IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 RSA.No. 609 of 2011() --------------------- AS.211/2007 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.595/2004 of II ADDL.M.C.,TRIVANDRUM .................... APPELLANTS/APPELLANTS 1 & 2 IN FIRST APPEAL/ DEFENDANTS 1 & 2 : ------------------------------------------------------------- 1. SIVARAJAN, S/O.CHELLAPPAN CHETTIYAR, ANAMIKA, KALLUMOODU, ANAYARA P.O., THIRUVANANTHAPURAM 2. VASANTHA, W/O.SIVARAJAN, DO. DO. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S): RESPONDENTS IN FIRST APPEAL & APPELLANTS 3 & 4/ PLAINTIFFS & DEFENDANTS 3 & 4: ------------------------------------------------------- 1. N.SOMAN, S/O.NARAYANAN, TC 30/232 (1), KALLUMMOODU, ANAYARA P.O., THIRUVANANTHAPURAM PIN - 695 029. 2. SUDHA DEVI, W/O.HARIDAS, TC 30/132 (1), DO. DO. PIN - 695 029. 3. DEEPA S.RAJAN, D/O.VASANTHA, ANAMIKA, TC 30/234, KALLUMMOODU, ANAYARA, THIRUVANANTHAPURAM. PIN - 695 029. 4. ANOOPA S.RAJAN, DO. DO. PIN - 695 029. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.609 OF 2011 --------------------------------------------- Dated 14th July, 2011 JUDGMENT Defendants 1 and 2 in O.S.595/2004 on the file of Second Additional Munsiff court, Thiruvananthapuram are the appellants. Respondents 1 and 2 are the plaintiffs and other respondents, the other defendants in the suit. The suit was filed seeking a decree for permanent prohibitory injunction contending that respondents 1 and 2 have a right of way over plaint E schedule property. In the joint written statement filed it was contended that under Ext.B2, they have title to 28½ cents and out of the said property, counter claim B schedule property namely, 12 cents was assigned by RSA 609/11 2 the appellants in favour of third defendant and subsequently, the remaining property on the east of counter claim B schedule property was assigned in favour of the fourth defendant and thereafter, additional fourth defendant sold 4 cents out of the said property to the appellants and the remaining 6 cents out of the ten cents in the counter claim C schedule property. They sought a decree in the counter claim in respect of the counter claim B and C schedule properties contending that they are entitled to construct a compound wall on the northern boundary of the said properties and respondents 1 and 2 are not entitled to cause any obstruction, for the construction of the boundary wall and as they are objecting, a decree for permanent prohibitory injunction is to be granted. Learned Munsiff on the evidence dismissed the suit as well as the counter RSA 609/11 3 claim. Respondents 1 and 2 filed A.S.156/2007 and appellants along with defendants 3 and 4 filed A.S.211/2007, challenging the dismissal of the suit and dismissal of counter claim respectively. Learned Additional District Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed both the appeals. Respondents 1 and 2 filed R.S.A.30/2011, challenging dismissal of the suit. By judgment dated 8/2/2011, the said second appeal was dismissed at the admission stage finding that there is no substantial question of law, but making it clear that dismissal of the suit will not disentitle them from claiming relief of declaration of easement by grant. Defendants 1 and 2 alone filed the second appeal challenging the dismissal of the counter claim. 2. Learned counsel appearing for the RSA 609/11 4 appellants was heard. 3. Argument of the learned counsel appearing for the appellants is that claim of respondents 1 and 2, the plaintiffs was that through the property of the defendants they have a right of way which is described as C schedule in the plaint and courts below concurrently found that there does not exist such a way and respondents 1 and 2 are not entitled to the decree and the finding was settled by this court in R.S.A.30/2011. Learned counsel would argue that in such circumstances, courts below should have granted a decree in favour of the appellants, to permit them to construct a compound wall on the northern boundary. Learned counsel would argue that if the extent is properly calculated as seen in Ext.B2, it would be 28.850 cents and in such circumstances, courts below should not have RSA 609/11 5 dismissed the counter claim on the ground that defendants have not established their title to 28.950 cents. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though joint written statement was filed by all the defendants, it was the specific case that counter claim B schedule property exclusively belongs to the third defendant and counter claim C schedule property exclusively belong to the fourth defendant. Counter claim is for a decree for injunction respectively in favour of defendants 3 and 4, restraining respondents 1 and 2 from causing obstruction to the construction of a compound wall on the northern boundary of counter claim B and C schedule properties. Though defendants 3 and 4 challenged the dismissal of the counter claim prayed for by RSA 609/11 6 them before the first appellate court, they did not challenge the dismissal of the appeal confirming the dismissal of the counter claim. Instead only defendants 1 and 2 have filed the appeal, who have no right over the counter claim B and C schedule properties. Therefore, on that sole ground, it is to be found that appellants are not entitled to the counter claim sought in respect of plaint B and C schedule properties. More over, courts below on the evidence found that appellants/defendants have not established title to the entire property as identified by the Commissioner. Suit is not based on title. In such circumstances, defendants cannot be permitted to construct a compound wall enclosing a portion of the property which do not belong to them, unless they establish their title to that property as found by the courts below. As no RSA 609/11 7 substantial question of law is involved, the appeal is dismissed. But it is made clear that dismissal of the counter claim will not be a bar to defendants 3 and 4, seeking a decree based on their title. M.SASIDHARAN NAMBIAR, JUDGE. uj.