IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 RSA.No. 875 of 2007() --------------------- AS.8/2002 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.456/1998 of MUNSIFF COURT,CHENGANNUR .................... APPELLANTS/RES.1,2 & 4/DEF.1,2 & 4 ------------------------------------------------------ 1. NARAYANAN NAIR, S/O. GOVINDA PILLAI, MADATHIL HOUSE, KODUKULANJI NARODU MURI, VENMONY VILLAGE, CHENGANNUR TALUK. 2. THANKAMMA, W/O. MADHAVA KURUP, MADATHIL HOUSE, KODUKULANJI KARODU MURI, VENMONY VILLAGE, CHENGANNUR TALUK. 3. AJI, S/O. THANKAMMA, MATATHIL HOUSE, KODUKULANJI KARODU MURI, VENMONI VILLAGE, CHENGANNUR TALUK. BY ADV. SRI.VINOD J.DEV SRI.PRAMOD J.DEV RESPONDENTS/APPELLANT & 3RD RES./PLAINTIFF & 3RD RESPONDENT -------------------------------------------------------------- 1. KARTHIYAYANI AMMA, D/O. LATE KUNJAMMA, VETTIYIL HOUSE, KODUKULANJI KARODU MURI, VENMONY VILLAGE, CHENGANNUR TALUK. * 2. RAJENDRAN, (Deleted) S/O. RAGHAVAN, MATATHIL THAZHATHETHIL HOUSE, VALADI, VENMONY VILLAGE, CHENGANNUR TALUK. ADV. SRI.S.MOHANAN FOR R1 (*- RESPONDENT NO.2 DELETED FROM the PARTY ARRAY AT THE RISK OF the APPELLANT AS PER ORDER DATED 22-02-2010 IN I.A.NO.437/10 IN RSA) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.875 of 2007 --------------------------------------- Dated this 29th day of March, 2010 JUDGMENT Heard both sides. 2. Defendant Nos.1,2 and 4 are the appellants before me. They are aggrieved by the judgment and decree of learned Additional District Judge-I, Mavelikkara in A.S.No.8 of 2002 granting decree in favour of respondent No.1/plaintiff by reversing judgment and decree of trial court which dismissed the suit. According to the plaintiff, she got the suit property as per Ext.A1, partition deed No.3768 of 1959 and on its north is the Panchayath road. On the west and south of the suit property there are pathways used by the neighbouring people including defendants who owned property on the further south. Plaintiff apprehended that defendants might trespass into the suit property and cut open a new pathway along its eastern side for access to the Panchayath road on the north. Hence the suit for decree for prohibitory injunction. Appellants/defendant Nos.1, 2 and 4 contended that plaint schedule description takes in puramboke way used by defendant Nos.1, 2 and 4 along eastern portion of the suit property. That pathway has width of 5 feet and originated from the panchayath road on the northern side. Trial court on the strength of Ext.B1, survey plan and report of Advocate Commissioner took the view that along the R.S.A.No.875 of 2007 2 eastern portion of the suit property there was puramboke land along the eastern portion of the suit property and dismissed the suit. In appeal at the instance of respondent No.1/plaintiff, learned Additional District Judge held that Exts.C1 to C3 do not show existence of any such pathway along the eastern side of the suit property which was being used by the appellants/ defendant Nos.1, 2 and 4 and others. On that finding, first appellate court reversed judgment and decree of the trial court and granted decree in favour of appellants/defendant Nos.1, 2 and 4 as prayed for, but making it clear that judgment and decree will not be a bar for defendants moving appropriate authorities for removal of the encroachment if any made by the plaintiff in “puramboke” land and restore the “puramboke” way, if any, in existence in accordance with law. Learned Additional District Judge also made it clear that the judgment and decree will not be a bar for the Government authorities to remove the encroachment, if any, made in “puramboke” property by the plaintiff in accordance with law. That judgment and decree are under challenge in this second appeal raising by way of substantial question of law whether first appellate court was justified in reversing judgment and decree of the trial court. It is submitted by counsel on both sides that after passing of the impugned judgment and decree, panchayath has taken steps to take possession of the disputed 'puramboke' land against which respondent No.1/plaintiff has filed O.S.No.224 of 2008 impleading all the necessary R.S.A.No.875 of 2007 3 parties including appellants/defendant Nos.1, 2 and 4 and praying for a declaration that there is no 'puramboke' land on the south or east of the property belonging to respondent No.1/plaintiff and for other consequential reliefs. Learned counsel for appellants/defendant Nos.1, 2 and 4 contended that in the light of the above development judgment and decree under challenge may be made subject to the result of O.S.No.224 of 2008. Learned counsel also requested for a direction for early disposal of O.S.No.224 of 2008. I have heard learned counsel for respondent No.1/plaintiff also. 3. In the light of the safeguards already made by the learned Additional District Judge in the judgment and decree under challenge it is not necessary to make any further direction as prayed for by the learned counsel for appellants/defendant Nos.1, 2 and 4. If ultimately in O.S.No.224 of 2008 it is held that there is puramboke land as claimed by the panchayath or other authority and if such portion is left open as pathway, there can be nodoubt that the appellants would have right of access along the said portion. That is a consequence of the decision to be rendered in O.S.No.224 of 2008 and what the Government or panchayath authorities proposed to do with respect to the alleged 'puramboke' land. On going through the judgment and decree of learned Additional District Judge I do not find any substantial question of law involved in this second appeal requiring its admission. 4. So far as prayer for direction for early disposal of R.S.A.No.875 of 2007 4 O.S.No.224 of 2008 is concerned, I do not consider it necessary to issue any such direction while disposing of this appeal. It is open to the parties concerned to request the court where O.S.No.224 of 2008 is pending for early disposal of that suit. In the light of what I have stated above and subject to the observations made above the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/