IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 RSA.No. 387 of 2010() ------------------------------ AS.167/2005 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.601/2000 of MUNSIFF COURT,PATHANAMTHITTA .................... APPALLANT/2ND APPELLANT/4TH DEFENDANT --------------------- RADHAKRISHNAN, S/O. PARAMESWARAN NAIR, AGED 43 YEARS, RADHAPURAM, ELAKOLLOOR.P.O., PRAMADOM VILLAGE. BY ADV. SRI. K.SHAJ SRI.RENJIT JOHN SRI.L.RAJ MOHAN SRI.SAJJU.S SMT.REXY ELIZABETH THOMAS SRI.SYAM J SAM RESPONDENT(S): RESPONDENT/PLAINTIFF/2ND RESPONDENT/IST APPELLANT/ --------------------------- 3RD DEFENDANT 1. RAVEENDRAN NAIR, PARATHIYIL HOUSE, ELEKOLLOOR.P.O., PRAMADOM VILLAGE. 2. SARASWATHY, W/O. SIVAN, LEKSHMI NILAYAM, ELAKOLLOOR.P.O., PRAMADOM VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------- R.S.A No.387 of 2010 -------------------------- Dated this the 4th June, 2010 J U D G M E N T The short question that arises for consideration in this Second Appeal is whether the decree passed by the trial court is justified or not. Parties hereinafter referred to as are available before the trial court. 2. Plaintiff claims to have been obtained plaint schedule property as per Ext.A1 sale deed dated 6.3.2000. Plaintiff constructed a shop room in the property A Panchayat road is lying along the eastern side of the plaint schedule property. Defendants are residing on the western side of plaint item No.1. Defendants are using plaint item No.2 for ingress and egress to their house. Plaintiff got information that defendants are trying to widen the plaint item No.2 pathway annexing the southern portion of plaint schedule property. Plaintiff instituted the the suit. Thereafter on 3.12.2000 defendants trespassed into plaint item and demolished its southern boundary to a great extent. They are also alleged to have destroyed rubber trees which were standing in the plaint schedule R.S.A No.387 of 2010 2 causing damage to the tune of Rs.15000/- to the plaintiff. 3. The suit was one for damages and other ancillary reliefs. 4. The suit was resisted by the defendants. Defendants entered appearance. They pointed out that allegations raised by the plaintiff are untrue and wague. They have not done any activity to damage the pathway. 5. The trial court raised necessary issues for consideration. It is seen that the suit was posted for trial. Defendants did not appear and were declared as ex parte. Exts.A1 to A5 and Ext.C1 and C6 were marked from the side of the plaintiff. 6. The court below on evaluation of the evidence on record came to the conclusion that plaintiff succeeded in establishing the case against defendants and a decree was passed as follows: "In the result, suit is decreed. The defendants are directed by a mandatory injunction to restore the western portion of plaint schedule property to a length of 120 feet and width of 4 feet to its original position. If the defendants fail to comply with this order within 30 days from the date of this judgment plaintiff is permitted to restore these portion and to realise R.S.A No.387 of 2010 3 the expenses thereto from the defendants and their assets. Plaintiff is given a decree to realise a sum of Rs.15,000/- (Rupees Fifteen thousand only) as damages with 6% interest per annum from the date of the suit till realisation from the defendants and their assets." 7. Defendant Nos.3 and 4 carried the matter in appeal as A.S No.167/05 before the Addl. District Court, Pathanamthitta. The only point argued before the lower court was that during the pendency of the suit defendants 1 and 2 died and decree had been passed against dead persons. The decree being joint and inseparable, that decree is void and is not enforcible against defendants. 8. The lower appellate court considered the issue in detail and came to the conclusion that liability cast is joint and several, the decree holder can proceed against other defendants. 9. Defendants 3 and 4 assail the said finding of the lower appellate court. 10. Learned counsel appearing for the appellant pointed out that going by the tenure of the decree passed by the trial court, it is clear that liability is joint and R.S.A No.387 of 2010 4 inseparable. Since the legal heirs of the deceased 1st and 2nd defendants were not impleaded the appeal has abated. The decree being the against the dead persons is void and unenforceable. 11. Though the arguments may look very attractive, it is without any substance whatsoever. Suit was filed for compensation as well as mandatory injunction on the basis of the acts committed by the defendants jointly and severally. The liability cast by the decree is joint and several. The decree is clearly severable. Even assuming that the decree against defendants 1 and 2 is void that is not so in the case of defendants 3 and 4. The decree holder is free to execute the decree against them or all. Therefore, there is no abatement of the whole suit. 12. Learned counsel appearing for the appellant submits that in case the decree holder proceeds against the appellants, they may not have any remedy against defendants 1 and 2 before the Sub Court. That question need not be answered now. Even assuming it to be so, that is not a ground to hold that decree is unenforceable as R.S.A No.387 of 2010 5 against defendants 3 and 4. Appeal is without merits and is accordingly dismissed. No order as to costs. P.BHAVADASAN, JUDGE ma R.S.A No.387 of 2010 6