IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 RSA.No. 1007 of 2009() ---------------------- AS.77/2008 of SUB COURT, PERUMBAVOOR OS.246/2001 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ---------------------------------------------------- 1. VARGHESE, AGED 53, S/O.VARKEY KOCHERI HOUSE, KRARIYELI KARA KOMBANAD VILLAGE, KUNNATHUNADU TALUK. 2. ALIYAMMA, AGED 51 W/O.VARGHESE,KOCHERI HOUSE, KRARIYELI KARA KOMBANAD VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S)/RESPONDENTS/DEFENDANTS 2 TO 5: --------------- 1. RAMAKRISHNAN, S/O.NARAYANAN KARATTUKUDIYIL HOUSE, KRARIYELI KARA KOMBANAD VILLAGE, KOMBANAD P.O. - 683555. 2. THANKAPPAN, S/O.NARAYANAN KARATTUKUDIYIL HOUSE, KRARIYELI KARA KOMBANAD VILLAGE, KOMBANAD P.O. - 683555. 3. RAGHAVAN, S/O.NARAYANAN KARATTUKUDI HOUSE, SEENAIPPARA BHAGOM KRARIYELI KARA,KOMBANAD VILLAGE, KOMBANAD P.O. - 683555. 4. VARGHESE, S/O.KURIAKOSE, AREEKALPAMCODE KOMBANAD KARA, KOMBANAD VILLAGE, KOMBANAD P.O. - 683555. ADV. SRI.C.M.MOHAMMED IQUABAL FOR R1-3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.1007 OF 2009 ----------------------------------- Dated this the 30th day of September, 2010 J U D G M E N T Plaintiffs in a suit for fixation of boundary and injunction are the appellants. Both the courts have concurrently held that the plaintiffs are not entitled to the reliefs canvassed for. In the present appeal challenging the decrees of the courts below, the appellants have also moved an application for amending the plaint practically accepting the report and plan prepared by an Advocate Commissioner, which substantiated to a larger extent the contention raised by the defendants in the suit that there was mis-description of the property in the plaint over which reliefs were claimed. Suit property as per the plaint description is twenty cents of land lying as a compact plot. Contesting defendants contended that a pathway runs through the property described in the plaint and the plaintiffs right under the title deed, and also possession, is only to the southern portion of that pathway. Setting up their right over the northern portion of the RSA.NO.1007/09 2 pathway in the suit property, they also raised a contention that they have prescribed title over that portion by adverse possession, which, in fact, was not germane or relevant in the nature of the reliefs canvassed in the suit. Whatever that be, the Advocate Commissioner appointed by the court, after conducting local inspection and measurement, found that in the property described in the plaint, a pathway is passing through and it is not lying as a contiguous plot. Under the amendment now sought for filing a separate petition with the appeal, as indicated earlier, the plaintiff seeks correction of the plaint schedule as two separate schedules in tune with the report prepared by the Commissioner. It has also been brought to my notice that previous to the filing of the present suit, the appellants/plaintiffs had instituted a suit for perpetual prohibitory injunction against atleast some of the very same defendants in the present suit, and that suit also ended in its dismissal. So much so, it is evident on the facts presented in the case, the plaintiffs could not have obtained any relief without filing a comprehensive suit on the basis of their title over the property which they claim on the basis of Ext.A1 title deed. Such being the situation presented RSA.NO.1007/09 3 from the proved facts involved in the case, I find no impropriety in the conclusion drawn concurrently by the two courts that the plaintiffs are not entitled to the discretionary relief of perpetual prohibitory injunction. The appeal is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp RSA.NO.1007/09 4