IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 AS.No. 148 of 1998() ----------------------------- OS.466/1991 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S): PLAINTIFFS ------------------------ *1. RAMAN , AGED 71 YEARS, S/O. KUNJAN POKKATH HOUSE, PANDIYODE, KANNADI THENKURISSI AMSOM, ALATHUR TALUK, PALAKKAD DIST. (DIED) 2. LAKSHMI AGED 66 YEARS, W/O. RAMAN, DO. DO. ADDL. APPELLANTS IMPLEADED. 3. KARUNAKARAN, S/O. LAKSHMY, POKKATH HOUSE, PANDIYODE, KANNADI, THENKURISSI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 4. GANGADHARAN, S/O. LAKSHMY, POKKATH HOUSE, PANDIYODE, KANNADI, THENKURISSI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. ADDL. APPELLANTS 3 AND 4 ARE IMPLEADED AS PER ORDER DTD. 17.6.2010 IN IA. 2051/2010. BY SRI.P.SANTHALINGAM, SENIOR ADVOCATE SRI.A.D.SHAJAN RESPONDENT(S): DEFENDANTS ------------------------ 1. KRISHNAN S/O. PAZHANIMALA ABOUT 65 YEARS (DIED) POKKATH HOUSE, KANNADI, THENKURISSI AMSOM, ALATHUR TALUK PALAKKAD. A.S. NO.148/1998 2. VASU. S/O.PAZHANI, AGED ABOUT 20 YEARS, RESIDING AT MARUTHANKAD, PANDIYODE, KANNADI, THENKURISSI AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 3. KULLI, AGED ABOUT 65 YEARS, DO. DO. 4. RAMAKRISHNAN, S/O. KULLI, AGED ABOUT 32 YEARS, DO. DO. 5. PRABHAKARAN, S/O. KRISHNAN, AGED ABOUT 35 YEARS, DO. DO. 6. NANIYAMMA, W/O. LATE KRISHNAN AGED ABOUT 60 YEARS, POKKATH HOUSE, KANNADI, THENKURISSI AMSOM, ALATHUR TALUK. 7. RAJAN, S/O. KRISHNAN, AGED ABOUT 40 YEARS, DO. DO. 8. NARAYANAN, S/O. KRISHNAN AGED 37 YEARS, RESIDING AT DO. DO. 9. LEELAVATHI D/O. KRISHNN AGED 32 YEARS, DO. DO. 10. SULOCHANA D/O. KRISHNAN AGED 30 YEARS, DO. DO. R3, R5, R6 TO R8 ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.4368/2004 IN AS. NO.148/1998 DISMISSED 30/06/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.148 OF 1998 ............................................. Dated this the 30th day of June, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Palakkad in O.S.No.466/1991. The suit is one for an injunction. The plaintiffs are claiming a decree for injunction against the defendants and the defendants in turn contending that the plaintiffs are not entitled to any relief. It is their case that they have got easement right over the property and therefore in the counter claim they have prayed for declaration of their easement right. The trial court after consideration of the materials had dismissed the suit and allowed the counter claim by declaring the easement right of the defendants over the pathway of 1.8 metres width starting from the panchayat road and proceeding towards the west as done in Ext.C2 plan. 2. I find that no appeal is preferred against the decree granted in the counter claim. It is the settled principle that counter claim is also a separate plaint and law permits filing of one appeal against two decrees but it must be prayed for. : 2 : A.S.NO.148 OF 1998 Unfortunately the plaintiffs in this case have not chosen to challenge the decree granted in the counter claim but only challenged the decree in the injunction suit. So by virtue of non challenge, the decree for easement right becomes final and when the decree for easement right becomes final, there cannot be any injunction with respect to the property in favour of the plaintiffs. So by virtue of non filing of an appeal against the counter claim, the plaintiffs have made the said decree to become final and when it has become final, the present appeal cannot be entertained. Therefore the appeal fails and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. cl : 3 : A.S.NO.148 OF 1998 M.N. KRISHNAN, J. ........................................... A.S.NO.148 OF 1998 ............................................. 30th day of June, 2010. J U D G M E N T