IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 RSA.No. 816 of 2009() ----------------------------- AS.129/2001 of II ADDL. DISTRICT COURT, PALAKKAD OS.311/1995 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT(S)/SUPPLEMENTAL DEFENDANTS 6&7: ------------------------------------------------------------------------------------------ 1. RENUKA, W/O. SREEKARAN, AGED 34 YEARS, POTTAKULATHIL VEEDU, KAVILPADU, PALAKKAD TALUK, PALAKKAD DISTRICT. 2. REMYA, D/O. RENUKA, AGED 11 YEARS, MINOR, POTTAKULATHIL VEEDU, KAVILPADU, PALAKKAD TALUK, PALAKKAD DISTRICT, REP.BY RENUKA W/O. SREEKARAN AS GUARDIAN/MOTHER. BY ADV. SRI.BINOY VASUDEVAN RESPONDENT(S)/PLAINTIFFS AND DEFENDANTS 3-5 & LEGAL: ----------------------------------------------------------------------------------------- 1. PAZHANAM @ M.K.SATHYAN, S/O. M.KUNJAN, AGED 52 YEARS, MEETINGAL VEEDU, MUTTIKULANGARA, PALAKKAD. 2. M.K.SAHADEVAN, S/O. M.KUNJAN, AGED 50 YEARS, METTINGAL VEEDU, METTIKULANGARA, PALAKKAD. 3. VELAPPAN, S/O. LATE KESAVAN, AGED 52 YEARS, METTINGAL KALLAPARAMBA VEEDU, DHONI, PALAKKAD. 4. SUNDARAN, S/O. LATE KESAVAN, AGED 50 YEARS, METTINGAL KALLAPARAMBA VEEDU, DHONI, PALAKKAD. 5. VALLIYAMMA,W/O.LATE KESAVAN, AGED 72 YEARS, METTINGAL KALLAMPARAMBA VEEDU, DHONI, PALAKKAD. 6. SUNITHA,W/O.LATE SREENIVASAN, AGED 34 YEARS, VADAKKUMPURAM HOUSE, ERIMAYOOR P.O., PALAKKAD. RSA.No. 816 of 2009 2 7. ANJANA,D/O.LATE SREENIVASAN, AGED 10 YEARS(MINOR), VADAKKUMPURAM HOUSE, ERIMAYOOR P.O.,PALAKKAD DISTRICT, REPRESENTED BY SUNITHA, W/O.LATE SREENIVASAN, AS GUARDIAN/MOTHER. ADV. SRI.U.BALAGANGADHARAN FOR R1& 2 SRI.S.M.UNNIKRISHNAN FOR R1 & 2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.816 of 2009E --------------------------------------- Dated this 10th day of February, 2010 JUDGMENT This second appeal arises from judgment and decree of learned Second Additional District Judge, Palakkad in A.S.No.129 of 2001 modifying judgment and decree of learned Principal Munsiff, Palakkad in O.S.No.311 of 1995. That was a suit for decree for prohibitory and mandatory injunction. According to respondent Nos.1 and 2, property on the immediate west of the suit property belonged to deceased defendant No.1 and the same were separated with a fence which deceased defendant No.1 and others removed on 18-06-1995 by trespassing into the suit property. Respondent Nos.1 and 2 apprehended further trespass into the suit property. Hence the suit for prohibitory injunction to restrain deceased defendant No.1 and other contesting defendants from trespassing into the suit property and for mandatory injunction to direct them to put up fence allegedly removed on 18-06-1995. Deceased defendant No.1 and others contested the suit claiming that description of plaint schedule property is not correct and that so much extent of land referred in the plaint schedule does not belong to respondent Nos.1 and 2. They also denied allegation of trespass and removal of fence. Trial court after consideration of the evidence held that going by Ext.B1, the prior document of title of R.S.A. No.816 of 2009 2 respondent Nos.1 and 2, they are not entitled to that much extent of land as described in the plaint schedule and hence respondent Nos.1 and 2 are not entitled to the mandatory injunction for construction of fence in the way suggested by them. So far as prohibitory injunction is concerned learned Munsiff observed that respondent Nos.1 and 2 being in possession of the property is entitled to that relief and accordingly suit was decreed in part allowing prohibitory injunction. Respondent Nos.1 and 2 did not challenge that part of the judgment and decree which went against them Appellants who are legal representatives of deceased defendant No.1 challenged the decree for prohibitory injunction before learned Second Additional District Judge, Palakkad in A.S.No.129 of 2001. That appeal ended in dismissal. Hence the second appeal. Learned counsel for appellants submits that appellants have filed O.S.No.594 of 2008 in the court of learned Principal Munsiff, Palakkad for recovery of possession of the suit property and that suit is pending for judgment. According to the learned counsel finding of the courts below regarding possession of the suit property is not correct. Learned counsel for respondent Nos.1 and 2 would contend that no substantial question of law is involved and hence the second appeal would not lie. 2. The contention raised by learned counsel on behalf of appellants is based on Ext.B1 the prior document of Exts.A1 and A2 R.S.A. No.816 of 2009 3 under which respondent Nos.1 and 2 claimed to have acquired title and possession of the suit property. Learned counsel was of the view that Ext.B1 does not take in the entire suit property. First appellate court in para 17 of its judgment observed that since both sides are claiming title and possession of the disputed property, evidence in that regard has to be scrutinized to find out the veracity of the claim made (ie. regarding title and possession). After discussing the evidence on record first appellate court came into the conclusion that there is no reason to interfere with the decree for prohibitory injunction granted in favour of respondent Nos.1 and 2 on the premise that they are in possession of the property. That finding is based on the evidence on record and I do not find any substantial question of law involved so as to interfere with the concurrent finding entered by the courts below. 3. Prayer of learned counsel is that some observations made by the first appellate court regarding title claimed by the appellants should not stand in the way of their claiming recovery of possession of the disputed property on the strength of title in O.S.No.594 of 2008. Learned counsel for respondent Nos.1 and 2 submits that trial court was not correct in observing that going by Ext.B1 respondent Nos.1 and 2 did not have title over the entire suit property. 4. This suit being merely for injunction. What is relevant is possession claimed by respondent Nos.1 and 2 as on the date of suit is R.S.A. No.816 of 2009 4 practically admitted by the appellants. Learned counsel for appellants submits that respondent Nos.1 and 2 have paid court fee only under section 27(C) of the Court Fees and Suits Valuation Act and hence also no enquiry into title was necessary in this case. There is some merit in that submission of learned counsel. Hence it is directed that observations if any made by the courts below as to the title claimed by the respective parties would be confined to the decision concerning possession alone and shall not in any way effect the rival claims made by the parties in O.S.No.311 of 1995. I do not find any substantial question of law involved in the second appeal requiring its admission. With the above redirection the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/