car shed started flowing into the property of the 1^st defendant and the 1^st defendant made a complaint in this regard on 22/01/2013. The Counsel pointed out that the plaintiff submitted a complaint alleging encroachment only subsequently on 04/04/2013. That a