IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 RSA.No. 690 of 2003(F) --------------------------- AS.18/2001 of ADDL.SUB COURT, KOCHI OS.43/1966 of PRL.MUNSIFF COURT., KOCHI .................... SECOND APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------- P. STANLY JOHN, AGED 49, S/O. LATE P.C. JOHN, RESIDING AT 1/1244, CHIRATTAPALAM, FORT KOCHI VILLAGE, KOCHI-1. BY ADV. SRI.S.K.BRAHMANANDAN SRI.G.SREENIVASA PRABHU SRI.S.B.PREMACHANDRA PRABHU RESPONDENTS: RESPONDENTS/DEFENDANTS: --------------------------------------------------- 1. MAXIE JOHN, AGED 42, S/O. LATE P.C. JOHN, DOOR NO.1/1114, KUNNUMPURAM, FORT KOCHI VILLAGE, KOCHI TALUK. 2. P. CLEETUS JOHN, AGED 46, S/O. LATE P.C. JOHN, RESIDING AT C.C.1/1113, 'SKY VIEW', KUNNUMPURAM, FORT KOCHI VILLAGE, KOCHI-1. R1 BY ADV. SRI.SAJAN MANNALI SRI.M.P.JAYAKUMAR SMT.SUMEEDA. M.S R2 BY ADV. SRI.JOSE J.MATHAIKAL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. --------------------------------------------------- R.S.A. No 690 of 2003 -------------------------------------------------- Dated this the 30th May 2008 JUDGMENT Heard counsel on both sides. 2. This appeal is by the plaintiff who has lost concurrently in both the courts below. He filed O.S. No 43 of 1996 before the Munsiff's Court, Kochi for a decree of injunction, both prohibitory and mandatory, inter alia, on the allegation that the plaintiff and defendants are brothers, that plaintiff and second defendant obtained possession of the schedule property as per compromise order dated 6.12.1994 in O.P. No 265 of 1991 on the file of this court, that from that date onwards the executorship came to an end and the plaintiff and defendants became absolute owners in possession of the properties set apart to them as per the Will executed by their father, that the plaintiff and second defendant were out of India and when the plaintiff came back to India on 23.12.1994 he knew that the first defendant has without his knowledge and consent put up boundary wall separating the five cents allotted to the plaintiff and second defendant, that the first defendant had been allotted the family house in which he is residing along with his mother, that after the compromise order the first defendant constructed wall on the southern and eastern side of RSA 690/03 2 plaint schedule property in such a way as to block the ingress and egress to the plaint schedule property through the eastern gate and also encroaching upon the plaint schedule property and reducing portions thereof to his possession, that the plaintiff and second defendant are entitled to right of way through the first defendant's property through the existing gate of 8' width on the east to reach the public road, that there is no other pathway available to the plaintiff for access to the schedule property, that the second defendant is arrayed as defendant as he was not available to sign the plaint; that the first defendant is liable to remove the boundary wall and is also not entitled to obstruct the pathway and the right of pathway available for the plaintiff ;has to be declared and mandatory injunction has to be granted directing removal of wall put up by the first defendant and restraining him from causing any obstruction to the pathway. 3. The first defendant resisted the suit contending that the suit is not maintainable; that the plaintiff and second defendant are not in good terms with the first defendant, that there is no dispute regarding the respective rights of the plaintiff and the first defendant as per the Will, that plaintiff has put up boundary wall long before the order of this court and that would be clear from the plaint in O.S. No RSA 690/03 3 14 of 1991, that the first defendant is entitled to put up boundary wall across his property separating the five cents of property of the plaintiff and second defendant, that the southern and eastern compound wall mentioned in the plaint was constructed along with the boundary of the first defendant's properties, that he is not liable to provide passage for ingress and egress to the plaint schedule property and the plaintiff or the second defendant has no such right; that there is road on the northern side of the plaint schedule property, that the first defendant has not encroached upon the plaint schedule property, that the plaintiff and second defendant are having access to the schedule property from the northern side and the said pathway was available for access to the said property even in 1996 during the lifetime of the father and that the plaintiff has no cause of action and the suit has to be dismissed. 4. On the above pleadings the trial court raised necessary issues for trial and considering the evidence adduced in the case which consisted of oral evidence of P.Ws 1 and 2 and D.Ws 1 and 2 and documentary evidence of Exts A1 to A4, B1 to B10 and C1 to C3(a) dismissed the suit finding that the plaintiff is not entitled to right of pathway through the property of the first defendant as claimed and RSA 690/03 4 that inasmuch as the allegation is that the boundary wall is put up encroaching into the portions of schedule property, without a prayer for recovery of the portion encroached upon, the plaintiff is not entitled to a decree of mandatory injunction for demolition and removal of the boundary wall put up so as to have recovery as well indirectly without a prayer in that behalf. A.S. No 18 of 2001 filed by the plaintiff assailing the dismissal of the suit by the trial court was also dismissed by the first appellate court concurring with the judgment and decree of the trial court. Hence this appeal by the defeated plaintiff against the concurrent findings of the courts below. 5. After advancing vehement arguments on the merits of the case and finding that there is absolutely no question of law available to be canvassed in the case, counsel for the appellant-plaintiff submitted that this R.S.A be dismissed but without prejudice to the rights of the plaintiff to institute appropriate suit for recovery of portions of the schedule property reduced to the possession by the first defendant by putting up boundary wall encroaching into the portions thereof. I heard the counsel for the first respondent as well. In the nature of the disposal of the case by the courts below refusing to grant mandatory injunction prayed for, it is only just and RSA 690/03 5 proper that right is provided to the plaintiff to file suit afresh to have recovery of portions of schedule property, if any, trespassed upon by the first defendant in the process of putting up boundary wall which is sought for to be got demolished and removed by a decree of mandatory injunction prayed for in the present suit. 6. In the result, I dismiss this R.S.A but without prejudice to the rights of the appellant-plaintiff to file appropriate suit for recovery of portions of schedule property, if any, trespassed upon and reduced to the possession of the first respondent by putting up compound wall separating the schedule property from his property which boundary wall is sought to be got demolished by a mandatory injunction prayed for in the present suit. Sd/- K.P. BALACHANDRAN Judge 30/05/2008 en [true copy]