IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 SA.No. 667 of 1999(D) -------------------------------- AS.NO.194/1990 of ADDL.DISTRICT COURT, KOTTAYAM OS.NO. 414/1986 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT/ APPELLANT/ DEFENDANT ---------------------------------------------------------- M.M.GEORGE, VALLOMPURAYIDOM, CHERIKALAYA MAMMOTTIL, CHAMPAKARA MURI, KARUKACHAL VILLAGE. BY ADV. SRI.P.R.VENKITESH RESPONDENT/RESPONDENT/ PLAINTIFF ------------------------------------------------------------ DAMODHARAN NAIR, VALLOMPURAYIDATHIL, CHAMPAKARAMURI, WHO IS REPRESENTED BY POWER OF ATTORNEY HOLDER MADHAVAN NAIR, VASUDEVAN NAIR, VASANTHAVILASATH VEEDU, CHAMPAKARA MURI, KARUKACHAL VILLAGE. BY ADV. SRI.K.JAGADEESCHANDRAN NAIR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. ---------------------------- S.A.No. 667 of 1999 --------------------------------- Dated this the 8th day of June, 2011 JUDGMENT Faced with the concurrent findings against him the defendant in O.S. No.414/1986 before the Munsiff's Court, Changanassery has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claimed to have obtained the plaint schedule property as per Ext.A1 partition deed dated 6.01.1951. The plaint schedule property is in E schedule to the partition deed. Ever since the partition deed the plaintiff has been in absolute possession and enjoyment of the property. The defendant owns property on the western side of the plaint schedule property. According to the plaintiff, the properties are separated by a well laid Kayyala. The complaint was that the defendant with an intention of trespassing into the property tried to demolish the Kayyala and annex a portion of the plaintiff's property to his property. On the basis of these allegations, the suit was laid. S.A.No. 667 of 1999 2 3. The defendant resisted the suit. He pointed out that there was a double faced kayyala, which got destroyed by passage of time. The allegation that he tried to trespass into the plaint schedule property and destroy the Kayyala are false. Considering the level difference between the properties, the defendant is more in need to have a Kayyala. Under such circumstances, it is inconceivable that they would destroy the kayyala. Pointing out that the plaintiff had no cause of action, he prayed for a dismissal of the suit. 4. Based on the above pleadings necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts. A1 to A5 from the side of the plaintiff. Defendant had DWs 1 and 2 examined. On an evaluation of the evidence, both the courts below found that the contentions of the defendants are false and found that the apprehension expressed by the plaintiff is just and reasonable and therefore decreed the suit as prayed for. 5. Notice is seen issued on the following substantial questions of law: S.A.No. 667 of 1999 3 a. In the facts and circumstances of the case when the right claimed by the plaintiff itself is in dispute is a mere suit for injunction sustainable ? b. Can admission confer title upon the parties to the suit, without any independent proof of title ? c. Did not the courts below erred in casting the burden of proof upon the defendant in a suit for injunction ? d. Did not the courts below erred in granting a decree for injunction in respect of property which is not in existence as on the date of the suit ? 6. The learned counsel appearing for the appellant contended that both the courts below have erred in granting a decree in favour of the plaintiff. According to the learned counsel, the courts below have not adverted to the evidence in the proper perspective and have not considered the materials before them. At any rate, according to learned counsel there was no cause of action for the suit. 7. The contentions are without any basis whatsoever. The definite stand taken by the defendant before the courts below is that the western compound wall belonged to him and that the plaintiff had no right over the same. It is interesting to note that S.A.No. 667 of 1999 4 both the plaintiff as well as the defendant obtained property from PW3 and the evidence of PW3 is to the effect that the compound wall, regarding which there is a dispute, was put up by his predecessors-in-interest and that it belonged to the plaintiff now. Defendant who obtained property from PW3 is therefore, bound by the statement of PW3. He cannot say otherwise now. It has also come out in evidence that there is a survey stone on the northern corner of the eastern boundary of the property of the defendant. It is also admitted by the defendant that there is a thodu on the eastern side of the property and survey stone is on the southern side of that thodu. Both the courts below have found that the thodu is situated on the west of the disputed compound wall. It is therefore, very clear that the property of the defendant is situated further west of the disputed Kayyala and thodu. Apart from the evidence of PW3, the above circumstances also clearly show that the defendant cannot claim right over the compound wall. It is not disputed by the defendant that kayyala separates the properties of the plaintiff and defendant. The trial court noticed that in fact the defendant in his S.A.No. 667 of 1999 5 evidence, admitted that the compound wall belonged to the plaintiff. Whatever that be, it is clear from the evidence that the kayyala belongs to the plaintiff. 8. As regards the second contention regarding the cause of action, as rightly noticed by the courts below from the fact that the appellant is laying claim to the compound wall is sufficient reason for a reasonable apprehension in the mind of the respondent with regard to the threat of trespass. In a suit for injunction such a reasonable apprehension is sufficient cause of action. The findings are based on the evidence on record and are not shown to be perverse. In the result, the appeal is dismissed as no substantial question of law arises for consideration in the second appeal. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln