IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 SA.No. 532 of 1997(E) -------------------------- AS.78/1995 of PRL.S.C.,THALASSERY OS.349/1992 of MUNSIFF COURT, THALASSERY .................... APPELLANT(S)/APPELLANT/PLAINTIFF. ----------------------------------------------- CHEEKKILODAN CHERIYA KOOVERI USMANKUTTY, THIRUVANGAD AMSOM, DESOM, THALASSERY TALUK. BY ADV. SRI.R.PARTHASARATHY RESPONDENT(S)/RESPONDENTS/DEFENDANTS ------------------------------------------------------- 1. DARUSALAM YATHEEMKHANA, REPRESENTED BY ITS MANAGER P.K.UMMERKUTTY, PILAKKOOL, THALASSERY MUNICIPALITY, THALASSERY TALUK. 2. DR. C.O. UMMERKUTTY, PRESIDENT, DARUSALAM YATHEEMKHANA, KUNNOTH PALLI, CHIRAKKARA, THALASSERY MUNICIPALITY, THALASSERY TALUK. 3. N.N.AHAMMED HAJI, SECRETARY DARUSALAM YATHEEMKHANA, TAJ LODGING HOUSE, LOGANS ROAD, THALASSERY, THALASSERY TALUK. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ ORDER ON C.M.P. NO.1401/1997 IN S.A. NO. 532/1997 DISMISSED 10/12/2010 SD/- HARUN-UL-RASHID, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ HARUN-UL-RASHID, J. ------------------------ S.A.No.532 Of 1997 ---------------------- Dated this the 10th day of December, 2010. J U D G M E N T The following substantial questions of law are formulated in the appeal. i) Whether the courts below were right in law in denying the prayer for injunction when the plaintiff has proved that he is in possession of B schedule property and the compound wall by the recitals in Ext.A3 document and other supporting evidences. ii) Whether the failure of the courts below in adverting to material evidence in the case has not affected its decision to deny relief to the plaintiff. 2. The plaintiff in O.S.No.349/1992 on the file of the Munsiff Court, Thalassery, is the appellant. The appeal is directed against the decree and judgment in A.S.No.78/1995 on the file of the Sub Court, Thalassery. Suit was filed for a perpetual injunction restraining the defendants from demolishing the wall situated in the B schedule property. Trial court held that the plaintiff is not entitled to the injunction as prayed for. In the appeal preferred by the plaintiff the decree and judgment passed by the Munsiff Court was confirmed and the appeal was dismissed. S.A.No.532 Of 1997 ::2:: 3. The dispute is with regard to the compound wall situated on the western side of the plaint B schedule pathway. B schedule is a narrow strip of land used as a way leading to the residence of the plaintiff. It is a common case of the parties that there is a compound wall on either side of plaint B schedule pathway. The defendant is owning and enjoying the property on the western side of the pathway. The suit was filed by the plaintiff apprehending demolition of the western compound wall of B schedule pathway. The defendants filed a written statement denying the plaint averments and prayed for dismissal of the suit. 4. The trial court recorded oral and documentary evidence. The oral evidence tendered by PW1 the plaintiff, PW2 a neighbour and DW1 a member of the executive committee of the Yetheemghana were appreciated. 5. The contention of the plaintiff is that the wall on the western side of the B schedule property which is the way to his house belongs to him and it originally belonged to Metalida Rocha from whom he purchased the property. The defendants on the other hand contented that the wall on the western side of the B S.A.No.532 Of 1997 ::3:: schedule property belongs to them as it was constructed by them as eastern boundary of their property. The property lying on the western side of the plaint B schedule property admittedly belongs to the defendants. They acquired the property in the year 1973 vide Ext.B5. Ext.A1 is the assignment deed by which the plaintiff purchased the plaint A & B schedule properties from Metalida Rocha in 1979. Trial court observed that Exts.A1 & A2 do not say about the existence of the walls or the construction of it by Metalida Rocha. Referring to Ext.A3 agreement the trial court observed that the said Metalida Rocha has given the right of way and as a reciprocation she was directed to put up stone wall on the boundary of the compound wall of her property in her possession and up to the boundary of the shop of one executant on the south, that too after obtaining permission from the Municipality in the name of 7th executant who is the said Metalida Rocha. The trial court concluded that from Ext.A3 agreement it is not seen that permission is given to put up boundary wall on either side of the boundary wall which is permitted to use by these persons. At the same time the trial court observed that the S.A.No.532 Of 1997 ::4:: recitals in the agreement shows that Metalida Rocha is directed to put up wall in the western boundary of the property which is shown as C plot in the plan. The court observed that it could be only the eastern boundary of the way permitted to be used. Defendants' contention is that the boundary walls were put up by them on the four sides of their property and one lies on the western side of the B schedule property is the eastern boundary put up by them. The court also on evidence found that the defendants have put up a supporting wall supporting the disputed compound wall lying on the eastern side of the defendants' wall and as the western boundary of the way. 6. The commissioner submitted Exts.C1 report and C2 plan which shows that a portion of the compound wall is situated on the properties of the plaintiff and defendants. After appreciating the evidence on record the trial court found that there is no evidence to show that the plaintiff has constructed the entire compound wall and therefore held that the plaintiff is not able to prove the possession of the disputed entire compound wall which is on the western side of the plaint B schedule S.A.No.532 Of 1997 ::5:: property. Therefore the trial court dismissed the suit. The appellate court also re-appreciated the facts and held that the plaintiff is not entitled to any relief. 7. The prayer in the suit is to restrain the defendants not to demolish the western compound wall situated in the plaint B schedule way. In a suit for injunction the only question to be examined by the courts below is as to whether the plaintiff is entitled to injunction as prayer for. Various reasons are stated for not granting the relief to the plaintiff. At the same time the court found that a portion of the compound wall is situated in the plaintiff's property. In such situation it is for the plaintiff to establish his title to the compound wall in a properly constituted suit on title. The plaintiff is at liberty to approach the civil court for appropriate reliefs in a properly constituted suit. In the said circumstances, the parties shall maintain status quo as on today for a period of six months. No question of law muchless any substantial questions of law arises for consideration in the appeal. S.A.No.532 Of 1997 ::6:: In the result, the appeal fails and accordingly, dismissed. The plaintiff is at liberty to move the appropriate forum for ventilating his grievances as stated above. In that event the civil court shall decide the issues in accordance with law untrammelled by the observations and findings recorded in O.S.No.349 of 1992 and in A.S.No.78 of 1995. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-