IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 RSA.No. 332 of 2010() --------------------- AS.3/2007 of III ADDL.SUB COURT, KOZHIKODE OS.448/2003 of ADDL.MUNSIFF COURT.,KOZHIKODE-II .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------ 1. RUGMINI, AGED 54 YEARS, D/O.PATIPARAMBATH CHERIYAKKAN, AZHINHILAM AMSOM DESOM, ERNAD TALUK. 2. PATIPARAMBATH GOPALANKUTTY, AGED 44 YEARS, S/O.CHRIYAKKAN, AZHINILAM AMSOM DESOM, ERNAD TALUK. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD SRI.KANDAMPULLY RAHUL RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------- 1. PRESI, AGED 33 YEARS, W/O.NELLIKODAN REGHU, RESIDING AT CHERAKKAM KUNNU, MALIRA VEEDU, P.O.RAMANATTUKARA, KOZHIKODE TALUK, VALIPRAM AMSOM & DESOM. 2. NELLIKODAN CHANDAPPAN, AGED 72 YEARS, FATHERS NAME NOT KNOWN, P.O.RAMANATTUKARA, KOZHIKODE TALUK, VALIPRAM AMSOM & DESOM. 3. M.V.SUBRAMANNIAN, 59 YEARS, S/O.CHERIYAKKAN, PATIPPARAMBATH VEEDU, PERUMPILLISSERI, P.O.CHERUP, THRISSUR DIST. 4. M.V.ARUMUGHAN, 51 YEARS, S/O.CHERIYAKKAN, DRIVER, KERALA AGRICULTURAL UNIVERSITY, RARS, P.O.PATTAMBI, PALAKKAD DISTRICT. 5. LEELA, D/O.AYYAPPAN, `KODICHEETIL VEEDU' THENJIHIPPALAM P.O., MALAPPURAM-673 636. 6. SANTHA, W/O.KUPPADA CHANDRAN, VARIANTHUDI VEEDU, VAIDYARANGADI P.O. KOZHIKODE. 7. THANKAMANI, D/O.AYYAPPAN, `POYILTHAZHAM VEEDU' RAMANATTUKARA P.O., KOZHIKODE. 8. PADMANABHAN, S/O.AYYAPPAN, `MALEERI VEEDU', RAMANATTUKARA P.O., KOZHIKODE. 9. RADHAKRISHNAN, S/O.AYYAPPAN, `MALEERI VEEDU', RAMANATTUKARA P.O, KOZHIKODE. 10. VINUDASAN, S/O.AYYAPPAN, `MALEERI VEEDU', RAMANATTUKARA P.O., KOZHIKODE. 11. SURENDRAN, S/O.AYYAPPAN, `MALEERI VEEDU', RAMANATTUKARA P.O., KOZHIKODE. 12. PADMAVATHY, W/O.PERACHAN, KANDANKULANGARA VEEDU', THENJHIPALAM P.O., MALAPPURAM-673636. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.332 of 2010 --------------------------------------- Dated this 26th day of March, 2010 JUDGMENT Appellants/plaintiffs, unsuccessful in the courts below in getting a decree for prohibitory injunction has preferred this second appeal raising by way of substantial question of law whether appellants having proved their title and possession of the suit property, courts below were legally correct in disallowing the prayer for injunction. According to the appellants, suit property was acquired by them and respondent Nos.3 and 4 as per Ext.A1, assignment deed No.3172 of 1968 followed by their obtaining Ext.A3, purchase certificate. Deceased defendant No.1 (her legal representatives are respondent Nos.5 to 12) has some property on the south and west of the suit property. He, along with respondent Nos.1 and 2 attempted to alter the south western boundary of the suit property and hence the suit. Deceased defendant No.1 did not admit title and possession of appellants and respondent Nos.3 and 4 in the suit property and claimed that he has 1.61 acres in R.S.No.317/1 as per assignment deed No.3017 of 1963. He assigned north western portion of the said property to one Nani Amma (who executed Ext.A1, assignment deed in favour of appellants and respondent Nos.3 and 4) as per Ext.A2. He claimed that there was a fence on the souther side of the property of appellants and respondent Nos.3 and 4 demarcating their property from his property which was R.S.A.No.332 of 2010 2 destroyed by the appellants and others and they attempted to trespass into the property of deceased defendant No.1. Trial court found that appellants and respondent Nos.3 and 4 have title and possession of the property referred to in Ext.A1 but held that to grant decree for prohibitory injunction, the suit property must be property identified and shown to have defined boundaries on all sides. There was no such identifiable boundary on the southern side of the property separating it from the property admittedly belonging to deceased defendant No.1. In the circumstance, trial court refused to grant injunction. First appellate court has confirmed that finding and hence the second appeal. 2. It is true that courts below have stated that appellants and respondent Nos.3 and 4 have title and possession of the property referred to in Ext.A1 but, to get decree for prohibitory injunction as rightly pointed out by learned Munsiff it must be shown that the property in respect of which such relief is asked for lies within identifiable boundaries. It is not disputed that the property on the south and west of the suit property belonged to deceased defendant No.1. According to the appellants, deceased defendant No.1 along with respondent Nos.1 and 2 attempted to alter the south western boundary of the suit property. Deceased defendant No.1 has a case that the existing fence on the southern boundary of the suit property was removed by the appellants and they made attempt to encroach into the property of deceased defendant No.1. The Advocate R.S.A.No.332 of 2010 3 Commissioner reported in Ext.C1 that there was no identifiable boundary on the southern side of the suit property. He found a few rubbles kept on the southern side of the suit property which, the courts below were not prepared to take as a definite boundary of the properties of the appellants and deceased defendant No.1. Trial court has also observed that though Advocate Commissioner wanted the assistance of a Surveyor to identify the southern boundary of the suit property appellants did not take any steps to get the southern boundary identifiable. There was no attempt to get the report of the Advocate Commissioner remitted so that, property could be measured and the southern boundary fixed. First appellate court has confirmed that view of learned Munsiff and dismissed the appeal. As I stated, in the absence of specific boundary between the property of the appellants and deceased defendant No.1, it is not open to the appellants to ask for decree for prohibitory injunction since such a decree would not conclusively determine dispute between the parties. Courts below rightly refused to grant relief. No substantial question of law is involved. Hence without prejudice to the right of appellants and respondent Nos.3 and 4 to seek appropriate reliefs by identifying and fixing the disputed boundary, this appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/