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2025 Supreme(Online)(Ker) 13206
2025 KER 35008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A.Abdul Hakhim, J.
Dilkumar, S/O. Rajappan Asari – Petitioner
Versus
Padmanabhan, S/O.Narambu Achari And Ors. – Respondents
RSA No. 1166 of 2010
Decided On : 23-05-2025
Advocate Appeared :
For the Petitioner : Sri.G.S.Reghunath
For the Respondent : Sri.V.Ajakumar, Sri.T.M.Chandran, Sri.Sidharth A.Menon
SRI.G.S.REGHUNATH, SRI.V.AJAKUMAR, SRI.T.M.CHANDRAN, SRI.SIDHARTH A.MENON
The courts upheld the interpretation of property deeds, confirming that the plaintiff failed to prove encroachment or demolition, leading to the dismissal of the appeal.
Headnote:
(A) Property Law - Settlement Deed - Title and Boundary Disputes - The plaintiff sought declaration and injunction regarding property boundaries after alleged encroachment by defendants. The courts below dismissed the suit, finding insufficient evidence of encroachment and correctly interpreting property deeds. (Paras 6, 12, 13)
(B) Evidence - Burden of Proof - The plaintiff failed to prove the defendants' encroachment or the demolition of the common wall, leading to the dismissal of the appeal. (Paras 6, 13)
Facts of the case:
The plaintiff claimed title over property after his father executed a settlement deed, while defendants contended they did not encroach upon the property. The courts found the plaintiff's evidence lacking.
Findings of Court:
The courts upheld the findings of the Trial Court, confirming the plaintiff's title over certain property but dismissing claims of encroachment.
Issues: The main issues were whether the courts erred in interpreting property boundaries and the validity of the evidence presented.
Ratio Decidendi: The courts affirmed that the plaintiff did not provide convincing evidence of encroachment or demolition, and correctly interpreted the property deeds.
Result: Regular Second Appeal dismissed without costs.
JUDGMENT :
M.A.Abdul Hakhim, J.
1. Appellant is the plaintiff in the suit. The suit was for declaration and mandatory & prohibitory injunctions, which were concurrently dismissed by the Trial Court and the First Appellate Court.
2. The essential facts necessary for the disposal of the appeal alone are stated. The father of the plaintiff had plaint A schedule property of 3.676 cents of land consisting of a building having three shop rooms. The father of the plaintiff executed Ext.A1 Settlement Deed of the year 1987 in favour of the plaintiff with respect to 1.200 cents of land including shop room therein, forming the western portion of the plaint A schedule property. The father of the plaintiff sold 1.210 cents of land and the shop room therein situated on the immediate eastern side of Ext.A1 property to the defendants 1 & 2 as per Ext.B1 sale deed of the year 1989. The balance land on the eastern side of Ext.B1 property was settled in favour of the brother of the plaintiff as per Ext.B2 deed of the year 1999. National Highway passes through the northern side of Exts.A1 and B1 properties. The northern portion of Ext.A1 and B1 properties were acquired for widening the National Highway. As per plaint allegations, after acquisition of part of the property by the Government, the original building in plaint A schedule property was demolished by the plaintiff and defendants 1 & 2 and they constructed a concrete building having shop rooms in its place and that the plaintiff is allotted the western shop room with 731 Sq.Links and the defendants 1 and 2 are allotted shop room with 617 Sq.Links on the immediate east. The balance land covered by Ext.A1 after acquisition having the said 731 Sq.Links and the building therein is included in B schedule. The balance land covered by Ext.B1 property after acquisition having the said 617 Sq.Links and the building therein is included in plaint C schedule. As per the plaint allegations, the defendants 1 & 2 encroached into the north eastern corner portion of plaint B schedule room having a width of one feet and a length of ten feet constructing a new wall pushing the existing boundary towards western side after demolishing the existing common wall. The said portion having a width of 1 feet and length of 10 feet is included in plaint D schedule. The alleged newly constructed wall is included in plaint E schedule. As per the plaint allegations, the 3rd defendant, who is the tenant of the plaintiff, supported the illegal action on the part of the defendants 1 and 2 and he demolished the sunshade having a length of 3 ‰ feet and width of (cid:190) feet on the eastern side of plaint B schedule shop room.
3. The plaintiff filed suit seeking declaration of his title over plaint B schedule building; to recover possession of plaint D schedule from the 1st & 2nd defendants; to issue a mandatory injunction to demolish plaint D schedule wall, to construct a common wall on the centre of plaint B and C schedule rooms and to construct the demolished portion of F schedule sunshade; and to issue consequential injunction against the defendants 1 and 2 from trespassing into plaint B schedule property and from taking any steps to reduce the area of plaint B schedule room and committing any waste therein.
4. The defendants contested the suit contending that the defendants 1 & 2 did not encroach into any portion of the shop room belonging to the plaintiff; that the original building was not demolished and reconstructed by the parties after acquisition; that only roof of the building was replaced; that the wall separating Ext.A1 property and Ext.B1 property was not demolished by the defendants; that the wall which existed originally has been still remaining in the property separating the properties of the plaintiff and defendants 1 & 2; that the said wall is not in a straight line as claimed by the plaintiff and that the said wall has projection towards western side on the north western corner of the property of the defendants
