IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 RSA.No. 652 of 2008() --------------------- AS.70/2002 of SUB COURT,THODUPUZHA OS.358/1998 of MUNI-MAGI.COURT,THODUPUZHA .................... APPELLANTS/APPELLANTS/DEFENDANTS: ---------------------------------------------------- 1. JOSEPH @ KUTTY, S/O.JOSEPH, 65 YEARS, PULIMOOTTIL HOUSE, KOLAPRA KARA, KUDAYATHOOR VILLAGE. 2. JOSE @ BABY, S/O.JOSEPH, AGED 42 YEARS, PULIMOOTTIL HOUSE, MUTTOM KARA, MUTTOM VILLAGE. 3. THOMAS P.J., S/O.JOSEPH, AGED 32 YEARS, PULIMOOTTIL HOUSE, ARAKULAM KARA, ARAKULAM VILLAGE. 4. JOSHY, S/O.JOSEPH, AGED 25 YEARS, PULIMOOTTIL HOUSE, KOLAPRA KARA, KUDAYATHOOR VILLAGE. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.K.C.KIRAN RESPONDENT(S)/RESPONDENT/PLAINTIFF: ----------------------------------- JOSEPH, S/O.DEVASSIA, AGED 62 YEARS, CHITTATTI HOUSE, KOLAPRA KARA, KUDAYATHOOR VILLAGE. ADV. SRI.T.J.MICHAEL FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.652 OF 2008 ----------------------------------- Dated this the 6th day of September, 2010 J U D G M E N T Concurrent decision rendered by the courts below granting a decree of injunction in favour of the respondent/plaintiff is challenged by the appellants/defendants. The dispute related to a narrow strip of land situated on the northern side of the respondent's/plaintiff's property, having a total extent of 11¼ cents in Survey No.520/2/1 of Kudayathoor Village. Plaintiff obtained title and possession over that property under Ext.A1 sale deed from the defendants. Ext.A2 is the receipt evidencing payment of revenue charges over the property by the respondent/plaintiff. Admitting the title of the respondent/plaintiff over the plaint property, the defendants contended that on the northern side of the property, the 3rd defendant has title and possession over a small strip of land. On the materials placed, which included reports and plans collected by deputing an Advocate Commissioner, the trial court upholding the claim of title and possession of the plaintiff over plaint RSA.NO.652/08 2 property and negativing the contention of the defendants that the 3rd defendant has title over some portion of its northern side, decreed the suit restraining the defendants by way of perpetual prohibitory injunction from trespassing upon the plaint property and from committing wastes therein. The first appellate court, after having re-appreciation of the materials tendered, concurred with the findings entered by the trial court, and confirmed the decree of injunction. 2. I heard the counsel for the appellants. While admitting the title and possession of the plaintiff over the suit property, the appellants/defendants had resisted the claim for injunction contending that the 3rd defendant has got title and possession over a narrow strip of land on the northern side of the plaintiff's property. In fact, 3rd defendant has filed a suit as O.S.No.192 of 1999 claiming title over such property and that suit was ordered to be jointly tried with the suit of the plaintiff. But when both the suits were listed for trial, the 3rd defendant abandoned his suit and it was dismissed. When that be so, the challenge set up RSA.NO.652/08 3 to impeach the decree granted in favour of the plaintiff must necessarily fail. It is seen that the 3rd defendant abandoned his suit filing a memo that the suit is not pressed after survey measurements over the property were carried out, which indicated that the 3rd defendant has not even an inch of the land on the northern side of the plaint property. The evidence of the Commissioner examined as DW2 and the surveyor as DW3 corroborating the claim of the plaintiff was accepted by the learned Munsiff to uphold his claim over the plaint property negativing the contentions of the defendants and, thus, for granting a decree of injunction in his favour. Confirmation of the decree by the first appellate court negativing the challenges of the defendants, in the above facts of the case, is unassailable. There is no merit in the appeal, and, hence, it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp RSA.NO.652/08 4