IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM ST FRIDAY, THE 1 DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946 RSA NO. 412 OF 2024 AGAINST THE JUDGMENT DATED 20.02.2024 IN A.S. NO.4/2022 OF SUB COURT, KOTTARAKARA ARISING OUT OF JUDGMENT DATED 27.02.2021 IN O.S. NO. 104/2009 OF MUNSIFF COURT, KOTTARAKARA.

APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 2:

1 SIVANANDAN, AGED 60 YEARS S/O.GOPALAN, RESIDING AT ANAND, AZHANTHAKUZHI, NILAMEL MURI, NILAMEL VILLAGE, KOTTARAKKARA FROM KALA SADANAM, AZHANTHAKUZHI, NILAMEL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN - 691535

2 KAVITHA ANAND, AGED 41 YEARS D/O.SIVANANDAN, RESIDING AT ANAND, AZHANTHAKUZHI, NILAMEL MURI, NILAMEL VILLAGE, KOTTARAKKARA FROM KALA SADANAM, AZHANTHAKUZHI, NILAMEL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT., PIN - 691535 BY ADVS.

B.KRISHNA MANI N.V.SANDHYA DHANUJA M.S RESPONDENTS/RESPONDENTS/PLAINTIFF AND ADDITIONAL 3RD DEFENDANT:

1 SREEJA, AGED 53 YEARS W/O. BAHULEYA PANICKER, RESIDING AT ANUPAMA, JAI PURAM, POWDIKONAM P.O., THIRUVANANTHAPURAM-695588., PIN -

691535

2 BINOJ, AGED 52 YEARS S/O.REGHUTHAMAN, KUVARAKUVILA VEEDU, POOVAMPARA, ALAMCODU, MELATTINGAL, ATTINGAL, THIRUVANANTHAPURAM, PIN - 695558 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

1. The defendants 1 and 2 in the suit are the appellants. The suit, as amended, is filed by the 1^st respondent/plaintiff for declaration of title, recovery of possession, fixation of boundary, and permanent prohibitory injunction and consequential reliefs. The reliefs are sought with respect to plaint B schedule property having an extent of 1.721 Ares, which is part of the plaint A schedule property of 20 cents.

2. As per the plaint averments plaint A schedule property having an extent of 20 cents belongs to the plaintiff. She derived the said property as per Ext. A1 Settlement Deed of the year 1989 executed by the parents of the plaintiff. On the basis of the very same Settlement Deed, 10 cents was settled in favour of the 3^rd defendant, who is the brother of the plaintiff. The plaint A schedule property having an extent of 20 cents is situated on the eastern side of the 10 cents settled in favour of the 3^rd defendant. The father of the plaintiff and the 3^rd defendant derived the total extent of 30 cents as per Ext.A3 document of the year 1970. The said 30 cents is lying in two blocks 10 cents on the west and 20 cents on the east. There was a narrow channel between the two plots running in north-south direction. The 3^rd defendant sold 8.20 cents out of the 10 cents derived as per Ext. A1 to the defendants 1 and 2 as per Ext. A6/B1 Sale Deed. Defendants 1 and 2 have been paying land tax for this 8.20 cents, equivalent to 3.31 Ares. The 3^rd defendant described the property in Ext.A6 wrongly with a view to trespass upon plaint A schedule property. Taking undue advantage of the same, the defendants tried to trespass into plaint A schedule property, which is on the western side of plaint A schedule property. The extent originally shown in Plaint B Schedule was 2 cents of land. According to the plaintiff, during the pendency of the suit, the defendants trespassed further into plaint A schedule property with an extent of 2.225 cents more violating the Interim Injunction Order. Hence, B Schedule was amended to include 4.250 cents. The suit was for declaration of title possession of plaint A and B schedule property, for recovery of plaint B schedule property, fixation of the western boundary, for a permanent prohibitory injunction, and consequential reliefs.

3. The defendants 1 and 2 filed Written Statements contending inter alia that as per Ext.B1 the 1^st defendant derived on 1.31 Ares and the 2^nd defendant derived 2 Ares; that the property of the 2^nd defendant lies on the west of the channel in Survey No. 15/3; that the defendants have not trespassed or committed any mischief in the property belonging to the plainti