The absence of substantial legal questions permits dismissal of the appeal regarding encroachment on minor property.

J U D G M E N T

The defendants in OS No.620/2018 on the files of the Additional Munsiff's Court, Kottayam, a suit for fixation of boundary, recovery of possession and injunction, have come up in the present second appeal aggrieved by the concurrent findings recorded against them by the courts below.

2. The plaintiff purchased item No.1 from the defendants for the beneficial enjoyment of the adjacent property belonging to the plaintiff. It is alleged that during December, 2017, the defendants encroached upon item No.1 and made illegal constructions, and the said portion is scheduled as item No.2. On 24.3.2018, the property was measured out and from the measurement, the encroachment made by the defendants was evident. Demand made by the plaintiff to the defendants to remove the encroachments was not accepted and hence, the suit. The defendants contended that they sold 18 square metres of property to the plaintiff and they never encroached into the plaint item No.1 property. Even prior to the purchase of item No.1 by the plaintiff, a building was situated in the defendants' property, which exclusively belonged to them and thus the suit is liable to be dismissed. The trial court deputed an Advocate Commissioner, who filed Exts.C1 & C2 reports and Ext.C1(a) rough sketch & Ext.C2(a) survey plan. The trial count found that the sale of the property by Ext.A1 is accompanied by a survey plan. Referring to Ext.C2(a) plan, the trial court found that the defendants had encroached into item No.1 and the portion was shown in letters as “ahgfa”. As regards the claim for fixation of boundary, the trial court found that there is no specific demarcation available between item No.1 and the remaining property belonged to the defendants, which was admitted by DW1 in the cross- examination. Accordingly, the suit was decreed. Aggrieved, the defendants preferred AS No.101/2023 before the Additional District Court-IV, Kottayam and by judgment dated 30.6.2025 the appeal was dismissed finding that there is no perversity in the appreciation of evidence by the trial court. Accordingly, the appeal was dismissed. Hence, the present second appeal.

3. Heard Sri.Atul Mathews, the learned counsel appearing for the appellants/defendants, and Sri.Harish Abraham, the learned counsel appearing for the respondent/plaintiff-caveator.

4. The learned counsel appearing for the appellants primarily contended that the suit for fixation of boundary cannot be maintained in the absence of the identification of the adjoining properties of the parties to the suit and in support of his contention relied on the decision of this Court in Nandakumara Varma and Another v. Usha Varma and Another [2014 KHC 854] and also the unreported judgment of this Court inChandrika & Ors v. Sudhakaran [RSA No.834/2018 dated 20.7.2021]. It is further contended that the plaintiff had not scheduled the property of the defendants and the report and plan of the Advocate Commissioner, Exts.C2 and C2(a), are erroneous. Referring to the evidence of the Advocate Commissioner, the learned counsel submitted that the Commissioner has not identified the property in question. Therefore, the dispute regarding ownership over the portion of the land marked in the Commissioner's report was not resolved by the courts below. Thus, the learned counsel prayed that this appeal be admitted on the substantial questions of law framed in the memorandum of appeal.

5. Per contra, Sri.Harish Abraham, the learned counsel appearing for the respondent/plaintiff, supported the findings of the courts below and contended that the findings are purely based on appreciation of evidence and that such an appreciation of evidence cannot be said to be perverse warranting in