IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 RSA.No. 84 of 2009() -------------------- AS.164/2001 of DISTRICT COURT, THALASSERY OS.410/1997 of .MUNSIFF COURT, KANNUR .................... APPELLANT/APPELLANT/DEFENDANT --------------------------------------------------- A.LAKSHMI, W/O.LAKSHMANAN, AGED 55 YEARS, NITHYANANDA, ELAYAVOOR AMSOM, KIZHUTHALLI DESOM, KANNUR. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENTS: APPELLANTS/DEFENDANTS ----------------------------------------------------------- 1. MELAKANDY NARAYANI (DIED), SUPPLEMENTAL RESPONDENTS. 2. MELEKANDY RAJAN, S/O.KRISHNAN, AGED 48 YEARS, EMPLOYEE, RESIDING AT MELEKANDY HOUSE, KOTHU KUNNUMBRAM, MAWANCHERRY POST, KANNUR DIST. 3. MELEKANDY RAMAKRISHNAN, S/O.KRISHNAN, AGED 45 YEARS, RESIDING AT -DO- EMPLOYEE. 4. MELEKANDY VANAJA, D/O.KRISHNAN, AGED 44 YEARS, EMPLOYEE, RESIDING AT -DO- 5. MELEKANDY CHANDRAN, S/O.KRISHNAN, AGED 42 YEARS, EMPLOYEE, RESIDING AT -DO- 6. MELEKANDY LALITHA, D/O.KRISHNAN, AGED 39 YEARS, RESIDING AT -DO- 7. MELEKANDY MOHANAN, S/O.KRISHNAN, AGED 28 YEARS, NO OCCUPATION. 8. MELEKANDY SAJEEVAN, S/O.KRISHNAN, AGED 34 YEARS, RESIDING AT -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/07/2009, ALONG WITH RSA NO. 156 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.Nos. 84 & 156 of 2009 ---------------------------------------- Dated this the 2nd day of July, 2009 JUDGMENT The Second Appeals are filed challenging the common decree and judgment in A.S. 53/1996 and 164/2001 on the file of the District Court, Thalasseri which arises from O.S. Nos. 610/1991 and 410/1997 respectively on the file of the Munsiff's Court, Kannur. O.S. No. 610/1991 is a suit filed by the appellant herein as plaintiff for permanent perpetual injunction to restrain the defendant and his men from trespassing into the plaint schedule property . O.S. 410/1997 is filed by the defendants herein as plaintiffs for fixation of boundary as well as mandatory and prohibitory injunction. The plaint schedule property in O.S. No. 610/1991 and O.S. No 410/1997 are lying contiguously. So the plaintiffs (defendants herein)instituted O.S. No.410/1997 for fixation of boundary in between two properties mentioned in the suits and for mandatory and prohibitory injunction. O.S. No. 610/1991 was decreed by the trial court but reversed in appeal by the lower appellate court. O.S. No. 410/1997 was decreed in part by the trial court, by granting prohibitory injunction and by fixing the eastern boundary shown as AB line in Ext.C2 plan and confirmed in appeal by the lower appellate court. Being aggrieved by the common judgment and decree passed in the respective appeals the present Second Appeals are filed by the plaintiff in O.S. No. 610/1991.The parties hereinafter referred to as appellant and respondents as arrayed in the Second Appeals. 2. The learned counsel for the appellant contended that the R.S.A No. 84 of 2009 -2- & R.S.A. No. 156 of 2009 lower appellate court erred in relying on Exts. C1 report and C2 plan in O.S No. 410/1997, to arrive at a different conclusion without relying on the evidence adduced in O.S. No. 610/1991, that the lower appellate court failed to note that the evidence in O.S. No. 410/1997 could not be construed or interpreted to arrive at a finding in A.S. No. 53/1996 as O.S. No. 410/1997 was filed deliberately to upset the finding in O.S No. 610/1991. According to the learned counsel the identification of the property by the Commissioner is not correct and the reversal of the trial court's decree in O.S. No. 610/1991, by the lower appellate court is bad in law. 3. The appellant herein also raised almost the same grounds in R.S.A No. 156 of 2009 , regarding the findings of the lower appellate court in A.S. No. 164/2001 which arises from the decree and judgment in O.S. 410/1997 4. I have gone through the findings of the trial court in both suits and the findings of the lower appellate court in the appeals. The lower appellate court considered the oral and documentary evidence adduced by both sides in O.S No. 410/1997 and the documentary evidence adduced by the parties in O.S. No. 610/1991. After elaborately discussing the entire evidence on record and Exts. C1 report and C2 plan submitted by the Commissioner, the lower appellate court concluded that the plot identified as per Exts.C1 and C2 in O.S. No. 410/1997 is a proper identification of the property especially when S1 and S2 , the two survey stones indicated the exact survey boundary line on the eastern side. In the light of the said findings the lower appellate court confirmed the trial R.S.A No. 84 of 2009 -3- & R.S.A. No. 156 of 2009 courts' judgment in O.S. No. 410/1997. 5. The lower appellate court found that in the judgment in O.S. No. 610/1991, the trial court rightly negatived the relief of mandatory and perpetual injunction for valid reasons. According to the learned District Judge, evidently, a dog shed(kennel) was found along the boundary line AB. It is not a permanent structure and therefore could be demolished at any time and it is not of a structure of any permanent character . There is a platform of a well in the boundary line. This platform is also not a permanent structure. Therefore it could be seen that while fixing the boundary along AB, the removable structures or the temporary structures along the line would not be a bar for the respective party to enjoy the property within the boundary. Reckoning the above aspect, the mandatory and perpetual injunction sought for by the appellant therein was rightly negatived by the lower appellate court. Both appeals are filed against the finding of facts recorded by trial court in both suits. I am of the view that the lower appellate court rightly adjudicated the issues in both appeals. The common judgment and decree of the lower appellate is just and proper and cannot be interfered with. I am of the view that no different view is possible in the Second Appeals. There is no scope for invoking Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in these Second Appeals. These Second Appeals fails and accordingly dismissed in limine (HARUN-UL-RASHID, JUDGE) es.