IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 RSA.No. 266 of 2008() --------------------- AS.98/2002 of ADDL.DISTRICT & SESSIONS (ADCHOC), FAST TRACK COURT -II, PATHANAMTHITTA OS.114/1997 of MUNSIFF COURT, PATHANAMTHITTA .................... APPELLANTS/ RESPONDENTS/DEFENDANTS: ------------------------------------------------- 1. THE INHABITANTS OF MYLAPRA VILLAGE REPRESENTED BY GEORGE SCARIA, AGED 59 YEARS S/O.SCARIA, PALIKKATTU HOUSE, MANNARAKULANJI MURI MYLAPRA VILLAGE, PATHANAMTHITTA. 2. PURUSHOTHAMAN, CHERIVUKALAYIL HOUSE MANNARAKULANJI MURI, MYLAPPORE VILLAGE KOZHENCHERRY. BY ADV. SRI.SEBASTIAN PHILIP RESPONDENTS/ APPELLANTS/PLAINTIFFS:- ---------------------------------------------- 1. THOMAS GEORGE, AGED 46 YEARS S/O.GEORGE, CHIRAKKAKADAVIL HOUSE MANNARAKULANJI MURI, MYLAPARA VILLAGE KOZHENCHERRY TALUK. 2. JOY KUTTY GEORGE, S/O.GEORGE CHIRAKKAKADAVIL HOUSE, MANNARAKULANJI MURI MYLAPARA VILLAGE, KOZHENCHERRY TALUK. ADV. SRI.V.PHILIP MATHEW FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 266 of 2008 ========================= Dated this the 22nd day of January, 2009. JUDGMENT Defendants 1 and 2 in O.S. No. 114 of 1997 on the file of the Munsiff's Court, Pathanamthitta are the appellants in this Second Appeal. The said suit instituted under Order 8 Rule 1 C.P.C was one for a perpetual injunction restraining the defendants and like minded persons from trespassing upon plaint A and B schedule properties belonging to 1st and 2nd plaintiffs respectively and from cutting open a road through the said properties and also for damages for the loss sustained by the plaintiffs due to the wanton acts of the defendants. As mentioned earlier, the suit was instituted in a representative capacity and even though a notice under Order 8 Rule 1 was duly published, except the two appellants/defendants, no other member of the public came forward in opposition of the suit. The defendants contended that they are a fish vendor and a jeep driver and they have not made any attempt to trespass into the plaint schedule property nor had they committed any act of waste as alleged in the plaint. They further contended that a Panchayat road is passing through the R.S.A.No. 266/2008 : 2 : plaint schedule property and the plaintiffs are guilty of suppression of the said Panchayat road. 2. On the side of the plaintiffs, Ext.A1 partition deed was marked and PWs 1 to 4 were examined. On the side of the defendants, the 1st defendant as well as another person were examined as DWs 1 and 2. Exts. B1 and B2 were marked. The Advocate Commissioner deputed by the trial court submitted Ext.C1 report , C1(a) mahazar and C1(b) rough sketch. 3. As per judgment and decree dated 31.07.2002, the learned Munsiff dismissed the suit holding inter alia that the suit was bad for non-joinder of the inhabitants of Mylapra Grama Panchayat who are not represented by the defendants and that the suit was also bad for mis-joinder of parties. On appeal preferred by the plaintiffs, the lower appellate court as per judgment and decree dated 17.03.2007, reversed the decree passed by the trial court and decreed the suit as prayed for. Hence this Second Appeal. 4. The following are the questions of law formulated in the memorandum of Second Appeal:- R.S.A.No. 266/2008 : 3 : i) In a suit for prohibitory injunction is not the court incompetent and lacking jurisdiction to grant a decree overlooking possession of property as on the date of the suit and instead pass a decree for recovery of possession in the absence of a prayer in the suit. ii) Whether the lower appellate courts construed the documents in the correct perspective. Iii) Whether the court below erred in appreciating the plaint averment and evidence adduced in the suit to grant a decree as prayed for? 5. Subsequent to the filing of the Second Appeal, the appellants have filed I.A. No. 187 of 2009 for raising the following additional questions of law:- i) Is not the finding of the lower appellate court vitiated by non- consideration of relevant evidence in as much as by an essentially erroneous approach to this matter when it found that there was no pathway in existence? ii) Is not the lower appellate court went wrong in not discussing the oral and documentary evidence in the case as against the pleadings in the case? iii) Is not the permission given to the plaintiff under Order 1 Rule 8 of Code of Civil Procedure is bad for the reason that the defendants have no common interest with the local residents in the matter of user of the pathway when it is specifically pleaded in written statement that they are not residents of the locality and that they have not cut open any road as alleged in the plaint? iv) Is not the permission under Order 1 Rule 8 of Code of Civil Procedure is vitiated for non-observance of the procedure under Rule 20 of the Civil Rules of Practice? v) In the facts and circumstances of the case, can the decree passed by the lower appellate court bind the general public? R.S.A.No. 266/2008 : 4 : 6. I heard the learned counsel for the appellants who reiterated the contentions of the defendant. 7. The lower appellate court has found that plaintiffs 1 and 2 are the owners of the plaint A and B schedule properties admeasuring one acre and 1.25 acres respectively as per Ext. A1 partition deed dated 18.05.1987 and that the report of the Commissioner deputed by the trial court shows an attempt to cut open through the plaint schedule property a road having a length of 60 feet and width of 8 feet. The defendants have not raised any contention to the effect that they have a right over any part of the plaint schedule property. On the contrary, their contention that they do not represent the local inhabitants of Mylapra Grama Panchayat which found favour with the trial court, was not accepted by the lower appellate court which did not find any defect or infirmity in the frame of the suit or in the publication of the notice under Order 8 Rule 1 C.P.C. As a matter of fact, the appellants/defendants have no property anywhere near the plaint schedule property. Both the trial court as well as the lower appellate court did not award any damages to the plaintiff. As per the appellate decree, the plaintiffs were only granted a perpetual injunction restraining R.S.A.No. 266/2008 : 5 : the defendants and like minded persons from trespassing into the plaint schedule property and cutting open a new road through the same. If the appellants have not attempted to cut open any new road through the plaint schedule property and they have no property anywhere near the plaint schedule property, there was no reason for them to take exception to the decree passed by the lower appellate court. As for the existing Panchayat road passing through the suit property, the plaintiffs cannot be held to be guilty of suppression since what was sought to be interdicted was the cutting open of a new pathway. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of Second Appeal as well as in I.A. No. 187 of 2009 also do not arise for consideration in this Second Appeal and even if they do, they are answered against the appellants. This Second Appeal is dismissed in limine. Dated this the 22nd day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A.No. 266/2008 : 6 : R.S.A.No. 266/2008 : 7 :