A suit for recovery of possession requires stronger grounding in evidence asserting prior ownership and cannot be maintained without the local authority involved in construction claims.

JUDGMENT

These two appeals arises out of the concurrent findings rendered by the Principal Munsiff Court, Irinjalakuda in O.S. No. 1702 of 2004 and O.S. No. 2022 of 2004 and affirmed in A.S. No. 88 of 2012 and A.S. No. 90 of 2012.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. O.S. No. 1702 of 2004 was instituted by the appellants/plaintiffs claiming that the defendant had constructed a multi storied commercial complex violating the Building Rules by submitting a false plan. As per the Building Rules, from the boundary 1 meter or 1.2 meter distance will have to be observed and that the height of the building when increased from 10 meters, 50 cm open space to be left out to each additional 3 meter height. At least 2.20 cm distance will have to be kept on either side and 2.70 cm open space will have to be left on the other side. Though complaints were preferred before the Municipality, the Municipality did not accept the complaint or conduct a proper enquiry.

2.2. Defendants entered appearance and resisted the suit and contended that on the western side of the property of the plaintiffs, there is a compound wall having 9.35 meters and this is the wall of the old building of the defendants and that the plaintiffs are having no authority over the said wall. The Municipality has given notice for demolition of the said wall and within the said compound wall on the eastern side, the boundary of the plaintiffs situates. The building of the plaintiffs as well as the defendant in O.S. No. 1702 of 2004 was constructed by the grandfather of the defendant and the building was partitioned and the eastern portion was given to the elder son and the western portion was given to the father of the defendant. At the time of partition, two compound walls were constructed on the south and north. The wall so constructed in the western side is lying close to the western wall of the plaintiffs. The plaintiffs have no right over the property. O.S. No. 2022 of 2004 is a suit instituted by the defendant in O.S. No. 1702 of 2004 stating that the defendants/plaintiffs in O.S. No. 1702 of 2004 has trespassed into the property of the defendants. It is contended that going by the title deed in favour of the plaintiff in O.S. No. 2022 of 2004, an extent of 14 cents was transferred. The title of the defendant is only in respect of 7 cents. The wall of the building which existed was constructed in such a way that it was done by trespassing into a portion of the plaint schedule property. Therefore, the plaintiff claims for recovery of possession and also fixation of boundary after measuring the properties of the plaintiff and defendants. The defendants/plaintiffs in O.S. No. 1702 of 2004 resisted the plea by contending that the plaintiff has no right over the building wall and that the common predecessor had constructed the building in such a way that both parties have no right over the wall separating the two properties. But, however, in the written statement it is specifically admitted that they have no objection in fixing the boundary. Based on these averments, O.S. No. 1702 of 2004 was taken as leading case and Exts. A1 to A8 documents were produced on behalf of the plaintiffs. Exts. B1 and B2 were produced on behalf of the defendants. Exts. C1 to C6 are the reports and plans submitted by the Advocate Commissioner. PW1 to PW5 were examined on behalf of the plaintiff. The Trial Court, on appreciation of the oral and documentary evidence came to the conclusion that a portion of the plaint schedule property in O.S. No. 1702 of 2004 was trespassed into upon