IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 SA.No. 545 of 1999(F) --------------------- AS.31/1992 of ADDL.SUB COURT, IRINJALAKUDA OS.1655/1988 of PRL.M.C., IRINJALAKUDA .................... APPELLANT(S)/APPELLANTS/PLAINTIFFS :- --------------------------------------------------------------- 1. RUGMINI, D/O.CHOLIPARAMBIL KUNJAPPAN AND WIFE OF LATE CHERAMPARAMBIL MANIKKAN, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. 2. PUSHPAVENI, W/O.THAYYIL SUBRAMANIAN, AND D/O.FIRST APPELLANT, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.RENJITH THAMPAN RESPONDENT(S)/RESPONDENTS/DEFENDANTS :- ---------------------------------------------------------------------- 1. KUTTAPPAN, S/O.AMBALATHARA VELAPPAN, KODAKARA VILLAGE, KODAKARA DESOM, MUKUNDAPURAM TALUK. 2. JANAKI, D/O.PANIKKATTIL VELAYUDHAN AND WIFE OF 1ST RESPONDENT, KODAKARA VILLAGE, KODAKARA DESOM, MUKUNDAPURAM TALUK. ADV. SRI.B.JAYASANKAR SRI.K.S.SREEKUMAR SRI.GEORGE VARGHESE PERUMPALLIKATTIYIL FOR R 1 & 2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt P.BHAVADASAN, J. ----------------------------- S.A. No.545 of 1999-F --------------------------------- Dated this the 1st day of July 2011 J U D G M E N T The plaintiffs in O.S.No.1655 of 1988 of the court of Prl. Munsiff, Irinjalakuda, who suffered decrees at the hands of both the courts below are the appellants. 2. According to the plaintiffs, the plaint schedule property forms part of the properties obtained by the husband of the 1st plaintiff and father of the 2nd plaintiff as per sale deed No.944/1119. Along the southern boundary of the plaint schedule property, a private pathway belonging to the defendants runs and that pathway ends in the property belonging to them. There exists a boundary separating the plaint schedule property from the way and the property belonging to the defendants and the said boundary was maintained by fixing hedge stakes and putting up fence from ancient times by the plaintiffs. The S.A. No.545 of 1999-F -: 2 :- plaintiffs are not able to put up fence on the southern boundary due to the obstruction of the defendants. On the allegation that the defendants are causing obstruction from putting up a fence on the southern boundary of the plaint schedule property and attempting to trespass into the suit property, the suit was laid. 3. The defendants resisted the suit. They pointed out that the plaintiffs have no right or possession over the plaint schedule property, which belongs to one Geetha, daughter of the first plaintiff and sister of the second plaintiff. The way belonging to the defendants is lying on a much higher level than the property belonging to the plaintiffs. The defendants also contended that the plaintiffs have no right and possession over the said boundary and as per custom the northern and eastern boundaries belong to the owner of the property on the southern side and the northern boundary is maintained by them. In the written statement, it is specifically stated that they have no intension to S.A. No.545 of 1999-F -: 3 :- trespass into any portion of the property and also prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 and A2 from the side of the plaintiffs. The defendants had DW1 examined. On an evaluation of the evidence, both the courts below found that the plaintiffs have no possession over the southern boundary and is sufficient to show that the apprehension is untrue. Accordingly the suit was dismissed and it was confirmed in the appeal. 5. Before this Court, the learned counsel for the appellants pointed out that on the southern and eastern sides of the plaint schedule property there is a private pathway of width 12 links belonging to the defendants. The defendants are claiming a falling of width of 16 links and that shows the apprehension of the plaintiffs is true. 6. There is no basis for the above contention. The S.A. No.545 of 1999-F -: 4 :- Commissioner's report is clear to the effect that the pathway lies 4 feet higher in level than the plaint schedule property. The evidence also shows that there is barbed wire fencing along the southern boundary of the pathway. 7. Further, the defendants in no less terms have asserted that they had not trespassed into any portion of the plaintiffs' property and they have no such intension also. 8. The learned counsel for the respondents made it clear that the respondents have no intention to trespass into plaintiffs' property and that submission have been recorded. In the result, the submission is recorded and the appeal stands dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. Jvt