IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 RSA.No. 1203 of 2008() ---------------------- AS.54/2003 of SUB COURT, THIRUVALLA OS.282/1996 of MUNSIFF'S COURT, THIRUVALLA .................... APPELLANTS/APPELLANTS 5 & 6 PLAINTIFFS 6 & 7 --------------------------------------------------------- 1. RACHEL GEORGE, P.O.BOX NO.2015, SALMIA, KUWAIT - 23021 FROM KOCHUPLAMOOTTIL MANALUNKALAYIL HOUSE, KUMBANADU, KOIPRAM VILLAGE, THIRUVALLA TALUK. 2. ANNIE ALEX, VALIYA VEEDU, KARICKOM P.O ANCHAL, KOLLAM, FROM KOCHUPLAMOOTTIL MANALUNKALAYIL HOUSE, KUMBANADU, KOIPRAM VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.SHAJI P.CHALY RESPONDENT(S): RESPONDENT/APPELLANTS 1 TO 4/ DEFENDANT/PLAINTIFFS 2 TO 5 -------------------------------------------------------------- 1. THOMAS P.MATHAI, S/O.EASSO MATHAI, RESIDING AT PADINJATTUKARA VEETTIL, THATTAKKATTU MURI, KOIPRAM VILLAGE, THIRUVALLA TALUK. 2. ELSY JACOB, W/O.LATE JACOB, AGED 74 YEARS, RESIDING AT KUMBANADU, KOCHUPLAMOOTILAYA MANALUNKAL VEEDU, THATTAKKATTU MURI, KOIPRAM VILLAGE, THIRUVALLA TALUK. 3. GEORGE JACOB, AGED 54 YEARS, NOW RESIDING AT SALJARA HOSPITALITY, P.D.O PACNIMR, P.B.NO.81 MUSCAT - 115 FROM KOCHUPLAMOOTTIL MANALUNKALAYIL HOUSE, KUMBANADU, KOIPRAM VILLAGE, THIRUVALLA TALUK REP. BY POWER OF ATTORNEY HOLDER, P.CHANDY, S/O.K.C.PHILIP, KANNAMALA HOUSE, MADATHUMBHAGAM VADAKKEKARA MURI, KALLOOPPARA VILLAGE. R.S.A No. 1203/2008 :2 : 4. ABRAHAM JACOB, DIVISIONAL SALES ENGINEER, A.F.SAFFAR GROUP, P.O.BOX NO.4800, HAWALLY CODE . 32079, KUWAIT FROM KOCHUPLAMOOTTIL MANALUNKALAYIL HOUSE, KUMBANADU, KOIPRAM VILLAGE, THIRUVALLA TALUK. 5. MARY KURUVILA, VAZHAKULAM VEEDU, KUMARAKOM P.O., KOTTAYAM FROM KOCHUPLAMOOTTIL MANALUNKALAYIL HOUSE, KUMBANADU, KOIPRAM VILLAGE, THIRUVALLA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/12/2008, ALONG WITH R.S.A NOS. 1230 & 1231 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. Nos. 1203, 1230 & 1231 of 2008 ========================= Dated this the 15th day of December, 2008. JUDGMENT The legal representatives of the plaintiff in O.S. Nos. 282 and 734 of 1996 on the file of the Munsiff's Court, Thiruvalla are the appellants in all these appeals. Both the suits were instituted by the original plaintiff for injunction restraining the defendants therein from encroaching into the plaint schedule item No.2 way described as 300 feet long and 10 feet wide claimed to be part of the plaint schedule item No.1 admeasuring 2.74 acres belonging to the plaintiff under Ext.A1 Will dated 24.09.1947. The defendant in O.S. No. 282 of 1996 is one Thomas Mathai and the two defendants in O.S. No. 734 of 1996 are a father and son by name John Mathai and Saji. The properties of both Thomas Mathai and John Mathai and his son are situated to the east of the way shown as plaint schedule item No.2. The property of Thomas Mathai is on the north and the property of John Mathai and his son is on the south, but both are on the eastern side of the plaint schedule item No. 2 way running north south. The plaint schedule item No. 1 is situated to the west of plaint schedule item No.2 way and was claimed to be part of the plaint schedule item No.1. In O.S. No. 288 of 1996, Thomas Mathai had filed a counter claim seeking a mandatory injunction to remove the obstruction caused to the northern R.S.A. No. 1203, 1230 & 1231/2008 : 2 : segment of the plaint schedule item No.2 way. 2. Pending suit, the original plaintiff died and the appellants were impleaded as his legal representatives. Both the courts have held that the plaintiff did not take out a survey commission so as to substantiate his contention that plaint schedule item No.2 way is part of a plaint schedule item No.2 and therefore, the plaintiff had no right to seek a perpetual injunction restraining the defendants from encroaching into the plaint schedule item No.2 or putting up construction etc. thereon. Since the northern segment of the plaint schedule item No.2 way was obstructed by dumping rubbles, the courts below decreed the counter claim made by the defendant in O.S. No. 288 of 1996 directing the plaintiffs to remove the obstruction. It is the decree passed in the counter claim which is assailed in R.S.A. No. 1231 of 2008 whereas the other two appeals are against the dismissal of two suits O.S. Nos. 288 and 734 of 1996. 3. In as much as the courts below have concurrently held that the plaintiff has failed to establish his title over the plaint schedule item No.2 claimed as part of plaint schedule item No.1, the refusal to grant the perpetual injunction sought by the plaintiff cannot be faulted. Similarly, the decree of mandatory injunction granted in the counter claim by the defendant in O.S. No. 288 of R.S.A. No. 1203, 1230 & 1231/2008 : 3 : 1996 also does not call for any interference, since the plaintiff who had failed to establish his right over the plaint schedule item No.2 way had no right to cause obstruction to the said way. No question of law, much less any substantial question of law arises for consideration in these appeals. The questions of law formulated in the memoranda of appeals also do not arise for consideration in these Second Appeals which are accordingly dismissed in limine. It is, however, made clear that the dismissal of the two suits and the grant of the decree for mandatory in the counter claim will not preclude the plaintiff from filing a properly constituted suit on title, if so advised. Dated this the 15th day of December, 2008. V. RAMKUMAR, JUDGE. rv R.S.A. No. 1203, 1230 & 1231/2008 : 4 :