IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 RSA.No. 98 of 2010() -------------------- AS.108/2008 of DISTRICT COURT, KOTTAYAM OS.12/2007 of ADDL.MUNSIFF COURT,KOTTAYAM .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- JOSEPH K.JOSEPH, S/O.JOSEPH, AGED 37 YEARS, RESIDING AT SARPAKKALATHIL HOUSE, UPPOOTTIL JUNCTION, KOTTAYAM VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.RAJEEV V.KURUP SRI.ALEX.M.SCARIA RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- CAPT.JAMES JOSEPH, KALARICKAL (SARPAKKALATHIL), THAZHATHANGADI PO, KOTTAYAM VILLAGE NOW RESIDING AT C-3 MONT FORT APARTMENTS, LOGOS JUNCTION, KOTTAYAM - 686 002. MUTTAMBALAM VILLAGE,KOTTAYAM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.98 of 2010 -------------------------------------- Dated this the 25th day of February, 2010. JUDGMENT Respondent is served but there is no response. Heard counsel for appellant. 2. Second Appeal arises from judgment and decree of learned District Judge, Kottayam in A.S.No.108 of 2008 confirming judgment and decree of learned Additional Munsiff, Kottayam in O.S.No.12 of 2007. Fight is between brothers. Respondent, apprehending that appellant might trespass into the suit property which he acquired as per sale deed No.3564 of 1995 dated 10.11.1995 sued the appellant for a decree for prohibitory injunction against such trespass. Respondent alleged as part of cause of action that on 15.12.2006 there was such an invasion of his right over the suit property. Appellant inter alia, contended that he has no intention to trespass. He denied that he had any illegal designs as apprehended by the respondent. Learned Munsiff considered the question whether respondent has any cause of action to sue the appellant and stated from the evidence of parties that there is intense animosity between them reason being that respondent has some doubts and apprehension about the relationship appellant allegedly has with his wife. Case of respondent regarding apprehension of trespass was accepted and a decree for prohibitory injunction was granted. That was confirmed by the first appellate court. Hence RSA No.98/2010 2 the Second Appeal urging by way of substantial question of law whether courts below are legally justified in granting decree for prohibitory injunction when the identity of the suit property is not proved and whether courts below have misconstrued the evidence on record. 3. So far as title and possession of the suit property claimed by the respondent is concerned there is no dispute and it is proved by Exts.A1 and A2, certified copy of sale deed No.3564 of 1995 and receipt for payment of revenue for the said property. It is not disputed by the appellant also that he used to come to house of respondent though according to him to help the wife and children of respondent who were in trouble. Appellant cited the wife of respondent on his side and examined her as DW2 to speak in his favour. 4. Question is whether courts below were in error in granting relief to the respondent. As I stated it is not disputed that appellant though according to him for helping DW2 and her children used to visit the house of respondent which was not appreciated by the latter. Having regard to the strained relationship between appellant and respondent I do not find reason to think that apprehension of respondent regarding trespass is not genuine. It is sufficient that there is genuine apprehension for the rightful owner in possession of the property. Courts below have exercised the discretion in favour of grant of relief to the respondent. On hearing learned counsel for appellant and going through judgments under challenge I do not find any substantial question of law involved in the matter requiring admission of the Second Appeal. RSA No.98/2010 3 5. Learned counsel submitted that in paragraph No.9 of the judgment of the trial court there is an observation made by the learned Additional Munsiff which pointed an accusing figure on the character of DW2 and the appellant. I have gone through the observation in paragraph No.9 of the trial court judgment. I am inclined to think that such an observation was not necessary to grant relief to the respondent on admitted facts and evidence. Hence the said observation is only to be expunged. Resultantly this Second Appeal is dismissed in limine. But the observation made by the learned Additional Munsiff in paragraph No.9 of the judgment as to the apprehension of respondent regarding alleged relationship between appellant and wife of respondent will stand expunged. ` THOMAS P.JOSEPH, Judge. cks