IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 RSA.No. 218 of 2011() --------------------- AS.12/2009 (A.S.10/2009) of SUB COURT, QUILANDY OS.142/2007 of MUNSIFF COURT, QUILANDY .................... APPELLANTS/ APPELLANTS/ 1ST AND 2ND DEFENDANTS: ---------------------------------------------------------------- 1. GANGADHARAN, AGED 65, S/O.(LATE) APPU, RESIDING AT ARANGATT, VENGALAM DESOM, CHEMANCHERY VILLAGE, KOYILANDY TALUK. 2. ARANGATT VASANTHA, AGED 58, W/O.GANGADHARAN, RESIDING AT ARANGATT, VENGALAM DESOM, CHEMANCHERY VILLAGE, KOYILANDY TALUK. BY ADV. SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU, SMT.A.SIMI SMT.VIDYA V.DEVAN RESPONDENT/ RESPONDENTS/ PLAINTIFFS & SUPPLEMENTAL 3RD DEFENDANT --------------------------------------------------------------------------------------- 1. SHAMSEERA, AGED 26, D/O.KOYIMADAMKANDY ASEES, RESIDING AT THEKKEKUNIYIL, PALURU DESOM, THIKKODI VILLAGE, KOYILANDY TALUK-673 529. 2. M.ABDUL RAZAK, AGED 47, S/O.MOIDEEN, MALANCHERI HOUSE, THIRUVANGUR AMSOM, VENGALAM DESOM, P.O.KATTILPEEDIKA, KOYILANDY TALUK. NOW WORKING AT P.B.NO.43312,32048, HAWALY, KUWAIT, REP. BY P/AT HOLDER MALANCHERI MOIDEEN, AGED 75, S/O.KUNHAYAN, MALANCHERI HOUSE, THIRUVANGUR AMSOM 3. THE SECRETARY, CHEMANCHERY GRAMA PANCHAYAT, (SPECIAL GRADE), P.O.CHEMANCHERY, KOYILANDY TALUK-673 305. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No.218 OF 2011 =========================== Dated this the 1st day of March,2011 JUDGMENT Defendants 1 and 2 in O.S.142/2007 on the file of Munsiff Court, Koyilandy are the appellants. Respondents 1 and 2 are the plaintiffs and third defendant in the suit. Respondents 1 and 2 instituted the suit seeking a decree for injunction. Appellants resisted the suit contending that they have got a right of way and on the west of the plaint schedule property, there is a way which starts from Vengalam-Vellikulangara road and proceeds towards the north. They also preferred a counter claim seeking a decree for removal of the obstruction caused to the public way. Learned Munsiff on the evidence dismissed the counter claim and granted a decree for injunction in favour of respondents 1 and 2. R.S.A.218/2011 2 Appellants filed A.S.10/2009 challenging the decree granted in favour of respondents 1 and 2. A.S.12/2009 filed challenging the dismissal of the counter claim. Learned Sub Judge on reappreciation of evidence allowed A.S.10/2009 holding that respondents 1 and 2 are not entitled to the decree for injunction sought for. A.S.12/2009 challenging the counter claim was dismissed. This appeal is filed challenging the dismissal of A.S.12/2009 whereunder the dismissal of the counter claim was confirmed by the Sub Judge. 2. Learned counsel appearing for the appellants was heard. 3. On hearing the counsel, I do not find any substantial question of law involved in the appeal. The written statement and the additional written statement filed by appellants establish that their case is that a public way starts from Vengalam- Vellikulangara road which runs towards the north and the public inclusive of appellants have got a right of way to use that way. It is specifically R.S.A.218/2011 3 pleaded that at the point where the alleged public way starts from the southern public road, the property which lies to the east of the way is for Leela and west of Swaminathan. The said Leela is the assignor of respondents 1 and 2. Plaint schedule property obtained from Leela lies to the north of the property of Leela. Appellants are claiming that the public way runs to the west of the said property obtained by respondents 1 and 2 under Ext.A1. Written statement shows that it was specifically pleaded by appellants that Leela, the owner in possession of the property which lies to the east of the public way, constructed a compound wall on the entire southern boundary of her property. It is the allegation that while constructing the compound wall, she encroached a portion of the public way namely having a width of one meter and length of 10 meters and extended the compound wall towards the north encroaching that portion of the public way. It was also contended that Leela extended the southern compound wall R.S.A.218/2011 4 further towards the west closing the public way and extended it up to the eastern boundary of the property of Swaminathan and Swaminathan extended it further towards the eastern boundary of the property. It is in such circumstances, the written statement shows that before filing the written statement Leela who is not a party to the suit had blocked the alleged public way by constructing a compound wall on the southern side of the public way namely at the point where the alleged public way starts from southern public road. As Leela and Swaminathan are not parties to the suit or the counter claim, no decree could be granted in favour of the appellants directing removal of the compound wall constructed blocking the public way. In such circumstances, when on the facts pleaded, appellants are not entitled to get a decree in the counter claim. No substantial question of law is involved in the appeal. Appeal is dismissed. The remedy of the appellant is to institute a suit for declaration of the right impleading Leela and R.S.A.218/2011 5 Swaminathan. The dismissal of the appeal will not bar the appellants from instituting a proper suit claiming proper relief in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006