JUDGMENT

The Regular Second Appeal has been directed against the judgment and decree passed in A.S.No.26/2009 on the file of Subordinate Judge's Court, Kochi, which arose out of the judgment and decree in O.S.No.405/2004 on the file of Additional Munsiff's Court, Kochi.

2. The appellant is the defeated plaintiff in both courts.

The suit is one for recovery of possession, permanent prohibitory injunction and mandatory injunction. Plaint 'A' schedule property was obtained by the plaintiff as per document No.2503/1983 of Kochi Sub Registry Office. The property is having an extent of 4 cents compromised in survey No.1197/1 of Palluruthy village. Defendant, whose property is situated on the western side of the plaint schedule property, trespassed into a portion of plaint 'A' schedule property in December, 2003 and forcefully constructed a compound wall using concrete slabs and pillars. Though property was measured at the instance of Tahsildar, Kochi, defendant was not agreeable to accept the measurement. Hence the plaintiff filed the suit for recovery of possession of plaint 'B' schedule property having an extent of 445 sq.links and for a mandatory injunction to demolish the compound wall and also for a consequential injunction from trespassing into plaint 'A'

schedule property.

3. The respondent/defendant filed written statement contending that shortage of extent of plaintiff's property is due to the fact that some property on the eastern side of plaint 'A' schedule property has been surrendered for widening the road. The defendant constructed the compound wall in the year 1992 in the presence of plaintiff with his request. During 2003, plaintiff reconstructed the house projecting the sunshade into the defendant's property which was removed later. That provoked the plaintiff to demolish portion of the compound wall of the defendant. No trespass was found in the measurement of Taluk Surveyor, plaintiff confessed surrender of 3 links of property to the road. Hence defendant filed counter claim with respect to 5.250 cents of land in survey No.1197/1 of Palluruthy village which she obtained as per Sale Deed No.2502/1983. The plaintiff taking advantage of the situation that defendant is not residing in the property and her husband is working in military service, demolished some portion of compound wall of the defendant on the northern and middle portion. A permanent prohibitory injunction is also sought for restraining the plaintiff from trespassing into the counter claim property.

4. Plaintiff filed replication to the counter claim contending that the compound wall was constructed in December, 2003 and damage to the compound wall is due to low quality of concrete slab and the attempt to trespass into the defendant's property is also denied.

5. PW1 examined and Exts.A1 and A2 marked from the side of the plaintiff. DWs 1 and 2 examined from the side of defendant. Exts.C1, C2 and C2(a) were also marked.

6. On evaluating the facts and circumstances and evidence adduced, learned Munsiff found that there is evidence to prove that counter claim property is clearly demarcated from plaint 'A' schedule property and defendant is in possession of counter claim property. Accordingly, the suit was dismissed and counter claim was decreed granting permanent prohibitory injunction restraining the plaintiff and men from trespassing into the counter claim schedule property and committing any waste thereon or demolishing the eastern compound wall of the counter claim schedule property. The plaint A schedule property and counter claim schedule property are demarcated as per Ext.C2(a). Ext.C2 report and C2(a) plan are appended to the decree.

7. Against which, A.S.No.26/2009 was filed before the Subordinate Judge's Court, Kochi. The learned Sub Judge, by the impugned judgment, confirmed the judgment and decree passed by the learned Musniff and dismissed the appeal. Aggrieved by the same, appellant/plaintiff approaches this Court in this Regular Second Appeal.

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