JUDGMENT

This Regular Second Appeal arises from the judgment dated

18.01.2003 passed by the Principal Subordinate Judge’s Court, Kochi in A.S.No.94 of 2001. The Appeal Suit arose from the judgment dated 19.5.2001 in O.S.No.302 of 1993 passed by the Additional Munsiff’s Court, Kochi. The defendant is the appellant.

2. Material facts relevant for the adjudication of this appeal are as follows:-

2.1. Plaint `A’ schedule property is owned and possessed by plaintiff No.1. Plaintiff No.2 is the owner in possession of plaint `B’ schedule property. Plaint `A’ and `B’ schedule properties, comprised in Survey No.727/A of Fort Kochi Village, are lying contiguously. Plaint `C’ schedule property is a portion of `A’ and `B’ schedule properties upon which the defendant encroached. The defendant has property on the immediate north of plaint `A’ and `B’ schedule properties.

2.2. According to the plaintiffs, the defendant has no right to put up the northern wall of the properties that belong to the plaintiffs. The right to construct, maintain and protect the northern and eastern walls of the properties is with the plaintiffs as per the usage and custom. Though the plaintiffs resisted, the defendant unauthorisedly put up a wall on the northern boundary of `A’ and `B’ schedule properties. The plaintiffs are entitled to prohibitory and mandatory injunctions to demolish and remove the wall put up by the defendant over `C’

schedule property.

2.3. The defendant resisted the claim of the plaintiffs. According to him, the description and extent of the property mentioned in the schedule are incorrect. The southern boundary wall of the property of the defendant belongs to him. The defendant has the right to construct and maintain his southern boundary wall, which is situated in Survey No.725/1 of Fort Kochi Village. The plaintiffs have no right over the southern boundary wall of the defendant’s property. The custom, usage etc., as pleaded by the plaintiffs, are without any foundation. The defendant has not made any construction unauthorizedly, as pleaded by the plaintiffs.

3. During the trial, PWs 1 to 3 were examined and Exts.A1 to A5 were marked on the side of the plaintiffs. On the side of the defendant DW1 was examined and Exts.B1 to B6 were marked. Exts.C1 and C2 series were marked as Court exhibits.

4. The suit was originally decreed in favour of the plaintiffs, which was challenged in A.S.No.27 of 1995 before the Principal Subordinate Judge’s Court, Kochi. The First Appellate Court remanded the suit for fresh disposal with a direction to take out a Commission for the measurement and identification of the properties in dispute. Exts.C2 series report, plan etc. were prepared after the remand of the matter.

5. The trial Court decreed the suit granting prohibitory and mandatory injunctions against the defendant in respect of the plaint schedule properties. The defendant again challenged the decree of the trial Court in A.S.No.94 of 2001. The First Appellate Court confirmed the decree of the trial Court. The defendant is before this Court under Section 100 of CPC.

6. After hearing both sides, this Court re-formulated the substantial question of law as follows:-

“Is not Ext.C2(a) plan relied on by the Courts below incomplete as it does not contain the requirements to identify the properties and re-fix the same.”

7. Heard Sri.Dinesh R Shenoy, the learned counsel for the appellant/defendant and Smt.Vanaja Madhavan, the learned counsel appearing for the respondents/plaintiffs.

8. The case of the plaintiffs is that they are the absolute owners in possession of `A’ and `B’ schedule properties comprised in Survey No.727/A of Fort Kochi Village. According to the plaintiffs, they have the right to construct and maintain the northern boundary wall of the plaint schedule properties. The plaintiffs pleaded that the defendant who has property on the immediate north of `A’ and `B’ schedule properties encroached upon the property in Survey No.727/A and unauthorizedly constructed