IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 RSA.No. 1169 of 2010() ---------------------- AS.121/2008 of II ADDL.SUB COURT,KOZHIKODE OS.93/2007 of ADDL.MUNSIFF COURT, KOZHIKODE-I .................... APPELLANT/PLAINTIFF: ---------------------------------------- EDAKUDI PRASANNA, W/O.LOHITHAKSHAN, RESIDING AT BEYPORE AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): DEFENDANT: --------------------------------------------- THE KOZHIKODE CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION BUILDING, BEACH ROAD, KOZHIKODE-32. ADV. SRI.K.D.BABU,SC,KOZHIKODE CORPORATION FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1169 OF 2010 -------------------------------- Dated this the 13th day of January 2011 JUDGMENT Plaintiff is the appellant. Concurrent decision in a suit for injunction which was found against her, with both courts below negativing her claim, is challenged in this appeal. The dispute involved in the case was in respect of a pathway situate to the east of the plaint property, which, according to the plaintiff, has a width of only 3 feet. The defendant, a local authority, without proceeding under the rules for acquisition, has unlawfully taken steps to widen that pathway annexing portions of the plaint property and also to cut and remove a tree situate on the eastern boundary of that property, which was considered as divine by the plaintiff and the members of his family was her case for the discretionary relief for a decree of perpetual prohibitory injunction. Admittedly, the plaintiff was one among the coowners having right over the suit property, which was originally alloted to the share of her father and his sister under Ext.A1 partition deed. Resisting the suit claim, the defendant had contended that a sum of more than Rs.1,65,000/- had been sanctioned for the maintenance of the road and a major portion of the work was already completed as and when the suit was laid. The width of R.S.A No.1169 OF 2010 - 2 - the pathway situate on the eastern side of the suit property, according to the defendant, was nine feet. Perusing the judgment rendered by the trial court, it is seen, an advocate commissioner deputed by the court conducted inspection more than once and filed reports which were exhibited in evidence as Exts.C1 to C4. The reports indicated as seen from the discussion made by the trial judge that the width of the pathway situate on the east of the plaint property was about nine feet. It is also seen that in the maintenance work carried out by the corporation over the pathway, whatever be its width, that there was some tampering with the suit property on its eastern side, wherein a tree, which is considered sacred, and also a temple are situate. Though the learned counsel for the appellant would submit that both the courts below without taking notice that the rules governing acquisition had been flouted in the maintenance work carried over the pathway at the instance of the corporation, having regard to the nature of the suit claim, a relief of perpetual prohibitory injunction, that alone, without any further case as to any trespass by the Corporation subsequent to the institution of the suit or any claim even for a decree of mandatory injunction, I find, the concurrent decision rendered by the courts below that on the materials placed, where the pathway as per the reports of the R.S.A No.1169 OF 2010 - 3 - advocate commissioner was shown to be having much more than the extent alleged by the plaintiff, the declaining of the relief of injunction and dismissing the suit cannot at all be found fault with. It is open to the plaintiff to file a comprehensive suit and seek appropriate relief on the basis of her title over the property with other co-owners, or on behalf of all the co-owners, in accordance with law. Dismissal of the present suit, which was concerned only with the relief for a decree of injunction, needless to point out, would not be a bar for the institution of such a suit on title. Appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv