IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 RSA.No. 512 of 2010() --------------------- AS.180/2006 of DISTRICT COURT, PALAKKAD OS.779/1999 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT IN AS/2ND PLAINTIFF IN OS: ----------------------------------------------------------------- RAMANUNNI, AGED 54 YEARS, S/O.KRISHNAN, PALLIPPURAM, VERKOLI, POLPPULLI AMSOM, PALAKKAD TALUK. BY ADV. SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA RESPONDENT(S)/RESPONDENTS IN AS/DEFENDANT & PLAINTIFFS 1&3 IN OS: ----------------------------------------------------------------- 1. ARJUNAN, AGED 62 YEARS, S/O.RAMAN UDAYAR, VERKOLI, POLPPULLI, PALAKKAD TALUK. 2. KANAKAMANI, AGED 63 YEARS, D/O.VELAYUDHAN, PALLIPPURAM, VERKOLI, POLPPULLI AMSOM, PALAKKAD TALUK. 3. RAJMOHAN, AGED 55 YEARS, S/O.KRISHNAN, VERKOLI, POLPPULLI AMSOM, PALAKKAD TALUK. ADV. SMT.KEERTHI SOLOMON FOR R2 & 3 SRI.D.KRISHNA PRASAD FOR R1 SRI.S.SACHITHANANDA PAI FOR R1 SMT.O.K.SANTHA FOR R1 SMT.S.SANTHY FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.512 OF 2010 ----------------------------------- Dated this the 25th day of January, 2011 J U D G M E N T The 2nd plaintiff in O.S.No.779 of 1999 on the file of the Principal Munsiff Court, Palakkad is the appellant. The 1st respondent is the defendant and the others the co-plaintiffs in the suit. Suit was one for a decree of mandatory injunction. Both courts concurrently found that the plaintiffs are not entitled to the discretionary relief canvassed for. Feeling aggrieved, one among the plaintiffs, 2nd plaintiff alone, has preferred this second appeal. 2. Notice on admission given, the 1st respondent/plaintiff has entered appearance through counsel. I heard the counsel on both sides. 3. The dispute involved in the case related to a ridge separating the paddy fields of the plaintiffs and that of the R.S.A.NO.512/2010 2 defendant. Admittedly, there was a previous suit filed by the defendant herein against the predecessor of the plaintiffs for a declaration and injunction, in which also, the dispute pertained to the ridge separating the paddy fields. The decree passed in that suit was modified in second appeal by this Court to the effect that both parties shall have right up to the limited line of the ridge adjoining to their paddy fields. Three coconut trees situated on the southern edge of the varamba to the paddy field belonging to the 1st defendant herein, it was held shall be continued to be enjoyed by the 1st defendant, the plaintiff in the suit. Both parties in the suit were directed not to tamper that ridge in any manner. The operative portion of the decree passed in such second appeal reads thus: (1) that the disputed varamba belongs in common to the plaintiff and the 2nd defendant, each entitled upto its mid-point; (2) that neither party is entitled to demolish or add any portion of the varamba to their respective paddy fields, nor will they obstruct the use of the varamba as a pathway leading to the Panchayath road; R.S.A.NO.512/2010 3 (3) that the “kazhayas” across the varamba will not also be damaged or interfered with by either of the parties; (4) that the 3 coconut trees standing on the southern edge of the varamba adjoining the plaintiff's paddy land are declared as belonging to the plaintiff and he is entitled to take the usufructs therefrom; and (5) that the second appeal be and hereby is disposed of as above in clauses (1) to (4). 4. Imputing acts of flouting the decree passed in the aforesaid second appeal, the defendant herein moved an application before the execution court for restoring the portions of the ridge, which are alleged to have been tampered with. While such execution petition was pending, the present suit was instituted by the plaintiffs for the decree of mandatory injunction imputing that the defendant had tampered with the ridge and annexed portions of the same to his paddy field. 5. On the materials placed, which consisted of PWs.1 and 2 and Exts.A1 and A2 for the plaintiffs, Exts.B1 and B2 for the defendant and Exts.C1 to C3 series reports and plans prepared R.S.A.NO.512/2010 4 by the Advocate commissioner, the trial court concluded that the plaintiffs are not entitled to the decree of mandatory injunction applied for and they were non-suited. Challenge against the decree of dismissal was turned down by the lower appellate court concurring with the views formed by the trial court. Concurrent decision so rendered is assailed by the 2nd plaintiff in this appeal. 6. The learned counsel for the appellant/2nd plaintiff adverting to the materials tendered in the case contended that there was no counter evidence impeaching the credit of the evidence let in by the plaintiffs to substantiate their claim of mandatory injunction. Both the courts below have misconstrued and mis-appreciated the evidence let in the case and that has resulted in forming a wrong conclusion, is the submission of the counsel. Per contra, the leaned counsel appearing for the defendant/1st respondent contended that after meticulous analysis of the materials tendered, both the courts below have come to the conclusion that the tampering of the ridge was done by the plaintiffs and the suit has been filed as a counter blast to R.S.A.NO.512/2010 5 the proceedings taken by the defendant for executing the decree passed in the earlier suit. 7. Perusing the judgments rendered by the courts with reference to the submissions made by the counsel, it is seen, an advocate commissioner was deputed at the instance of the plaintiffs to find out whether there was any tampering made over the ridge. Admittedly, the defendant's property is in Re-survey No.242/3 and that of the plaintiffs in Re-Survey Nos.240/1 and 239/2. The ridge now existing as per the report and plan prepared by the commissioner now falls entirely within Re- survey number 242/3, which is within the survey field of the defendant. So whatever portions of the ridge, which was within the property of the plaintiffs, that is in Re-survey No.240/1 and 239/2, are presently not in existence. The kazhayas or vents across the varamba existing earlier were not to be seen. Where the loss of the ridge portion is found to be wholly in the property covered by the survey field of the plaintiffs, the case canvassed by them for a decree of mandatory injunction as against the defendant, the decree holder in the previous suit, needless to R.S.A.NO.512/2010 6 point out, was unworthy of any merit, and it was rightly and correctly found to be so by both the courts below. Though the plaintiffs had filed objections to the commission report, such objections were not substantiated by examining the advocate commissioner. The backdrop of the case that the suit was instituted at a point of time when the defendant, the previous decree holder proceeded for execution of the decree passed in his suit imputing tampering of the ridge by the present plaintiffs cannot also be lost sight of. There is no infirmity, leave alone, any illegality in the concurrent decision rendered by both the courts non-suiting the plaintiffs. The appeal is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.512/2010 7