IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 RSA.No. 1235 of 2008() ---------------------- AS.1/2004 of ADDL.SUB COURT, THALASSERY OS.623/2000 of PRINCIPAL MUNSIFF COURT,KANNUR .................... APPELLANTS/RESPONDENTS 2 TO 4 /DEFENDANTS 2 AND 3 ------------------------------------------------------------ 1. PUTHEN PURAYIL SASEENDRAN, S/O.RAMAN, MISSION COMPOUND, NEAR WELCOME TYRES, ELAYAVOOR AMSOM, CHOVVA DESOM, P.O.CHOVVA, KANNUR.6 2. PUTHEN PURAYIL SURESH, S/O.RAMAN, MISSION COMPOUND, NEAR WELCOME TYRES, ELAYAVOOR AMSOM, CHOVVA DESOM, P.O.CHOVVA, KANNUR.6 3. N.C.PRIYA, W/O.SURESH, PRIYA NIVAS, P.O.CHOVVA, EDACHOVVA, KANNUR. BY ADV. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA RESPONDENT(S): APPELLANTS & ADDL.RESPONDENT NO.5/PLAINTIFFS ----------------------------------------------------- 1. CHALADAN KARTHIANI, D/O.KRISHNAN, CHALADAN HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O.CHOVVA, KANNUR 6. 2. CHALADAN NALINI, D/O.KRISHNAN, CHALADAN HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O.CHOVVA, KANNUR 6. 3. CHALADAN RAVEENDRAN, S/O.KRISHNAN, CHALADAN HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O.CHOVVA, KANNUR.6 4. CHALADAN RAMACHANDRAN, S/O.KRISHNAN, CHALADAN HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O.CHOVVA, KANNUR 6 5. CHALADAN GEETHA, D/O.KRISHNAN, CHALADAN HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O.CHOVVA, KANNUR 6. RSA NO. 1235/2008 2 6. CHALADAN RAMESHAN, S/O.KRISHNAN, CHALADAN HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O.CHOVVA, KANNUR 6. 7. MUMEMBATH MALAYIL RADHAKRISHNAN, S/O.KUNHIKANNAN, SMER NIVAS, CHEMBILODE AMSOM, CHALA KIZHAJJERJARA DESOM, KANNUR DISTRICT. ADV. SRI.C.KRISHNAN(KANNUR) FOR R7 SRI.V.BINOY RAM FOR R1,3 TO 6 SRI.K.SANKARA NARAYANAN (MAHESHWARAN) FOR R1,3 TO 6 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1235 of 2008 -------------------------------------- Dated this the 5th day of October, 2009. JUDGMENT This Second Appeal arises from judgment and decree of learned Additional Sub Judge, Thalassery in A.S.No.1 of 2004 reversing judgment and decree of learned Principal Munsiff, Kannur in O.S.No.623 of 2000. Respondents sued appellants for a decree of prohibitory injunction against trespassing into the suit property, committing waste and widening the way along its eastern side. They claimed that they purchased the suit property from the allottees under a partition deed of the year 1967. Appellants have ten cents of property on the northern side of the suit property. Appellants got it from the allottees under the above said partition deed. According to the respondents, along the east of the schedule property there is a lane having width of four feet which appellants and respondents are using. Respondents have no objection in appellants also using the said lane but they are attempting to widen the said lane and hence the suit. Appellants contended that the width of the lane is not four feet but seven feet and that respondents put up laterite stones to make it appear that width of the lane is only four feet. Respondent No.6 gave evidence as PW1 and proved Exts.A1 to A5 and C1 to C4. Appellant No.2 gave evidence as DW1 and proved Exts.B1 to B7. Learned Munsiff found that contention of respondents regarding width of the lane is not correct and that measurement revealed that respondents are in possession of more extent of property than RSA No.1235/2008 2 what is stated in their assignment deed. Holding so, the suit was dismissed. Respondents took up the matter in appeal. First appellate court found that appellants were not able to prove width of the lane along eastern side of the suit property as seven feet, reversed the judgment and decree of the trial court and decreed the suit. That judgment and decree are under challenge in this Second Appeal. Learned counsel for appellants would riase as a substantial question of law that when respondents have claimed title over the property as per Ext.A1, they could not claim relief in respect of any portion in excess of what is stated in Ext.A1. It is also contended by learned counsel that respondents have immediately before filing the suit reduced width of the lane and that judgment and decree of first appellate court has resulted in perpetuating illegality committed by respondents. 2. Appellants and respondents trace title to the respective properties to Ext.A1, partition deed. The dispute is not regarding the extent of the property owned and possessed by the respondents but regarding width of the lane along eastern side of the suit property which according to the respondents is four feet and which according to the appellants, is seven feet. Exts.C1 to C4, reports and plans prepared by the advocate commissioner would show that towards north of the suit property along the side of property of appellants width of the lane is about seven feet. It is basing on that, appellants claimed that width of the lane on the east of the suit property is also seven feet. 3. In Ext.A1, partition deed at page No.7 it is stated that on the east of RSA No.1235/2008 3 item Nos.2 and 3 of the E schedule there in (ie. the suit property) space is left for a way but there is no reference to the width of the way. Therefore, the documents produced by either side are not helpful to decide the width of the lane on the eastern side of the suit property. Learned counsel has invited my attention to the reports and plans prepared by the advocate commissioner and argued that on the south of the suit property, width of the lane is 1.55 metres while it goes towards north, width is gradually reduced and on the east of the property of the appellants it has got width of about seven feet. 4. The mere fact that respondents have got property more than what is acquired by them on the strength of Ext.A1 itself is not sufficient to show that on the eastern side width of the lane was seven feet and a portion of the lane has been encroached. I stated that this is not a suit in respect of the extent claimed by the respondents. Advocate commissioner has reported that on the east of the suit property there is an electric post where the width of the disputed lane is only four feet and on either side of the electric post there was two rows of laterite stones which according to the appellants were put by respondents recently. But there is no evidence in that line. There is also no evidence when the electric post was installed on the east of the suit property. It is not the case of the appellants that the electric post was put up recently at the instance of the respondents. If as a matter of fact width of the lane at that portion was then seven feet, it is quite unlikely that the electric post was installed almost at the centre of the lane. There is no case for appellants that they objected to the installation of the electric post on the lane at any point of time. Advocate RSA No.1235/2008 4 commissioner has reported that the way on the east of the suit property is not motorable. The presence of the electric post which is not shown to be a recent development indicates the width of the lane on the eastern side of the suit property. That, towards the southern extremity of the disputed lane where the property is owned by a third party the width of the lane is only 1.55 metres also negatives the contention of the appellants regarding width of the lane. It is considering these aspects that first appellate court reversed judgment and decree of the trial court and granted relief to the respondents. Respondents are not disputing the right of appellants to use the four feet wide lane on the east of the suit property. On going through the judgment and decree under challenge and hearing learned counsel I do not find any substantial question of law involved in this Second Appeal. First appellate court has considered the evidence and come to the conclusion that appellants were not able to show that the width of the lane on the eastern side of the suit property was seven feet and that was encroached upon by the respondents. Resultantly, this Second Appeal fails. It is dismissed. I.A.No.2675 of 2008 will stand closed. THOMAS P.JOSEPH, Judge. cks