IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 RSA.No. 1081 of 2008() ---------------------- AS.131/2003 of ADDL.DISTRICT COURT,KOTTAYAM OS.238/1999 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANTS/RESPONDENTS/DEFENDANTS ---------------------------------------------------------------------- 1. VARGHESE MATHAI AGED 70 YEARS, MADATHINAL HOUSE NEDUMKUNNAM KARA AND VILLAGE CHANGANCHERRI TALUK. 2. ROSAMMA VARGHESE, 62 YEARS, MADATHINAL HOUSE, DO.DO. 3. MATHEW VARGHESE, AGED ABOUT 37, S/O.VARGHESE MATHAI, MADATHINAL HOUSE , DO.DO. 4. JOSEPH VARGHESE, 34 YEARS, S/O.VARGHESE MATHAI, MADATHINAL HOUSE MAILADY BHAGOM, NEDUMKUNNAM KARA AND VILLAGE CHANGANCHERRY TALUK. 5. BIJU VARGHESE, AGED ABOUT 28 YEARS S/O.VARGHESE MATHAI, MADATHINAL HOUSE MAILADY BHAGOM, NEDUMKUNNAM KARA AND VILLAGE CHANGANACHERRY TALUK. BY ADV. SRI.C.VALSALAN RESPONDENT(S): --------------- 1. T.V. JOSEPH @ KUNJUMON, AGED 53, S/O.VARKEY,CHONNATU HOUSE MAILADY BHAGOM, NEDUMKUNNAM KARA AND VILLAGE CHANGANACHERRY TALUK 2. ROSAMMA JOSEPH, AGED 51 YEARS W/O.JOSEPH, CHENNATU HOUSE, MAILADY BHAGOM, NEDUMKUNNAM KARA AND VILLAGE CHANGANACHERRY TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR,J. ................................................... R.S.A. Nos.1080 and 1081 of 2008 ................................................... DATED: 10-11-2008 JUDGMENT The common appellants in these appeals are the plaintiffs in O.S. 235 of 1999 and the defendants in O.S. 238 of 1999 on the file of the Munsiff's Court, Changanassery. In O.S. 235 of 1999 filed by the appellants they sought perpetual injunction restraining the defendants therein from constructing a gate on the northern side of plaint schedule item No. 4 way. In O.S. 238 of 1999 filed by the defendants in O.S. 235 of 1999 they sought a perpetual injunction restraining the appellants from interfering with the construction of a gate in their property scheduled as the plaint schedule property. 2. The plaint schedule in O.S. 235/1999 has four items. Item Nos. 1 and 2 are the properties belonging to the two appellants who are husband and wife. Item No.3 described therein is the property belonging to the defendants in O.S. 235 of R.S.A. Nos.1080 and 1081 of 2008 -:2:- 1999. Item No.4 is described as the way formed using the plaint schedule item No. 3 belonging to the defendants and portions of the plaint schedule items belonging to the plaintiff. The property scheduled to the plaint in O.S. 238 of 1999 is item No. 3 of the plaint schedule in O.S. 235 of 1999. 3. Both the courts have concurrently found that the case of the appellants that the three metre wide way claimed by them was formed utilising portions of the property of the defendants in O.S. 238 of 1999 obtained as per Ext.B2 sale deed and utilising portions of the property of the appellants namely item Nos. 1 and 2 of the plaint schedule in O.S. 235 of 1999 has not been substantiated. Both the courts have also held that there is no way as described in the plaint schedule item No. 4 in O.S. 235 of 1999 filed by the appellants. Likewise the courts below have taken note of 10 feet wide pathway starting further to the east of the disputed way and reaching the house of the appellants. In the light of these findings though not by evidence on record, the trial court decreed O.S. 238 of 1999 filed by the respondents. Instead the trial court dismissed both the suits. On appeal preferred by the appellants as well as by the R.S.A. Nos.1080 and 1081 of 2008 -:3:- plaintiffs in O.S. 238 of 1999 the lower appellate court has dismissed the appeal filed by the appellants but has decreed the appeal filed by the respondents. The resultant position is that O.S. 235 of 1999 stands dismissed where as O.S. 238 of 1999 stands decreed. When the appellants have failed to establish that the western way which they claimed as Item No. 4 of the plaint schedule in O.S. 234 of 1999 was formed by utilising portions of their property comprising plaint items No.1 and 2 and portions of the respondents property obtained under Ext.B2 sale deed. There is no question of the appellants obtaining an injunction against the respondents herein from constructing a gate at the northern end of the said way which passes through their property. Likewise the respondents were entitled to injunction restraining the appellants herein from interfering that the construction of the gate at the northern end of the disputed way which passes through the property of the respondents. The findings recorded by the courts are pure findings of fact based on evidence . No substantial question of law, much less, any substantial questions of law arising for determination in these appeals. The question of law formulated in the memoranda of R.S.A. Nos.1080 and 1081 of 2008 -:4:- appeals also do not arise for consideration in these appeals which are accordingly dismissed in limine. Dated this the 10th day of November 2008. V.RAMKUMAR, Judge. ani/