IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 RSA.No. 171 of 2008() --------------------- AS.174/2005 of DISTRICT COURT,KOLLAM OS.804/2002 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANTS/APPELLANTS/PLAINTIFFS ---------------------------------------------------- 1. YESUDASAN, S/O. PATHROSE, DASS BUNGLOW, ELAMPALLOOR, KUNDARA, KOLLAM. 2. MARY ROSAMMA, W/O. YESUDASAN, DASS BUNGLOW, ELAMPALLOOR, KOLLAM. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH STI.T.S.HARIKUMAR RESPONDENTS/ RESPONDENTS/DEFENDANTS ------------------------------------- 1. ROY, S/O. JACOB, THADATHIVILA PUTHEN VEEDU, NANDIRICKAL, CHERUMOODU CHERRY, KOLLAM. 2. MINI MATHEW, W/O. ROY, THADATHIVILA PUTHEN VEEDU, NANDIRICKAL, CHERUMOODU CHERRY, KOLLAM. ADV. SRI.AJITH KRISHNAN FOR R1 & 2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.171 of 2008 --------------------------------------- Dated this 05th day of February, 2010 JUDGMENT Dispute concerned plaint B schedule pathway admittedly situated in between the properties of appellants/plaintiffs and respondents/defendants. Plaint A schedule is 7 cents belonging to the appellants as per Ext.A1, assignment deed No.2368 of 1996. Plaint B schedule is the pathway which according to the appellants has a length of 28 meters, width of 2.40 meters towards its western side and 4 meters towards eastern side (of the plaint A schedule). It is also the version of appellants that the said pathway originated from Kollam- Shencottah road on the further east and is the only means of access for appellants and respondents to their respective properties. Apprehension of appellants is that respondents might annex plaint B schedule to their property. Respondents contended that they have 9 cents on the south of plaint A schedule and on the east and south of plaint B schedule acquired as per sale deed No.1041 of 2002. They claimed that description of the pathway given by the appellants is not correct. They admitted that plaint B schedule is the only access to their property and the property of appellants. Respondents denied that they had any intention to trespass into the said pathway. Appellants produced Ext.A1, document of title in respect of plaint A R.S.A.No.171 of 2008 2 schedule where there is mention of measurements of disputed way as stated in the plaint schedule. Respondent No.1 gave evidence as DW1 and stated that they have no intention to trespass into the said way. Advocate Commissioner inspected the properties and found that plaint B schedule is in existence as claimed by both sides. According to the Advocate Commissioner, width of plaint B schedule on the east is 4 meters and on the west, it is 2.50 meters (as against the claim of appellants that it is 2.40 meters at that point). Courts below found that there is no genuine apprehension for appellants to sue the respondents in view of the contention of respondents that plaint B schedule is the only access to property of appellants as well as respondents and they have no intention to trespass. To sustain a decree for injunction, appellants should have a cause of action. The mere fact that appellants have right of way through plaint B schedule will not by itself form any cause of action to obtain a decree for injunction against respondents. Courts below have rightly answered the issue in favour of the respondents. It is contended by learned counsel that though respondents have stated in the written statement and evidence that they have no intention to trespass into the way, that does not form part of the decree. But I find that courts below have referred to the contention raised by the respondents that they have no intention to trespass into the suit properties and it is accepting that case of R.S.A.No.171 of 2008 3 respondents in the written statement and in the evidence of DW1 that courts below refused to grant injunction in favour of appellants. That is sufficient to allay the apprehension if any of appellants. As such no substantial question of law is involved in the second appeal for a decision. Accordingly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/