IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 RSA.No. 106 of 2005() --------------------- AS.196/1998 of ADDL.DISTRICT COURT-I, MAVELIKKARA OS.21/1997 of MUNSIFF'S COURT,CHENGANNUR .................... APPELLANTS/APPELLANTS/DEFENDANTS: ----------------------------------------------------- 1. M.K.GOPALAN, MANAKUPPIYIL VEETTIL, EDANADU MURI, CHENGANNUR VILLAGE. 2. ANNAMMA OOMMEN, W/O.M.E.OOMMEN, MANAKKUPPIYIL VEETTIL, EDANADU MURI, CHENGANNUR VILLAGE, REP. BY ITS P.A.HOLDER M.K. GOPALAN, MANAKUPPIYIL VEETTIL, EDANADU MURI, CHENGANNUR VILLAGE, IST APPELLANT. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENTS/ RESPONDENTS AND 4TH ADDL. APPELLANT/PLAINTIFF: ------------------------------------------------------------- 1. MAMMEN CHERIYAN, THUNDAN THURUTHIYIL VEETTIL, EDANADU MURI, CHENGANNUR VILLAGE. 2. SUNU EAPEN OOMMEN, S/O.M.E.OOMMEN, MANAKKAPPIYIL VEETTIL, EDANADU MURI, CHENGANNUR VILLAGE.M (STRUCK OFF) 3. JINU ZACHARIA OOMMEN, ROOM NO.254, SABARMATHI HOSTEL, JAWAHARLAL NEHRU UNIVERSITY, NEW DELHI 110 067. (STRUCK OFF) 4. JIJI MATHEW, 2006 BENEDICT 452223, ROWLET, TEXAS 75088. -2- R.S.A.NO.106/2004 5. SUJI SAM, HAYATH GROUP, CERAMIC DIVISION, P.O.BOX, NO.1668, SAFAT 13019, KUWAIT. (NAME OF RESPONDENTS 2 AND 3 ARE STRUCK OFF AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 2/4/08 IN MEMO BEARING C.F.NO.1858/08 FILED BY THE COUNSEL FOR THE APPELLANTS) ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.106 OF 2005 --------------------------- DATED THIS THE 1ST DAY OF JULY, 2009 JUDGMENT Defendants in O.S.No.21/97 on the file of the Munsiff's Court, Chengannur are the appellants. The appeal is directed against the judgment and decree in A.S.No.196/98 on the file of the Additional District Court, Mavelikara. The suit filed for permanent prohibitory injunction was decreed by the trial court and was confirmed in appeal. Hence this second appeal. 2. The southern property of plaint schedule item Nos. 1 and 2 belongs to the appellants/defendants. There is a thodu lying on the southern side of the plaint schedule item No. 1 and 2 property and it is scheduled as item No.3 in the plaint. The item No.3 thodu lies In between the plaintiff's property and the defendants'. According to the plaintiff, defendants attempted to cause damage to the southern boundary kayyala and cut and -2- R.S.A.No.106/2005 remove the trees standing on the southern side of the plaint schedule item Nos. 1 and 2 properties and tried to construct a foundation across the thodu with a view to reduce the flow of water. 3. In the written statement filed by the defendants they denied the existence of a thodu in between their property and the plaintiff's property. According to the defendants, their property lies on the southern side of the plaintiff 's property. A Commissioner was deputed for local inspection. He reported that the width of thodu on the south of item Nos.1 and 2 is having more than 6 feet and depth of more than 5 to 6 feet. The Commissioner also noted the kayyala on the southern portion of the property and trees along the southern portion of the property of the plaintiff. The trial court, after examining the oral evidence tendered by the plaintiff as PW-1 and his witnesses PWs.2 to 3, Exts.A1 to A3(a), the oral evidence of the lst Defendant as DW- 1, Exts. B1 to B3 and C1 to C3, concluded that the plaintiff is in -3- R.S.A.No.106/2005 possession of the property up to the thodu and he is in enjoyment of the same and the existence of the thodu on the west and south- eastern portion connects the south-western portion along the northern boundary of the defendants and southern boundary of the plaintiff. The Appellate court also repelled the contention of the defendants and held that non-mentioning of the thodu as boundary in the document is not sufficient to come to the conclusion that there exists no thodu at all and that the evidence shows that there exists a thodu on the south of plaintiff's property and north of the defendants' property. After appreciating the evidence, both the courts below concurrently held that the plaintiff is in possession of the property up to the thodu and that the thodu lies as boundary on the southern side and hence, the plaintiff is entitled to get an injunction restraining the defendants and their men from causing any obstruction to the thodu or doing anything in such a way as to reduce the width of the thodu and from trespassing into the plaint item Nos.1 and 2 and to cut and -4- R.S.A.No.106/2005 remove any of the trees from that portion. 5. The findings arrived at by the courts below are based on facts, evidence and other attendant circumstances. The findings are purely based on facts. No questions of law much less any substantial questions of law arise for consideration in this appeal. No grounds are made out to invoke the jurisdiction under Section 100 of the C.P.C. In the result, the appeal fails and it is accordingly dismissed in limine. HARUN-UL-RASHID, Judge. kcv. -5- R.S.A.No.106/2005