IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 RSA.No. 498 of 2008() --------------------- AS.33/2004 of SUB COURT,KATTAPPANA OS.417/1997 of MUNSIFF COURT, PEERMEDU .................... APPELLANT(RESPONDENT IN THE LOWER APPELLATE COURT AND 2ND DEFENDANT IN THE TRIAL COURT --------------------------------------------------------------------- ASWIN GEORGE, AGED 37, S/O ABRAHAM, PEERMETTIL HOUSE, PEERMADE IDUKKI DISTRICT. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENT (APPELLANT IN THE LOWER APPELLATE COURT AND PLAINTIFF IN THE TRIAL COURT). ------------------------------------------------------------------------- BITTOJ MANICHAN, S/O MANICHAN, THARAPPEL VEETIL,KONDOOR, MEENACHIL TALUK, KOTTAYAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A No. 498 of 2008 A ========================== Dated this the 22nd day of September, 2008. JUDGMENT The 2nd defendant in O.S. No. 417 of 1997 on the file of the Munsiff's Court, Peermade is the appellant in this Second Appeal. The said suit was one for perpetual injunction against trespass. The plaint schedule property is described as one acre of land comprised in Survey Nos. 176/42 and 176/122. Pending suit, the plaintiff also took out a commission to identify the plaint schedule property. The Commissioner filed Ext. C1(a) report and plan dated 08.01.1998. After the appearance of the defendants, the Commissioner also filed Ext.C2 (a) additional report. As per the said report, it was submitted that after survey assistance the commissioner identified the plaint schedule property as comprised in Survey Nos. 176/42 and 176/122. The commissioner also noticed that the property of the defendants is comprised in Survey No. 176/228. Even though the learned Munsiff dismissed the suit holding, inter alia, that the plaintiff had failed to identify the plaint schedule property, the lower appellate court namely Sub Court, Kattappana in A.S. No. 33 of 2004 after a re-appraisal of the oral and documentary evidence in the case came to the conclusion that the plaintiff has succeeded in identifying the plaint schedule R.S.A. No. 498/2008 : 2: property and granted a decree for perpetual injunction. It is the said decree which is assailed in this Second Appeal. 2. The learned counsel appearing for the appellant/2nd defendant made the following submission before me in support of the appeal:- The defendants had earlier filed a suit as O.S No. 406 of 1997 for a perpetual injunction against the plaintiff in respect of the southern property admeasuring 55 cents. The suit was decreed and the decree has become final. It was thereafter that the plaintiff filed the present suit seeking perpetual injunction without properly identifying the plaint schedule property. His attempt is to grab property of the defendant. The decree passed by the lower appellate court without properly identifying the plaint schedule property, cannot be sustained. 3. I am afraid that I cannot agree with the above submissions. The commissioner has identified the plaint schedule property as the one acre of land comprised in Survey Nos. 176/42 and 176/122. The southern property of the defendant and admeasuring 55 cents is comprised in Survey No. 176/228. It may be true that the defendants have obtained a decree against the plaintiff with regard to the 55 cents property lying to the south of the present plaint schedule property. When the plaintiff does not claim any property lying to the south of the R.S.A. No. 498/2008 : 3: plaint schedule property as comprised in Survey No. 176/228, the decree obtained in O.S. No. 406/97 does not preclude the plaintiff from filing the present suit in respect of the property comprised in two other different survey numbers. If according to the appellants, the plaintiff has encroached upon a portion of their property, then the present decree will not prevent them from filing a suit for recovery and possession on the strength of their title. I, therefore, do not find any good ground to interfere with the decree passed by the lower appellate court after a careful re-appraisal of the oral and documentary evidence. This Second Appeal is accordingly dismissed. Dated this the 22nd day of September, 2008. V. RAMKUMAR, JUDGE. rv R.S.A. No. 498/2008 : 4: