IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 RSA.No. 616 of 2011() --------------------- AS.183/2005 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.224/2001 of MUNSIFF COURT, MAVELIKKARA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- SATHEESAN, S/O.LATE VASUDEVAN, REVATHI BHAVANAM, KADAVOOR MURI, KANNAMANGALAM VILLAGE. BY ADV. SRI.S.MOHANAN RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. KUTTAPPAN, S/O.LATE RAMAN, MANOJ BHAVAN, KADAVOOR MURI, KANNAMANGALAM VILLAGE, KANNAMANGALAM P.O. - 690106. 2. MANOJ, S/O.KUTTAPPAN, MANOJ BHAVAN, KADAVOOR MURI, KANNAMANGALAM VILLAGE, KANNAMANGALAM P.O. - 690106. 3. SARASWATHY, W/O.KUTTAPPAN, MANOJ BHAVAN, KADAVOOR MURI, KANNAMANGALAM VILLAGE, KANNAMANGALAM P.O. - 690106. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.616 OF 2011 ............................................ DATED THIS THE 1st DAY OF JULY, 2011 JUDGMENT Plaintiff in O.S.224 of 2001 on the file of Munsiff Court, Mavelikkara is the appellant. Defendants are the respondents. Appellant instituted the suit seeking a decree for injunction restraining the respondents from trespassing into the plaint schedule property contending that respondents are owning the properties to the north of the plaint schedule property and they are having a way of width of 6 feet and another way through the eastern boundary to reach the southern panchayat road and they have no right to trespass into the plaint schedule property. Appellant also contended that because of the friendship, he had permitted respondents to pass through his property on the western side, for easy and convenient access to the road but they have no right to trespass into his property. Respondents resisted the suit contending that their way to the southern panchayat road is through the western side of the plaint schedule property and appellant is not entitled to cause any obstruction to that way. RSA 616/2011 2 2. Learned Munsiff, on the evidence found that there is no way through the eastern side to reach the southern panchayat road from the property of the respondents as claimed in the plaint and there is a way from the property of the respondents to the south upto the panchayat road and without identifying the boundaries of the plaint schedule property and locating the way, appellant is not entitled to the decree sought for. Appellant challenged the judgment before Additional District Court, Mavelikkara in A.S.183 of 2005. Learned Additional District Judge, on reappreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. The argument of learned counsel is that appellant is not disputing the way available to the respondents outside the plaint schedule property on the west and the grievance is only against trespassing into the plaint schedule property and widening the existing way and therefore courts below should have granted a decree for injunction. 4. On hearing the learned counsel, I do not find any RSA 616/2011 3 substantial question of law involved in the suit. The suit is only one for injunction alleging that respondents are attempting to trespass into the plaint schedule property, when they have a way along the eastern boundary of their property as well as another way having a 6 feet width, without specifying through which direction the said way goes. Evidently, such a way has to be proceeded towards the south, if it has to reach the panchayat road. At the time of evidence it was admitted that there exist a way through the western boundary of the plaint schedule property and that property through which the way passes was retained by the owner who assigned the properties to the appellant, respondents and Murali, the owner of the southern property. But, as rightly found by the courts below, when the existence of a way is admitted and the plaint does not disclose the way and suit was instituted as if there does not exist a way through the boundary of the plaint schedule property, and existence of the way is established, attempt is to cut open a new pathway without identifying the exact boundaries of the plaint schedule property and locating the way, a decree as sought for cannot be granted. In such circumstances, I find no substantial RSA 616/2011 4 question of law involved in the appeal. Learned counsel then submitted that subsequent to the disposal of the first appeal, appellant has already instituted a suit for fixation of the boundary and dismissal of the suit may not operate as a bar to claim relief in that suit. If the property claimed by appellant is outside the existing way, dismissal of the suit will not bar the appellant from claiming appropriate relief in that suit. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk