IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 RSA.No. 845 of 2010() --------------------- AS.306/2008 of DISTRICT COURT, KOTTAYAM OS.423/2007 of MUNSIFF COURT, VAIKOM .................... APPELLANT/APPELLANT/PLAINTIFF(S): -------------------- AJITHKUMAR, AGED 47, S/O.LATE RAGHAVAN PILLAI, THEKKUM VALLAYIL HOUSE, KULASEKHARAMANGALAM VILLAGE, VAIKKOM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1.MUKUNDAN,AGED 37,S/O.LATE PRABHAKARAN PILLAI, MUKUNDAVILASAM, ONPATHUPRAYIL (H), KULASEKHARAMANGALAM VILLAGE, VAIKKOM TALUK, KOTTAYAM DISTRICT. 2.VIJAYAN,AGED 54,S/O.LATE PRABHAKARAN PILLAI, MUKUNDAVILASAM, ONPATHUPRAYIL (H), KULASEKHARAMANGALAM VILLAGE, VAIKKOM TALUK, KOTTAYAM DISTRICT. ADV. SRI.P.SANJAY FOR R-2 SMT.A.PARVATHI MENON FOR R-2 SRI.BIJU MEENATTOOR FOR R-2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.No.845 of 2010 (A) ----------------------------------- Dated this the 13th day of December, 2010 J U D G M E N T Concurrent decision rendered by the two courts below holding that the appellant/plaintiff is not entitled to the discretionary relief of injunction canvassed for in his suit is challenged in this appeal. 2. I heard the counsel on both sides. The learned counsel for the appellant adverting to the findings entered by the courts below submitted that the appellant was non-suited for the sole reason that he had suppressed some material facts, and thus, not entitled to the equitable relief of the decree of injunction. All the findings entered in the suit, by both the courts, according to the counsel, are in his favour and, further, the defendants, who have resisted the suit claim contending that they have a right of prescriptive easement over a way through the plaint property, during the course of trial, had also given up that defence. The courts below were not correct in non-suiting the plaintiff when R.S.A.NO.845/2010 2 the defendants had given up the challenge raised to resist the suit claim of injunction, is the further submission of the counsel to impeach the decision concurrently rendered declining the decree applied for. Perusing the judgments of the trial court, it is seen, on the materials placed, both courts found that on the southern boundary of the plaint property separating that property with that of the defendants a gap is provided in the wall and from that spot through the plaint property, a pathway in existence had been tampered with just immediately prior to the institution of the suit. The report of the advocate commissioner indicated the existence of a pathway through the plaint property at least to some extent, from the property of the defendants. It was in that contextual background, both the courts have held that the plaintiff had suppressed material facts while seeking the decree of injunction against the defendants. The defendants have given up the plea set up by them as to having a right of prescriptive easement over a portion of the property of the plaintiff as a pathway, does not assume significance where the disentitlement of the discretionary relief by the plaintiff in view R.S.A.NO.845/2010 3 of the material suppression of facts was borne out by the records produced in the case. I do not find any infirmity leave alone any error of law in the finding entered by the courts below concurrently that the plaintiff is not entitled to the relief of the decree of injunction. It is open to the plaintiff to seek appropriate reliefs, as provided under law, on the basis of his title over the property, irrespective of the adverse decision rendered in his present suit for injunction, if so advised. Appeal is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.845/2010 4