IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 RSA.NO. 529 OF 2010() --------------------- {AS.47/2000 OF THE SUB COURT, OTTAPPALAM IN OS.550/1997 OF MUNSIFF COURT, OTTAPPALAM} .................... APPELLANT(S): (APPELLANT/PLAINTIFF) -------------------------------------------- MOIDEENKUTTY, AGED 66 YEARS, S/O.NEELALE DECEASED VEERANKUTTY, RESIDING AT UMMANAZHI DESOM, PULAPPATTA AMSOM, OTTAPALAM TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SRI.VANDANA MENON SMT.ANJU P.NAIR RESPONDENT(S): (RESPONDENT/DEFENDANT) ---------------------------------------------------- MUHAMMAD, AGED 68 YEARS, S/O.ARONIL MOITHU, R/AT UMMANAZHI DESOM, PULAPPATTA AMSOM, OTTAPALAM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------- R.S.A.No.529 of 2010 --------------------------------------- Dated this the 14th day of September, 2010 JUDGMENT Plaintiff in a suit for injunction is the appellant. Both the courts have negatived the decree sought for. The dispute pertained to the eastern ridge, styled as 'etha' of the plaint property, over which the plaintiff claimed possession and enjoyment. The respondent/defendant, who admittedly, is the property holder on the east, resisted that claim contending that to the west of the ridge there is a pathway and up to that pathway alone the plaintiff has his property. On the materials placed, the trial court, and also the first appellate court, upheld the contention of the defendant and non-suited the plaintiff. Concurrent decision so rendered is challenged in the appeal. 2. I heard the learned counsel for the appellant. An advocate commissioner, after conducting R.S.A.No.529 of 2010 :: 2 :: a local inspection, has filed a report and plan as Exts.C1 and C1 in the case and the site inspection done by the commissioner disclosed that there is no pathway to the west of the ridge in existence, according to the learned counsel. The defendant despite claiming right over the ridge has not produced any material to establish his claim over that ridge, is the further submission of the counsel to contend that on the materials placed, the case of the plaintiff as to having possession and enjoyment of the ridge separating the properties of the plaintiff and defendant should have been accepted and the relief of injunction should have been allowed. 3. Perusing the judgment rendered by the courts below, with reference to the submissions made by the counsel, I find, the plaintiff examined as PW.1 has practically conceded that the claim over the ridge was raised only after carrying out a measurement of his property, a few days before the institution of the suit, R.S.A.No.529 of 2010 :: 3 :: through the Village Officer, and that inspection revealing that the extent of the property situate to the west of the ridge is much less than that is covered by Ext.A1 lease deed. Ext.A1 lease deed, it is to be noted, was executed in favour of the predecessor of the plaintiff in 1968 and the suit was instituted only in 1997. Further more, the eastern boundary of the property covered by the lease deed has been described as pathway. Plaintiff when examined has also conceded that the pathway was to the west of the ridge. Non- existence of the pathway at the time when the advocate commissioner conducted local inspection, pursuant to the order passed by the courts in the suit, under the above circumstance, is of least significance. The question that required to be resolved in the suit, since it was only one for injunction simplicitor, was whether the plaintiff had exclusive possession over the ridge separating his property with that of the defendant. R.S.A.No.529 of 2010 :: 4 :: When his own title deed described the western boundary of his property as a pathway and that has been admitted as situate to the west of the ridge, in the absence of better materials convincingly establishing that the plaintiff has been continuously exercising some right over the ridge in exclusion of the right claimed by the defendant, no decree of injunction could have been passed in his favour. That being so, I find, there is no merit in the challenge canvassed against the concurrent decision rendered by the courts below, non-suiting the plaintiff. Appeal is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.