IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 SA.No. 247 of 2000(D) --------------------------- AS.272/1991 of ADDL.DISTRICT COURT,KOTTAYAM OS.25/1988 of MUNSIFF COURT, VAIKOM .................... APPELLANT(S):APPELLANTS/DEFENDANTS -------------------------------------------------- 1. VELU RAGHAVAN, KEERIMUKALEL HOUSE, VALACHIRAKARA, KADUTHURUTHY VILLAGE. 2. BABU, S/O. PAPPU, NJARAKKATTU HOUSE, VALACHIRA KARA, KADUTHURUTHY VILLAGE. 3. RAVI, S/O. NARAYANAN,NJARAKKATTU HOUSE, VALACHIRA KARA, KADUTHURUTHY VILAGE. BY ADV. SMT.I.SHEELA DEVI RESPONDENT(S):RESPONDENT/PLAINTIFF -------------------------------------------------- ABRAHAM MATHEW, NADACKAL HOUSE, VALACHIRA KARA, KADUTHURUTHY VILAGE. BY ADVS. SRI.JOSHY N.THOMAS SRI.SHAJI JOSEPH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/06/2011 , ALONG WITH SA NO. 248 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ---------------------------- S.A.Nos. 247 & 248 of 2000 --------------------------------- Dated this the 20th day of June, 2011 JUDGMENT Two suits namely O.S.No.22/1988 and O.S.No.25/1988 were disposed of by a common judgment dated 28.08.1991 before the Munsiff's Court, Vaikom, whereby the suits were decreed in favour of the respective plaintiffs. The defendants in O.S.No.22/1988 carried the matter in appeal as A.S.No.272/1991 and plaintiffs in O.S.25/1988 carried the matter in appeal as A.S.No.273/1991 before the District Court, Kottayam. Both the appeals were dismissed. The parties and facts are hereinafter referred to as they are available before the trial court. S.A.No.247/2000 is against the judgment and decree in O.S.No.22/1988 and S.A.No.248/2000 is against the judgment and decree in O.S.No.25/1988. 2. The plaintiffs in O.S.No.22/1988 claimed title to the suit property by virtue of Exts.A1 and A4 dated 11.4.1973 and 22.08.1979 respectively. There was a way in between those properties. The grievance of the plaintiffs was that the defendants tried to widen the pathway after demolishing the compound wall S.A.Nos. 247 & 248 of 2000 2 and the Kayyala that separated the pathway from their property. The suit was laid for injunction. Subsequent to the suit the defendants destroyed the Kayyala and widened the pathway to an extent of 12 feets. Hence, they amended suit claiming mandatory injunction. 3. The defendants resisted the suit. According to them, the description of the plaint schedule property and the pathway shown in the plaint is incorrect. Defendants have no intention to widen the pathway. The suit is laid with oblique motive because of the reason that defendants are using the pathway. The plaintiffs are not entitled to any relief as against them. They prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 5 and Exts.A1 to A4 marked from the side of the plaintiffs. Defendants had DWs 1 to 6 examined and Exts. B1 series marked. Exts.C1 to C4 are the commissioner's reports and plans. Mainly based on the commissioner's report, the trial court came to the conclusion that the allegations are true and granted S.A.Nos. 247 & 248 of 2000 3 decrees as prayed for in the suit. 5. The trial court also found that the defendants are guilty of violation of the order of injunction issued against them. The aggrieved defendants carried the matter in appeal as also preferred appeal against order for violation of injunction. The lower appellate court confirmed the judgment and decree of the trial court and dismissed both the appeals. 6. Notice is seen issued on the following substantial questions of law: 1. Is not the finding of the lower appellate court that the appellants are bound to restore the kayyalas and pay damages perverse in view of its finding that the appellants did not personally demolish the kayyalas in the connected C.M.A.? 2. Is not the issuance of the decree for mandatory injunction and for payment of damages plainly untenable in view of the finding of the lower appellate court that appellants at the time of demolition of the kayyalas were under treatment in a Government hospital ? 7. The learned counsel appearing for the appellants pointed out that there is nothing to show that the defendants had any S.A.Nos. 247 & 248 of 2000 4 intention to widen the pathway. Even if any damages are caused to the compound wall of the kayyala of the property, there was no evidence that it was done by the defendants. 8. Though the argument looks very formidable, they can be seen to be without any basis whatsoever. On going through the commission report and the evidence in the case, the reports before and after the alleged act, clearly indicate that the way was widened and the apprehended danger turned out to be true. The defendants had a case that it was done under the leadership of the Panchayat Member Sunny and the former Panchayat member Mathew was also present. But there was no evidence regarding the same. It is also important to notice that the lower appellate court has observed in paragraph 8 of its judgment that at the time of hearing of the appeal before the lower appellate court not much concern was expressed regarding the merits of the appeal from the decree in the suit and the only contention was that there was no evidence to show that it was they who have done the act. That was found against by the lower appellate court also. It appears from a reading of the judgment of the lower S.A.Nos. 247 & 248 of 2000 5 appellate court that emphasis was more on the appeal against the order in the interlocutory application filed for violation of injunction where the defendants were found liable. 9. Whatever that be, both the courts below have considered the evidence in considerable detail and have come to the conclusion that the mischievous act could have been done only by the defendants. At any rate, the conclusion arrived at by the courts below are based on appreciation of evidence on record and are questions of fact. No substantial question of law arises for consideration in these appeals. These appeals are without any merit and accordingly they are dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln