IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 RSA.No. 899 of 2005(F) ---------------------- AS.14/1997 of SUB COURT, MANJERI OS.85/1993 of MUNSIFF COURT, MANJERI .................... APPELLANTS(RESPONDENTS/DEFENDANTS) ------------------------------------------------------ 1. VIJAYALAKSHMI, W/O.LATE NARAYANAN 2. ANIL BABU, S/O.MANEERI NARAYANAN 3. SUNIL @ SUNNILRAJ, S/O.MANEERI NARAYANAN 4. SREEKALA, W/O.K.P.VIJAYARAJAN, 5. BABY ALIAS SURESH. (THE APPELLANTS ARE RESIDING AT KALIKAVU AMSOM, THRIKKUNNASSERI DESOM, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): APPELLANTS/PLAINTIFFS ------------------------------------ 1. RUGMINI, D/O.MANEERI NANU, VALLUVAMBRAM AMSOM, PULLANOOR DESOM, MALAPPURAM DISTRICT. 2. VISALAKSHI, PUTHUKODE AMSOM, VAZHAYIL VEEDU. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 - R2 SRI.M.RISHIKESH SHENOY FOR R1 - R2 SRI.N.MANOJ KUMAR FOR R1 - R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.899 OF 2005 --------------------------------------------- Dated 21st March, 2011 JUDGMENT Defendants in O.S.85/1993 on the file of Munsiff court, Manjeri are the appellants. Plaintiffs are the respondents. The suit was instituted by the respondents seeking a decree for injunction contending that item No.1 of plaint schedule property belongs to the first respondent and item No.2 belongs to the second respondent and they respectively obtained the properties as item No.1 and 5 under Ext.A1 partition deed and since then they have been in possession of the properties and appellants are attempting to trespass into plaint schedule properties and they have no right to trespass into the property. Respondents also contended that under Ext.A1 partition deed a way has been RSA 899/05 2 provided for and the appellants are not entitled to cause any obstruction for setting a pathway. A decree for injunction was sought to restrain appellants from trespassing and also not to cause obstruction to the way. Appellants resisted the suit admitting that their properties as well as properties of respondents originally belonged to the family and they were divided in 1966 under Ext.A1 and item Nos.1 and 5 therein were allotted to the respondents. It is contended that no way has been provided as claimed and appellants have not attempted to trespass into plaint schedule property and there is no cause of action to institute the suit. It was therefore, contended that respondents are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of RSA 899/05 3 PW1, DW1, CW1 and Exs.A1 to A4, B1 and B2 and C1 to C4 found that though Ext.A1 provides for a way, the width of the way is not shown and based on Ext.A1, the way cannot be located. Learned Munsiff further found that though appellants have right and possession to the properties under Ext.A1, cause of action to institute the suit was not established and therefore, respondents are not entitled to the decree sought for. The suit was dismissed. Appellants challenged the judgment before Sub court, Manjeri in A.S.14/1997. Learned Sub Judge on re-appreciation of the evidence found that right and possession of the respondents to plaint schedule properties is not disputed and in a suit for injunction it is not necessary to prove the exact cause of action alleged and a reasonable apprehension of trespass is RSA 899/05 4 sufficient. Appeal was allowed and a decree for injunction was granted restraining the appellants from trespassing into the plaint schedule properties. It is challenged in the second appeal. 3. Second appeal was admitted formulating following substantial questions of law. (i) Whether a stray admission made by the witness in cross examination outweigh the documentary evidence available in the case ? (ii) Can an order of injunction be granted in favour of the plaintiffs if the plaintiffs fails to prove any cause of action ? (iii)Can a decree be granted in a suit for injunction, without proper identification of the plaint schedule RSA 899/05 5 property ? (iv) Can a decree be granted in favour of the plaintiffs when the document relied upon itself shows that the plaint schedule property is incorrect ? 4. Learned counsel appearing for the appellants and respondents were heard. 5. The fact that item No.1 of the plaint schedule properties is item No.1 of Ext.A1 and item No.2 of plaint schedule properties is item No.5 of Ext.A1 partition deed is not disputed. It is also not disputed that under Ext.A1 partition deed item No.1 was allotted to first respondent and item No.5 to the second respondent. Written statement filed by the appellants makes it absolutely clear that appellants are not disputing the right and possession of the of first respondent to item RSA 899/05 6 No. 1 of plaint schedule properties and the right and possession of the second respondent to item No.2 of plaint schedule properties. The only contention raised is that they are not in possession of any other property. Though learned counsel appearing for the appellants vehemently argued that identity of plaint schedule properties was in dispute, I find that no such issue was raised by the trial court. In view of insistence of the learned counsel appearing for the appellants that identity was disputed, the written statement was perused. I find that identity of plaint schedule properties was not disputed in the written statement at all. Added to this the description of plaint schedule properties show that there is absolutely no difference between the descriptions in item No.1 of plaint schedule RSA 899/05 7 properties and item No.1 of Ext.A1 properties. So also there is no difference in the description of item No.5 of Ext.A1 properties and item No.2 of plaint schedule properties. It is therefore absolutely clear that plaint schedule properties are the identical properties obtained by the respondent under Ext.A1. Therefore, there cannot be a valid dispute in the question of identity of plaint schedule properties. That could only be the reason for the appellants in not disputing the identity. Possession of the respondents to the plaint schedule properties also cannot be disputed as in the written statement itself possession of item Nos. 1 and 5 of the properties obtained by the respondent is admitted. Therefore, appellant cannot dispute the right and possession of the respondents to RSA 899/05 8 the plaint schedule properties. When identity of the property is not disputed and description of the plaint schedule properties is as described in Ext.A1 partition deed and possession is also proved, the only question is whether there is a cause of action to institute the suit for permanent prohibitory injunction. 6. Argument of the learned counsel is that in a suit for injunction the cause of action as alleged in the plaint is to be proved and if not proved the plaintiffs are to be non suited. I cannot agree. It is not necessary to prove the cause of action alleged in the plaint like the overt acts in a criminal case. A reasonable apprehension of trespass in the mind of the plaintiff is sufficient to maintain a suit for injunction. The very fact that appellants challenged the decree granted RSA 899/05 9 by the first appellate court before this court, even though the decree granted was limited to committing trespass into the properties allotted to the respondents under Ext.A1 partition deed and there is no difference in the extent, boundaries or identity of the properties makes it clear that the apprehension of trespass in the mind of the respondents is unreasonable. If so, it is sufficient to institute the suit. In such circumstances, first appellate court was perfectly justified in granting a decree, which the trial court failed to grant on a misapprehension of the necessity to prove the cause of action to the hilt. In such circumstances, I find no reason to interfere with the decree for injunction granted by the first appellate court, as the decree was only RSA 899/05 10 from committing trespass into the plaint schedule properties. The substantial questions of law formulated on the facts are not involved in the suit. Appeal is dismissed. No costs. M.SASIDHARAN NAMBIAR, JUDGE. uj.