IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 RSA.No. 478 of 2010() --------------------- AS.208/2006 of II ADDL. DISTRICT COURT, PALAKKAD OS.734/2003 of MUNSIFF COURT, ALATHUR .................... APPELLANT/APPELLANT/PLAINTIFFS: -------------------------------------------------- 1. GURUVAYOORAPPAN, SON OF SUNDARA MUTHALI, KODUMBU AMSOM, AND DESOM, PALAKKAD TALUK. 2. GOPALAN, S/O OF DO. RESIDING AT DO. 3. MANIKANDAN, DO. DO. DO. 4. RAKKAMMA, W/O.SUNDARA MUTHALI, RESIDING AT DO. DO. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ------------------------------------- 1. RUGMINI, W/O.ANNAMALA MUTHALI, NAGERE KOVIL STREET, THERUVEEDHI (WEST), KODUMBU AMSOM AND DESOM, PALAKKAD TALUK. 2. VIJAYARAGHAVAN, DO. DO. DO. 3. RAJENDRAN, DO. DO. DO. 4. AANANDAN, DO. DO. DO. ADV. SRI.K.RAMESH FOR R1, 2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON 21/12/2010 DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.478 OF 2010 (F) ----------------------------------- Dated this the 21st day of December, 2010 J U D G M E N T Plaintiffs in a suit for fixation of boundary and permanent prohibitory injunction, are the appellants. Both the courts below have concurrently held that the plaintiffs are not entitled to the reliefs canvassed for, mainly basing that conclusion on a decision rendered in a previous suit as between the parties. Challenging the correctness of the decision so rendered non-suiting the plaintiffs as unsustainable under law and fact, the appeal is preferred. 2. Notice being given to consider the admissibility of the appeal, the respondents have entered appearance. I heard the counsel on both sides. Plaint 'A' schedule property belongs to the plaintiffs and plaint 'B' schedule to the defendants, and both of them are lying contiguously without any demarcating boundaries, was the case of the plaintiffs. Plaint 'B' schedule R.S.A.NO.478/2010 2 property lies on the east and south of plaint 'A' schedule and fixation of the boundaries of plaint 'A' schedule with that property on both sides and a perpetual prohibitory injunction against the defendants from interfering with the possession and enjoyment of the plaintiffs over plaint 'A' schedule, was applied for in the suit. There was obstruction from the defendants to the plaintiffs in putting up fences on the eastern and southern boundaries of plaint 'A' schedule was the ground canvassed for to seek the above reliefs under the suit. Reference was also made to a previous suit between the parties, wherein, the 1st plaintiff herein as the next friend of his father had instituted such suit for recovery of possession of a portion of the property from the defendants and negativing of that suit claim by the lower appellate court after a decree was initially passed by the trial court. The defendants resisted the suit claim contending that plaintiffs had no title and possession over the entire property described under plaint 'A' schedule and the suit claims are barred by estoppel and res judicata in view of the decision rendered in the previous suit. Suit has been filed to annex a portion of that pathway used by the defendants on the eastern R.S.A.NO.478/2010 3 side of the property described as plaint 'A' schedule and the plaintiffs have no right to put up a fence as canvassed for on the east and south of the property claimed by them as plaint 'A' schedule, was the case of the defendants. On the materials placed, which consisted of PW1 and Exts.A1 to A5 for the plaintiffs and DW1 for the defendants, the trial court concluding that the plaintiffs have failed to prove their right over the entire plaint 'A' schedule property described in the suit held they are not entitled to the reliefs canvassed for and dismissed the suit. In the appeal preferred by the plaintiffs, the lower appellate court, after re-appreciation of the materials tendered, concurring with the findings entered by the trial court affirmed the dismissal of the suit. As against the concurrent decision so rendered, the plaintiffs have preferred this appeal. 3. The learned counsel for the appellants/plaintiffs submitted that both the courts have gone wrong in negativing the suit claims holding that the suit is barred by res judicata. Previous suit was one for recovery of possession, and in the present suit, relief was canvassed for on the basis of the R.S.A.NO.478/2010 4 identification made under the report and plan prepared by the advocate commissioner for fixation of the boundaries of plaint 'A' schedule property and for injunction in the earlier suit, and so much so, there was no bar of res judicata, is the submission of the counsel. In the previous suit, a portion of the plaintiffs' property was sought to be recovered and that was declined. Excluding that portion, plaint 'B' schedule in the previous suit, which was identified in Ext.A5 plan, in the present suit, fixation of boundary with the property of the defendants was sought for on the south of plaint 'A' schedule, along with the fixation of the eastern boundary, both of which had been identified in Ext.A5 plan. The claim so raised by the plaintiffs seeking a decree of perpetual prohibitory injunction against the defendants was not properly appreciated by both the courts below and the suit of the plaintiffs was wrongly dismissed, is the submission of the counsel. Per contra, no material other than Ext.A5 plan was produced by the plaintiffs to sustain the decree sought for, is the submission of the learned counsel for the respondents contending that when the title of the plaintiffs over the property described as plaint 'A' schedule had been found against in the R.S.A.NO.478/2010 5 previous suit for recovery of a portion of such property, the present suit, as rightly and correctly found by both the courts, is barred by res judicata. The attempt of the plaintiffs, according to the counsel, is to annex portions of a pathway enjoyed by the defendants on the east of the plaintiffs' property seeking fixation of the boundary of plaint 'A' schedule describing that property as in the previous suit. Perusing the judgments, I find irrespective of the question whether the present suit is barred by res judicata, in view of the decision rendered in the earlier suit by which recovery of possession of a portion of the plaint property allegedly belonging to the plaintiffs was turned down and such suit dismissed, the question is whether the plaintiffs have tendered any material to sustain the reliefs canvased in the suit. The only material produced by them was Ext.A5 plan other than a copy of their title deed and judgment and decrees in the previous suit, to sustain the suit claim for fixation of boundary and permanent prohibitory injunction. Ext.A5 plan was prepared by the commissioner with his report filed in the previous suit. That suit was dismissed. Even assuming that the report and plan prepared by the advocate commissioner had been exhibited in R.S.A.NO.478/2010 6 evidence, its correctness and binding force as against the defendants, who were parties in the previous suit also, necessarily has to be examined afresh in the present suit by examining the advocate commissioner, who prepared that report and plan. Whether there was proper identification of the proprieties of the plaintiffs and also that of the defendants as under the previous report and plan tendered in the earlier suit, which had been dismissed, deserve scrutiny to consider the entitlement of the plaintiffs for the reliefs canvassed in the present suit. What is evident from the materials tendered, as correctly found by the learned Munsiff, is that the plaintiffs have not established their title and possession over plaint 'A' schedule property and also for demarcating the southern and eastern boundaries of such property, to have a decree for fixation of the boundaries and injunction against the defendants. Solely on the basis of Ext.A5 plan prepared in the previous suit in which an adverse decision was rendered against the plaintiffs declining the claim for recovery of possession from the defendants, the plaintiffs cannot ask the court to accept that plan as sufficient to fix the boundaries of plaint 'A' schedule property described by R.S.A.NO.478/2010 7 them in the suit. The plan prepared by the commissioner in the previous suit when such suit had been dismissed cannot have any binding force on the defendants. May be it has got some evidentiary value, but, it cannot be considered as decisive and binding on the defendants. In the incomplete data of evidence let in by the plaintiffs, and especially in the backdrop of the dismissal of their previous suit as against the defendants, the dismissal of the present suit with both the courts below holding that the plaintiffs are not entitled to the reliefs canvassed for, does not warrant any interference at all. Appeal is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.478/2010 8