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2025 DIGILAW 1401 (KER)

Kanchana v. Chathan

2025-05-23

EASWARAN S.

body2025
JUDGMENT : Easwaran S., J. These appeals arises out of the common judgment in A.S.No.20 and 23 of 2023 on the files of Sub Court, Chavakkad. These appeals were preferred by the appellant, aggrieved by the judgment and decree in O.S.No.402/2007 and 758/2009 of the Munsiff Court, Chavakkad. 2. O.S.No.402/2007 was preferred by the appellant as the plaintiff, seeking for a permanent prohibitory injunction restraining the defendant from interfering with the possession of the plaintiff – appellant. O.S.No.758/2009 was instituted by the defendants in O.S.No.402/2007 seeking for declaration of title, recovery of possession, a permanent prohibitory injunction and a mandatory injunction. 3. The appellant contended that by virtue of Settlement Deed No.802/1998 of Akkikkavu S.R.O., the appellant derived right, title and interest over the property. The northern side of the plaint scheduled property is the property of the defendants. There is a height difference of 2 to 6 feet with the property of the defendants to that of the plaintiff’s property, both are well demarcated and is in their respective possessions. On 25.05.2007, the defendants, along with their men, came to the plaint schedule property and tried to cause damage to the boundaries of the plaint schedule property. The defendants entered appearance and contended that the description of the plaint schedule property is not correct and that there is no boundary to separate the plaint schedule property from the property of the defendants. The right of the plaintiff over the plaint schedule property was questioned. 4. After the filing of the written statement, the defendants preferred O.S.No.758/2009 based on Ext.A1 Deed No.1028/1998 of Akkikavu S.R.O. The suit was for recovery of possession, permanent prohibitory injunction and a mandatory injunction. Both the suits were tried jointly. An Advocate Commissioner was appointed to identify the property, in order to ascertain as to whether there was any encroachment on the side of the appellant - plaintiff in O.S.No.402/2007. The Advocate Commissioner, after local inspection, found that the appellant herein had encroached over a portion of the plaint schedule property in O.S.No.758/2009. Accordingly, Exts.C1 report and C1(a) plan were filed. The appellant/plaintiff in O.S.No.402/2007, contested the suit in O.S.No.758/2009 by raising a plea of adverse possession. The Advocate Commissioner, after local inspection, found that the appellant herein had encroached over a portion of the plaint schedule property in O.S.No.758/2009. Accordingly, Exts.C1 report and C1(a) plan were filed. The appellant/plaintiff in O.S.No.402/2007, contested the suit in O.S.No.758/2009 by raising a plea of adverse possession. The Trial Court, on appreciation of evidence, found that the appellant herein had no consistent case inasmuch as the plea of adverse possession was not raised in O.S.No.402/2007 and that only in the written statement in O.S.No.758/2009, the aforesaid contention was raised. Accordingly, the Trial Court decreed O.S.No.758/2009 and granted a decree for recovery of possession of plaint B schedule property shown as “B in C1(a) plan”. 5. Aggrieved by the judgment and decree, the appellant herein preferred A.S.Nos.20/2023 and 23/2023. The First Appellate Court also concurred with the finding of fact entered by the Trial Court and accordingly, dismissed the appeal. 6. Heard, Sri.Rasmi Nair T.– learned counsel appearing for the appellant. 7. The learned counsel for the appellant submitted that since the defendants in O.S.No.758/2009 had not claimed any decree for declaration of title, the Trial Court could not have ordered the recovery of possession. It is also pointed out that the Advocate Commissioner went wrong in finding that the appellant had encroached upon the property of the defendants’. 8. I have considered the submissions raised by the learned counsel for the appellant. 9. The sole question to be considered in the appeal is as to whether the concurrent finding of fact entered by the Trial Court and affirmed by the First Appellate Court requires any interference by this Court. Admittedly, the appellant had not sought for a declaration of title in O.S.No.402/2007, whereas the defendant/plaintiff in O.S.No.758/2009 had sought for the same based on Ext.A1 document. The Advocate Commissioner on local inspection found that the appellant herein had encroached upon the property of the plaintiff in O.S.No.758/2009. It has not been shown before me that the report of the Advocate Commissioner was objected to by the appellant and there was an application to remit the report of the Advocate Commissioner. In the absence of the same, the finding of fact entered by the Advocate Commissioner, which was accepted by the Trial Court, cannot be said to be perverse warranting interference by this Court in exercise of its powers under Section 100 of the Code of Civil Procedure, 1908. In the absence of the same, the finding of fact entered by the Advocate Commissioner, which was accepted by the Trial Court, cannot be said to be perverse warranting interference by this Court in exercise of its powers under Section 100 of the Code of Civil Procedure, 1908. Resultantly, this Court finds that no substantial question of law arises for consideration in the present appeal. Accordingly, the appeal fails and the same is dismissed.