IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 RSA.No. 1130 of 2009() ---------------------- AS.149/2005 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.119/2003 of II ADDL.MUNSIFF COURT, TRIVANDRUM .................... APPELLANTS/RESPONDENTS 2 & 3/DEFENDANTS 2 & 3: ------------------------------------------ 1. VELYUDHAN NAIR, S/O.KESAVAN PILLAI T.C.9/2 DIOMOND HILL, VELLAYAMBALAM, THIRUVANANTHAPURAM. 2. RADHAKRISHNAN NAIR, S/O.KESAVAN PILLAI T.C.9/2 DIOMOND HILL, VELLAYAMBALAM, THIRUVANANTHAPURAM. BY ADV. SMT.M.HEMALATHA SRI.DINESH R.SHENOY RESPONDENT(S)/APPELLANT/PLAINTIFF: --------------- N.RAJAGOPAL, S/O.LATE PUNNAKKAL NARAYANA PILLAI, MARINE ENGINEER, RESIDING AT ARAMAM VANCHIYOOR, THIRUVANANTHAPURAM,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER R.RRMAKRISHNAN NAIR S/O.LATE DR.S.K.RAMAN PILLAI, RESIDING AT ARAMAM VANCHIYOOR, THIRUVANANTHAPURAM. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.D.SAJEEV [CAVEATOR] FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/10/2010, THE COURT ON 18/10/2010 PASSED THE FOLLOWING: R.S.A.NO.1130/2009 ORDER ON I.A.NO.833/2010 IN R.S.A.NO.1130/2009 DISMISSED. 18.10.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.1130 OF 2009 ----------------------------------- Dated this the 18th day of October, 2010 J U D G M E N T Defendants 2 and 3 in O.S.No.119 of 2003 of the IInd Additional Munsiff Court, Thiruvananthapuram are the appellants. The above suit was filed by the respondent for a decree of injunction to restrain the defendants from trespassing upon and interfering with their possession and enjoyment of the plaint schedule property. The trial court dismissed the suit, but, in the appeal preferred by the plaintiff reversing the dismissal, a decree was granted in his favour. That decree passed by the lower appellate court is challenged in this second appeal. 2. The claim of the plaintiff over the plaint property was on the basis of A2 exchange deed entered between the plaintiff on the one side and the defendants and another on the other side. Under A2 deed, in exchange of the property of the plaintiff, he RSA.NO.1130/2009 2 was alloted two plots, one having an extent of 3.157 cents and the other 1.307 cents, was his case. 'B' schedule in that deed, the properties referred to above were exchanged in favour of the plaintiff in lieu of 'A' schedule under that deed to the counterparts, the defendants and another. A2 exchange deed was executed, according to the plaintiff, pursuant to mediation between the parties after a portion of the common pathway set apart in B1 partition deed, wherein the predecessor of the plaintiff (his mother) and also defendants 1 and 2 in the present suit were parties, was trespassed upon and constructions were put up in the trespassed area by the defendants. In B1 partition deed, the 'H' schedule, which was shown as plot No.10 in a plan attached thereto was allotted to the mother of the plaintiff and 'F' schedule shown as plot No.11 in the plan was alloted to defendants 1 and 2. A common pathway set apart under the partition deed adjoining plot No.10 alloted to the mother of the plaintiff was trespassed upon and construction over that area was effected by defendants 1 and 2. The disputes emanating therein were settled between the parties and A2 exchange deed RSA.NO.1130/2009 3 was executed, by which, in lieu of the trespassed area shown as 'A' schedule in the deed, the defendants along with another exchanged two plots from plot No.11 on its east and west, one plot having an extent of 3 cents and 157 sq.links and the other plot 1 cent and 307 sq.links, both covered by 'B' schedule described under the exchange deed. Those plots exclusively enjoyed by the plaintiff, as pathways for access to the common road provided in B1 partition, is interfered with and his enjoyment is obstructed by the defendants, was the case of the plaintiff for the decree of injunction against them. Though the claim of the plaintiff for such decree was resisted on various grounds by the defendants even contending that the plan attached to B1 partition deed was incorrect, the lower appellate court has found such contentions are meritless and not available to the defendants in view of the dismissal of a previous suit filed by them impeaching A2 exchange deed, seeking to set it aside as invalid and not binding on them. As against the dismissal of such a suit challenging A2 exchange deed by the defendants, there was a further appeal at their instance, which too, had been RSA.NO.1130/2009 4 dismissed for default. So much so, the parties are bound by A2 exchange deed, by which, the plaintiff in exchange of another property was given exclusive right over the 'B' schedule under that deed (the plaint schedule property) was the view taken by the lower appellate court to grant the decree applied for in the suit. 3. Now, in the second appeal, the only challenge pressed into service by the learned counsel for the appellants questioning the correctness of the decree passed by the lower appellate court in reversal of the dismissal of the suit by the trial court is that the plan prepared by the Commissioner identifying 'B' schedule property under A2 exchange deed was incorrect. Whereas, the plaint 'B' schedule in A2 exchange deed, with the two plots together have got 4.464 cents only, as per Ext.C1(a) plan prepared by the advocate commissioner, the plaint schedule comprising the two plots, on either side of plot No.11 in B1 partition deed, has been determined as having an extent of 6.273 cents and, so much so, a decree of injunction in respect of an RSA.NO.1130/2009 5 excess area than what was claimed by the plaintiff had been granted by the lower appellate court, which was not even sought for by the plaintiff, is the argument raised to contend that the identification of the plaint schedule by the advocate commissioner was incorrect and the decree passed in favour of the plaintiff is liable to be interfered with and a proper identification, after having measurement afresh of the suit property, by a remission of the case is called for. Admittedly, the plaint schedule property comprises of two pathways, well demarcated by boundaries on both sides, one on the east and the other on the west on plot No.11 of B1 partition deed, both having connection to the common road provided under the partition deed. True, the identification made by the Commissioner shows of the excess area in the pathways now in existence than the extent described under the plaint schedule, which, admittedly, is a verbatim reproduction of B schedule in A2 exchange deed. How far and to what extent the excess area seen in the pathways could be canvassed by the defendants to assail the decree of injunction granted in favour of the plaintiff, has necessarily to be RSA.NO.1130/2009 6 examined with reference to the totality of the proved facts and circumstances presented in the case. The defendants, who have executed A2 exchange deed, that too, pursuant to alleged trespass over the common portions of the pathway provided in B1 partition deed, had even questioned the deed filing a suit against the plaintiff. The dismissal of that suit was also challenged in an appeal but of no avail. So much so, the right of the plaintiff over B schedule property under A2 exchange deed is no more open for challenge by the defendants. What has been scheduled in the plaint by the plaintiff, it is not disputed, was only the property obtained by them in exchange, B schedule under that deed. Plaintiff did not seek for a decree over any larger extent than what is described under B schedule in A2 exchange deed. Exclusive right, possession and enjoyment of the plaintiff over B schedule described as the plaint schedule is not open to challenge by the defendants/present appellants. Then the only question is whether such property, on identification by the commissioner, was found to be having a larger extent would enable the defendants to resist the decree for injunction RSA.NO.1130/2009 7 canvassed in the suit by the plaintiff. In the context, it is to be noticed that only a formal objection was filed by the defendants to the report and plan. Perusing the copy thereof handed over to me, I find that no tenable objection had been raised over the identification of the plaint schedule property. More so, the defendants did not examine the advocate commissioner to impeach his report and plan on any objection which could have been canvassed by them against his report and plan. It is also seen from the report of the Commissioner that the two pathways described under the plaint schedule has well demarcated boundary walls on both sides. It is further shown by the evidence let in the case that the plaintiff is in exclusive possession and enjoyment of both pathways determined by the advocate commissioner under Ext.C1 (a) plan. Suit being one for perpetual prohibitory injunction alone, having regard to the backdrop of the case that the defendants even after executing A2 exchange deed had impeached its validity, but of no avail, and the plaintiff in his suit has sought for decree of injunction only over the property exchanged to him under that deed, I find the RSA.NO.1130/2009 8 decree granted by the court below accepting the report and plan of the advocate commissioner, which showed that the pathway now in existence and enjoyment by the plaintiff is having more area in extent, on that count alone is not liable to be interfered with in second appeal. No question of law leave alone any substantial question of law is involved in this appeal. Appeal is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp RSA.NO.1130/2009 9