IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 RSA.No. 1189 of 2010() ---------------------- AS.225/2005 of ADDL. DIST. COURT (ADHOC) III, PALAKKAD OS.750/2002 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/DEFENDANT: ------------------------------------------------- SURENDRANATHAN, S/O.VELU, R.C.HOUSE, KENATHUPARAMBA, KOPPAM AMSOM, PALAKKAD. BY ADV. SRI.T.M.SUNIL SMT.S.CHITHRA RESPONDENT(S)/RESPONDENT/PLAINTIFF: ----------------------------------- V.SUDHAKARAN S/O.VASU, R.C.HOUSE, KENATHUPARAMBA, KOPPAM AMSOM, PALAKKAD. 678 013 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2010, THE COURT ON 01/12/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.1189 OF 2010 ----------------------------------- Dated this the 1st day of December, 2010 J U D G M E N T Concurrent decision rendered by the two courts below in a suit for injunction granting that discretionary relief in favour of the respondent/plaintiff is challenged in the appeal by the defendant. 2. Plaintiff claimed that the suit property which formed part of 'A' schedule obtained by his father in a previous suit for partition, was, later, settled in his favour by the father under Ext.A1 settlement deed. Pursuant to Ext.A1 settlement deed, he constructed a building, and is in occupation of such building with possession and enjoyment of the plaint property. Alleging obstruction from the defendant in putting up construction of a compound wall in the plaint property, the suit was laid for a perpetual prohibitory injunction to restrain the defendant from trespassing upon and interfering with his peaceful possession R.S.A.NO.1189/2010 2 and enjoyment of the property. The defendant resisted the suit contending that the boundaries shown in the plaint schedule are misleading and that the property on the southern side of the plaint schedule exclusively belong to his family. He also contended that a pathway through the plaint schedule property is under his continuous enjoyment and other members of his family, and, they have obtained a right of easement of necessity over that way. 3. On the materials placed which consisted of PW1 and Exts.A1 to A5 for the plaintiff, DW1 for the defendant and also that of an advocate commissioner as CW1 and Ext.C1 report filed by her, the trial court concluded that the plaintiff has made out his entitlement for the decree of injunction and, accordingly, granted such relief negativing the contentions of the defendant. Challenge raised against the decree of injunction granted in favour of the plaintiff by way of an appeal was turned down by the lower appellate court. Feeling aggrieved, the defendant has preferred this appeal. R.S.A.NO.1189/2010 3 4. I heard the learned counsel for the appellant. Perusing the memorandum of appeal with reference to the judgment rendered by the two courts below and also the submissions made by the learned counsel for the appellant, it is seen, a new challenge not even pleaded in the written statement of the defendant has been set up as a ground of attack to assail the concurrent decision rendered by the two courts below upholding the suit claim of the respondent/plaintiff. In the written statement, the defendant had contended that the description of the boundaries of the plaint schedule are wrong, that he has a right of easement by necessity over a pathway alleged to be running through the plaint property and the suit is bad for non-joinder of necessary parties for the reason that in the previous suit for partition, over the property situated to the south of the plaint property right in common had been reserved to the sharers. Those contentions having been repelled by both the courts below, the decree passed in favour of the respondent/plaintiff is now sought to be assailed challenging its identity and location with reference to the decree and plan prepared in the previous suit for partition. The title claimed by R.S.A.NO.1189/2010 4 the plaintiff over the plaint property by virtue of the allotment made in favour of his father as part of 'A' schedule in the previous suit for partition, wherein the predecessor of the defendant was a party, and later, by way of Ext.A1 settlement deed executed by his father, remain unimpeached. The advocate commissioner appointed in the case has identified the plaint property with reference to Ext.A1 settlement deed and also the previous decree and plan in the above suit for partition. The lower appellate court has taken note that though the defendant had claimed a way through the plaint property contending that he has a right of easement by necessity over such way even in the work memo filed by him in relation to the execution commission ordered the identification of such a pathway was not sought for nor any objection taken to the report of the commissioner which negatived the existence of such a way. The plaintiff described the southern boundary of the plaint property as belonging to one Surendran, but on the materials placed, it was shown that it belong to Surendran and some others including the defendant as a joint property. From that circumstance alone, as held by the lower appellate court, it R.S.A.NO.1189/2010 5 cannot be concluded that there was misdescription of the property especially where it has been identified correctly by the advocate commissioner deputed by the court. Needless to point out, the lower appellate court is the final authority on disputed questions of fact, and after appreciating the materials, it has confirmed the findings of the trial court that the plaint schedule property has been correctly identified by the commissioner in Ext.C2 plan, that plaintiff has got exclusive possession over such property and the defendant has not proved the right of easement by necessity over any way running there to, which in fact, was not brought out by any materials whatsoever. The challenges raised in the present appeal with reference to the plan prepared by the advocate commissioner and the order passed in the final decree proceedings in the previous suit for partition which have not been adverted to, leave alone, not pleaded specifically in the written statement filed to resist the suit claim, cannot be entertained by this Court in view of the interdiction placed under Section 100 of the Code of Civil Procedure, which mandates that a second appeal is entertainable before this Court only where it is satisfied that the case involves a substantial question of law. R.S.A.NO.1189/2010 6 Perusing the judgments rendered by the courts below, it is seen, both the courts have examined the materials on record and analysed the disputed questions of fact involved to conclude that the respondent/plaintiff is entitled to the decree of injunction as canvassed in his suit. Concurrent findings of fact arrived by the courts below where identity of the suit property had been clearly established and the claim of possession over that property on the strength of title proved by the plaintiff and the further challenge of the defendant as to the existence of a way through that property found disproved by the materials including the report of the advocate commissioner, I find that the challenges now raised to assail the decree of injunction granted to the plaintiff with reference to the plan and final decree in the previous suit for partition, is not entertainable. There is no question of law, leave alone any substantial question of law involved in the appeal, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp