1. Appellant is the defendant in O.S.No.382 of 2001 of the Munsiff Court, Chittur. The suit was decreed and in appeal, A.S.No.93 of 2005, the District Court, Palakkad upheld the judgment and decree of the Trial Court. Aggrieved by the concurrent findings, this RSA was filed.

2.     Vital facts are as follows:

Respondent is the owner in possession of plaint schedule property having an extent of 8½ cents comprised in Survey No.169/2 of Nenmara Village. Property was obtained by Sale Deed No.1365/1989 of the Nenmara Sub Registry. Respondent is running a shop in the plaint schedule property. On the northern side of the property there was a building with tiled roof owned by the appellant. Wall of the building separated the properties. Suit was filed when the appellant demolished the old building and constructed an R.C building on the same place and attempted to construct the sunshade protruding into the property of the respondent. It is alleged that construction of the sunshade was completed at night after the suit was filed. Apart from the reliefs originally sought, mandatory injunction to remove the sunshade was also hence incorporated by way of amendment.

                  2.1.    The appellant resisted the suit. In his written statement he contended that the respondent is not in actual possession of the plaint schedule property. He denied the averment that the wall of his building separated the properties. He purchased the property having an extent of 1 ¾ cents of land by sale deed No.1304/1997 of Nenmara Sub Registry. Originally there was a thatched building in the property and later it was renovated and a building with tiled roof was constructed. Since 1952 the said building remained with eaves projecting to a length of 3 feet to the south. Newly constructed sunshade has only a width of 21 inches. Respondent has no right over the land below the sunshade. The portion of land belongs to the appellant. As a building with eaves projected at a length of 3 feet was in existence since 1952 the appellant has right of easement by prescription over the plaint schedule property. The appellant also claimed that the title over the property under the sunshade was perfected by adverse possession and limitation.

3. The Trial Court framed six issues. PWs 1 and 2 were examined and Exts.A1 to A3 were marked on the side of the respondent. On the side of the appellant, DWs 1 and 2 were examined and Exts.B1 to B13 were marked. CW 1 was also examined and Exts.C1 to C7 and C8 series were marked.

4. On conclusion of trial the learned Munsiff decreed the suit granting following reliefs:

                  (a)      The defendant is directed to remove the portion of the sunshade which is projecting into plaint schedule property as shown in Ext.C8(b) plan in green colour through a mandatory injunction within a period of 30 days from today.

                  (b)      On the failure of the defendant the plaintiff is at liberty to get removed the construction made by the defendant projecting into the plaint schedule property though the process of the court and to realise the costs thereon from the defendant.

                  (c)      The defendant is restrained from trespassing into the plaint schedule property and from making construction projecting into it and from causing obstruction to the plaintiff’s peaceful possession and enjoyment through a permanent prohibitory injunction.”

5. Aggrieved by the judgment and decree passed by the Trial Court appellant preferred A.S.No.93 of 2005. The appeal was dismissed by the learned I Additional District Judge, Palakkad. The Appellate Court concurred with the findings and conclusions of the Trial Court.

6. The learned counsel for the appellant contended that the concurrent findings by the Trial Court and the Appellate Court are erroneous and substantial questions of law are involved in this appeal. He took exception to the report and sketch prepared by the Advocate Commissioner and pointed out that the plans were marked without examining the Surveyor. The Courts below relied on the report and plan without even noticing the fact that the Commissioner did not offer any explanation as to how the properties were identified. He also submitted that both the Courts did not examine the prior title deeds of the respondent and if the derivation of title was analyzed with reference to the previous documents the fallacy of the claims of the respondent would have revealed. He pointed out that the Courts below did not frame any issue regarding the title of the respondent over the disputed property and the legality of the same is a substantial question of law arising for consideration in this appeal. The learned counsel further submitted that while granting the relief of mandatory injunction the courts below did not keep the principles of equity in mind and instead of granting mandatory injunction, nominal compensation could have been fixed. He hence contended that the impugned judgments and decrees are liable to be set aside. The learned counsel for the appellant relied on the judgment of this Court in Moosa v. Moideen [2000 SCC OnLine Ker 47] and submitted that the High Court can raise any substantial question of law other than those raised in the appeal in the light of the arguments. He also referred to judgment of the Hon'ble Supreme Court in M.K.Ranganathan v. Government of Madras [(1955) 1 SCC 692] in support of his contention. The learned counsel also relied on the judgment in Retnamma v. Mehaboob [2011 SCC OnLine Ker 4263] in support of the contention that in the absence of any reference in the Commissioner’s report about the details in the Surveyor's plan, the plan cannot be independently admitted as evidence.

7. The learned Senior Counsel for the respondent on the other hand submitted that no substantial question of law is involved in this appeal. He relied on the following judgments, laying down the guiding principles regarding the constricted jurisdiction under Section 100 of the CPC and submitted that a Second Appeal cannot be entertained unless a substantial question of law is involved.

                  (i) Hero Vinoth (Minor) v. Seshammal [(2006) 5 SCC 545]

                  (ii) Chunilal V.Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. [1962 SCC OnLine SC 57].

                  (iii) Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740]

                  (iv) Jaichand (Dead) Through Lrs. & Others v. Sahnulal & Another [2024 SCC OnLine SC 3864].

8. The learned Senior Counsel submitted that the Courts below have concurrently found the factual aspects against the appellant on a proper appreciation of evidence. Re-appreciation of evidence is not within the scope of a Second Appeal. He further submitted that issues projected in this Second Appeal including the questions of law framed in memorandum of appeal are purely factual issues. The learned Senior Counsel pointed out that no evidence was adduced by the appellant to show that he has any property within Resurvey Nos.136/3 pt and 136/4 pt (Old Survey No.169/2 pt). Hence the contention of the appellant that he has got title to the land under the sunshade was rightly rejected by the courts below. The learned Senior Counsel pointed out that the contentions of the appellant are inconsistent. The learned Senior Counsel replied to the factual submissions made by the learned counsel for the appellant and contended that there is no room for arriving at any different conclusion in this Second Appeal as the appreciation of evidence by the Trial Court as well as the Appellate Court was proper. He hence pleaded that the appeal may be dismissed.

9. I have analyzed the contentions of both sides.

Perused the relevant records.

10. I find considerable merit in the contention of the respondent that there is no substantial question involved in this appeal. The appellant resisted the suit by raising various pleas. He contended that the portion of the land under the shade belongs to him. Nevertheless, as rightly noted in the impugned judgments no evidence was adduced to show that he has got any rights over the properties comprised in Resurvey Nos.136/3 pt and 136/4 pt (Old Survey No.169/2 pt). He also contended that initially a thatched building and subsequently a building with tiled roof were there in these properties and eaves of the buildings were projecting by 3 feet on the southern side. He submitted that the buildings were there since 1952 and therefore right over the space was acquired by adverse possession. Right of easement by prescription was also claimed. Though he had pleaded that he has title of the property under the sunshade, in the next breath he claims easement by prescription as also adverse possession. However, no reliable evidence was adduced to prove that eaves of the old buildings were projecting by 3 feet into the plaint schedule property. Inconsistent and mutually destructive contentions were adopted by the appellant. Hence the rial court and the Appellate Court rejected those contentions. Arguments raised in this Second Appeal including those with regard to propriety of relying on the Advocate Commissioner’s report and plan would not constitute any substantial questions of law. I agree with the contention of the respondent that no substantial question of law is involved in this appeal and absolutely there is no reason to differ with the concurrent findings of the Trial Court and the Appellate Court. Though the learned counsel for the appellant submitted that instead of the mandatory injunction, discretion to grant compensation can be exercised, I am not inclined to adopt such a course as the non-removal of the sunshade would affect enjoyment of the plaint schedule property. It is also to be noted that the respondent contended that the construction was completed after the filing of the suit and perusal of the report of the Advocate Commissioner shows that the same was correct.

11. The learned Senior Counsel for the respondent, during the course of hearing submitted that the respondent is prepared to remove the sunshade without any damage to the building of the appellant and also to do proper plastering so that no damage will be caused to the building. The said submission is recorded.

The RSA is dismissed.