IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 RSA.NO. 1316 OF 2009() ------------------------------------ AS.135/2009 OF ADDL. DISTRICT COURT, PARAVUR OS.36/2003 OF MUNSIFF COURT,ALUVA .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------------------ 1. P.O.OUSEPH,AGED 58 YEARS, S/O.LATE OUSEPH, THARIKKAPUTHUSSERI, PIRARUR KARA, MATTOOR VILLAGE, ALUVA TALUK. 2. AMMINI,AGED 51 YEARS, D/O.LATE OUSEPH, THARIAKKAPUTHUSSERI, PPIRAVUR KARA, MATTOOR VILLAGE, ALUVA TALUK. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------------------------------------ 1. KUTTAPPAN,AGED 51 YEARS,S/O.MUNDEPPILLY MANIAN, PIRARUR KARA, MATTOOR VILLGE, ALUVA TALUK, PIRARUR P.O., KALADY (VIA), ERNAKULAM DISTRICT. 2. KUMARAN,AGED 61,S/O.PLAMKUDI RAMANKUTTY, PIRARUR KARA MATTOOR VILLAGE, ALUVA TALUK, PIRARUR P.O.,KALADY (VIAA),ERNAKULAM DISTRICT. 3. JOSE,AGED 56,S/O.KACHAPPILLY POULOSE, PIRAVUR KARA, MATTOOR VILLGE, ALUVA TALUK, PIRARUR P.O. KALADY (VIA) ERNAKULAM DISTRICT 4. NARAYANAN, AGED 51,S/O.POOPPILLICHALU PULIYAMPILLY, PIRAVUR KARA, MATTOOR VILLGE, ALUVA TALUK, PIRARUR P.O. KALADY (VIA) ERNAKULAM DISTRICT 5. BAB AGED 51,S/O. MOOZHAYIL POULOSE, PIRAVUR KARA, MATTOOR VILLGE,ALUVA TALUK, PIRARUR P.O. KALADY (VIA)ERNAKULAM DISTRICT 6. SIVAN, AGED 36,S/O.MUNDEPPILLY KAPPAN, PIRAVUR KARA, MATTOOR VILLGE,ALUVA TALUK, PIRARUR P.O. KALADY (VIA)ERNAKULAM DISTRICT 7. SUBRAN, AGED 51,S/O.PARAPPURAM VALLON, PIRARUR KARA, MATTOOR VILLAGE, ALUVA TALUK, PIRARUR P.O.,KALADY(VIA), ERNAKULAM DISTRICT. 8. BABU,AGED 31,S/O. MUNDEPPILLY KAPPAN, PIRARUR KARA, MATTOOR VILLAGE, ALUVA TALUK, PIRARUR P.O.,KALADY(VIA), ERNAKULAM DISTRICT. 9. VINU AGED 26,S/O.POOPPILLYCHAL KUTTAPPAN PIRARUR KARA, MATTOOR VILLAGE, ALUVA TALUK, PIRARUR P.O.,KALADY(VIA), ERNAKULAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1316 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of December, 2009 J U D G M E N T ---------------------- This Second appeal arises from judgment and decree in A.S. No.135 of 2009 of the learned Additional District Court, North Paravur arising from judgment and decree in O.S. No.36 of 2003 of the learned Munsiff, Aluva. Appellants sued respondents for a decree for prohibitory injunction and for realisation of damages alleging that respondents are attempting to trespass into the suit property and that they have demolished a portion of the water pipe laid for irrigation of plaint A schedule. According to the appellants they got title over the suit property as per Will No.4/66 executed by their father, the late Ouseph. On the east of suit property is a thodu with a ridge on the further east. Appellants claimed that they have been irrigating plaint A schedule with the water drawn from the tank on the eastern side. There was a former suit filed by the appellants, O.S. No.454 of 1989 claiming injunction against the respondents. Further case is that respondents committed mischief and caused damages to the tune of Rs.1,000/-. Respondents denied that there was any thodu or ridge on the east of plaint A schedule R.S.A. NO.1316 of 2009 -: 2 :- and that they committed mischief. According to them plaint A schedule is a reclaimed land. Trial court found that plaint A schedule is bounded by compound walls on all sides and that there was no thodu or ridge on the eastern side. Trial court also found that allegation of mischief committed by the respondents is not proved and non-suited the appellants. Though respondents had filed a counter claim that also did not find favour with the learned Munsiff. Respondents did not pursue the counter claim as learned counsel submits. First appellate court concurred with the finding entered by the learned Munsiff and dismissed the appeal. Hence this Second Appeal. 2. Appellants prayed for mandatory and prohibitory injunction. Trial court on the evidence found that there was no thodu or ridge on the eastern side of the suit property. Trial court also found that there was no evidence regarding the mischief alleged to be committed by the respondents so that they could be directed to pay damages. It is admitted that there was no properly measured plan of the suit property. In the circumstances trial court was justified in refusing to grant the reliefs as prayed for. First appellate court concurred with that finding. Findings entered by R.S.A. NO.1316 of 2009 -: 3 :- courts below are based on evidence which in my view does not involve any substantial question of law requiring admission of this Second Appeal. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.1316 of 2009 -: 4 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.1316 OF 2009 =================== J U D G M E N T 23RD DECEMBER, 2009