IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 RSA.No. 193 of 2004() --------------------- AS.31/1999 of II ADDL. DISTRICT COURT, PALAKKAD OS.11/1996 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANTS/APLNT.1,2&4/PLNTS.1&3 AND LRS OF DFNT.3 ---------------------------------------------------------------------- 1. RAMAMOORTHY, S/O. SWAMY KOPPATHI, 213-A, RAILWAY COLONY, POTHANUR, COIMBATORE. 2. GANESAN, S/O. SANKARAN EMBRATHIRI, `SIVAKRIPA', AKATHETHARA AMSOM, KADUKKAMKUNNAM, PALAKKAD TALUK. 3. SUDHA, W/O. JAYASEELAN, BIG BAZAR STREET, DHARAPURAM, TAMILNADU. BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------- 1. RAJAGOPALAN, S/O. LATE ACHUTHA MENON, 15-A, OLD RAILWAY COLONY, OLAVAKKODE P.O., PALAKKAD. 2. K.S. NARAYANAN, S/O. K.RSUBRAMANYA IYER, OLD KALPATHY, PALAKKAD, NOW RESIDING AT SWARAJ, NADAKKAVIL, NEAR RAILWAY GATE, OLAVAKKODE, PALAKKAD. ADV. SRI.ANTONY MUKKATH FOR R1 SRI.JAIRAM.V.MENON FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/12/2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.193 OF 2004 -------------------------------- Dated this the 9th day of December 2010 JUDGMENT Concurrent decision rendered by two courts below nonsuiting the plaintiffs turning down the reliefs canvassed by them for declaration of title and injunction, is challenged in the appeal. Third plaintiff in the suit had passed away during the pendency of the appeal before the lower appellate court and then her legal heirs have been impleaded as additional appellants. Now, present appeal is preferred by the first and second plaintiffs in the suit with the legal heirs of the third plaintiff, impeaching the correctness of the decision concurrently rendered by the two courts that they are not entitled to the declaration and injunction applied for. 2. In the suit, there are two items of properties described as 'A' schedule and 'B' schedule. Both of them together and an adjoining land was obtained by one Gopalan under a purchase certificate, Ext.A1 issued by the Land Tribunal. 'B' schedule is a pathway provided in the property when Govindan sold that property in pieces to several persons including the plaintiffs 1 and 3. First plaintiff who got a portion of the property from Govindan R.S.A No.193 OF 2004 - 2 - assigned his right to the second plaintiff. One Lakshmi Jayanand had also purchased some portion of the property covered by Ext.A1 from Gopalan. By way of subsequent assignments from Lakshmi Jayanand, the defendants got right over the above property. 3. Suit was laid by the plaintiffs seeking a declaration that they alone have right to use 'B' schedule pathway, which had been set apart by Gopalan while selling portions of his property covered by Ext.A1 certificate. The defendants resisted the claim contending that since they have obtained right over a portion of the property covered under Ext.A1 purchase certificate, they too have a right to use 'B' schedule way. Both the courts below, on the materials placed, found merit in the contention raised by the defendants and the plaintiffs were nonsuited. Feeling aggrieved, plaintiffs have preferred this appeal. 3. I heard the counsel on both sides. Perusing the judgments rendered by the courts below with reference to the submissions made by the counsel on both sides, I find that the declaratory relief canvassed by the plaintiffs was rightly and correctly turned down where it has been proved that the defendants by way of assignment from Lakshmi Jayanand had R.S.A No.193 OF 2004 - 3 - obtained portion of a property covered by Ext.A1 purchase certificate, by which they too were vested with a legal right to make use of 'B' schedule pathway. When the plaintiffs were found not entitled to the declaration applied for, it goes without saying that the further relief canvassed by way of an injunction to restrain the defendants, who are found to be having a legal right to make use of the 'B' schedule pathway, could not have been granted, and it was rightly and correctly turned down. There is no question of law leave alone any substantial question of law involved in the appeal, and it is dismissed directing both sides to suffer their cost. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv