IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 RSA.No.954 of 2008 (E) ---------------------------- AGAINST THE ORDER IN A.S.41/2005 IN A.S.37/2005 of PRL.SUB COURT,IRINJALAKUDA OS.1011/2001 of PRL.M.C.,IRINJALAKUDA .................... APPELLANTS/RESPONDENTS 2 TO 6 AND 8/DEFENDANT NO.2 AND THE LEGAL HEIRS OF DECEASED DEFENDANT NO.1 --------------------------------------------------------------------- 1. ASOKAN, S/O.KOCHAKKAN, KORATTIKKATTIL HOUSE, KIZHUTHANI DESOM,KARALAM VILLAGE, MUKUNDAPURAM TALUK. 2. BHAVI, W/O RAGHAVAN, KORATTIKATTIL HOUSE, KIZHUTHANI, KARALAM VILLAGE, MUKUNDAPURAM TALUK. 3. SUANANDA, W/O. THEYANKOODAN GOVINDAN, MOOTHRATHIKARA,PARAPUKARA VILLAGE, MUKUNDAPURAM TALUK. 4. SUSEELA, W/O. ANANDAN, PULIYATHUPARAMBIL HOUSE, PARAPUKARA VILLAGE, MOOTHRATHIKARA,' MUKUNDAPURAM TALUK. 5. SUMA, W/O. RAVEENDRAN, PANAPARAMBIL HOUSE KARALAM VILLAGE,MUKUNDAPURAM TALUK. 6. SUCHITRA, D/O RAGHAVAN, KORATTIKATIL HOUSE, KARALAM VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.JAMES MATHEW RSA.No.954 of 2008 (E) -2- RESPONDENTS/APPELLANT & RESPONDENT NO.7/PLAINTIFF: ------------------------------------------------------------------------- 1. VELAYUDHAN AGED 58 YEARS, S/O. KOCHAKKAN, KORATTIKATTIL HOUSE, KIZHUTHANI DESOM, KARALAM VILLAGE,MUKUNDAPURAM TALUK. 2. AJAYAN, S/O. RAGHAVAN, KORATTIKATTIL HOUSE, KARALAM, MUKUNDAPURAM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.954 of 2008 ------------------------------------------------ Dated this the 20th day of February, 2009 JUDGMENT The second defendant as also the legal heirs of deceased first defendant are the appellants herein. The plaintiff is the first respondent. One of the L.Rs of the first defendant who was the seventh respondent in A.S.41/05 filed before the first appellate court is also impleaded as second respondent in this R.S.A. 2. The first respondent/plaintiff instituted O.S.1011/01 before the Munsiff's Court, Irinjalakuda for fixation of boundary of 'A' and 'B' schedule properties belonging respectively to plaintiff and the defendants and having an extent of respectively 35.933 and 26.50 cents; for recovery of possession of 'C' schedule portion of 'A' schedule property wherein the defendants trespassed and put up a R. S. A. No.954 of 2008 -2- motor shed near the well and for mandatory injunction seeking removal of the said motor shed installed in plaint 'A' schedule property. The defendants resisted the suit contending that there is clear boundary now in existence demarcating plaint 'A' and 'B' schedule properties; that there is no cause of action for the plaintiff; that they never destroyed the boundary trees; that the motor shed is constructed in the defendant's property itself; that they never trespassed upon the 'C' scheduled property and that the suit has to be dismissed. 3. The trial court raised necessary issues for trial on the basis of the above pleadings and considering the evidence adduced at trial which consisted of oral evidence of PW.1 and DWs.1 to 3 and documentary evidence Ext.A1 to A3 and Exts.C1 and C1(a) decreed the suit fixing the boundary demarcating 'A' and R. S. A. No.954 of 2008 -3- 'B' schedule properties as shown in Ext.C1(a) plan appended to the decree; directing the defendants to surrender possession of 'C' schedule portion of the property within one month and allowing the plaintiff to execute the decree in case of their failure so to do and declaring that the plaintiffs and defendants are entitled to draw water from the well in the scheduled property; ordering that the boundary will be fixed excluding the motor shed and disallowing the mandatory injunction prayed for. Against the decree so passed by the trial court defendants filed A.S.37/05 and the plaintiff filed A.S.41/05 before the first appellate court. The first appellate court vide its common judgment in the appeals dt.12/06/08 dismissed A.S.37/05 filed by the defendants/appellants and allowed the appeal filed by the plaintiff granting mandatory injunction directing the defendants to remove R. S. A. No.954 of 2008 -4- the motor shed in plaint 'C' schedule property within two months and directing that in case of failure the plaintiff shall be entitled to get it removed through court. The decree of the trial court was confirmed in all other respects. It is against the said decree that this R.S.A has been preferred by the second defendant and L.Rs of the deceased first defendant. 4. The learned counsel for the appellant strenuously argued to have the R.S.A admitted contending that there is no demarcation of the portion where the motor shed is constructed in the Commission Report and plan; that therefore, the decree lacks clarity and is not executable and that the decree therefore, deserves to be set aside. It is further contended that the existing boundary has not been tampered with by the defendants and that therefore, there was no necessity to grant a R. S. A. No.954 of 2008 -5- decree for putting up of boundary. 5. All contentions that were advanced on the facts of the case were found to be incorrect concurrently by the courts below. The contention that the Commission Report and plan does not show the portion where the motor shed is installed has been advanced without producing Ext.C1(a) plan appended to the trial court decree. However, from the decree passed by the first appellate court, it is clear that the motor shed is in plaint 'C' schedule property recovery of which has been allowed. 'C' schedule portion is only a small bit of land on the south-eastern corner of 'A' schedule property and there will not be any difficulty in locating that plot. The existence of a well is also not in dispute and the trial court has allowed water being drawn by both parties from the said well. There is absolutely no lack of clarity in the decree R. S. A. No.954 of 2008 -6- passed by the courts below and the substantial question of law attempted to be formulated are not even questions of law and much less any substantial question of law. There is no merit in this R.S.A. 6. In the result, I dismiss this R.S.A in limine. K.P.BALACHANDRAN, JUDGE kns/-