IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 RSA.No. 347 of 2010() --------------------- AS.54/2006 of SUB COURT,THODUPUZHA OS.190/2003 of MUNSIFF'S COURT,THODUPUZHA .................... APPELLANT/PLAINTIFF --------------------------------------- THOMAS, S/O.JOHN, VADAKKEKARA HOUSE, KODUVELY KARA, KODIKULAM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): --------------- THOMAS @ JOY, S/O.PAILY,NIRAPPEL HOUSE, KODUVELY KARA, KODIKULAM VILLAGE, KODUVELY P.O., THODUPUZHA TALUK. ADV. SRI.RAJU JOSEPH SRI.K.J.JOSEPH KAKKANATT THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.347 OF 2010 -------------------------------- Dated this the 8th day of September 2010 JUDGMENT Plaintiff is the appellant. Suit was one for declaration of title, recovery of possession and injunction, both prohibitory and mandatory. Both the courts below have declined the reliefs canvassed by the plaintiff. At the time of hearing of the appeal, the learned counsel appearing for the appellant/plaintiff submitted that the main dispute agitated upon by the parties related to a small strip of land having an extent of 250 sq. links which was claimed by the plaintiff as part of his property but trespassed upon by the defendant. Since such area being negligible, the learned counsel submits that further probe as to whether the plaintiff can seek recovery of that property with reference to the materials tendered in the case does not have much merit. However, it is submitted, the plaintiff has a genuine apprehension that there would be further trespass into his property taking advantage of the adverse decision rendered in his suit. In the context, it is submitted that though the title deeds of plaintiffs demonstrated that he has title over an extent of 3 acres 36 ½ cents, on determination of the property by survey measurements with reference to the deeds what is presently R.S.A No.347 OF 2010 - 2 - available is only 3 acres 20.213 cents. The common boundary which the plaintiff has with the defendant has been fixed by the advocate commissioner and shown in the plan as RQ. The learned counsel submitted that both the courts below which have been called upon to examine the recovery of possession claimed on the basis of title inadvertently overlooked the claim for injunction on the basis of the apprehension raised by the plaintiff that there is a threat of trespass over the property now under his possession and enjoyment. Whether the plaintiff was entitled to the decree of injunction in respect of the property as available at present, which has been identified by the commissioner under Ext.C2 was necessarily a matter which should have been gone into by the courts irrespective of the rejection of recovery claimed over the trespassed area. But, it was not done is the grievance espoused by the learned counsel for the appellant to contend that the plaintiff, in the interest of justice, has to be granted a decree of injunction over the property identified in his favour under Ext.C2 plan, to safeguard and protect that property. Since his suit in its entirety has been dismissed, it is submitted by the learned counsel even in the event of a subsequent trespass, whatever be the merit of the cause of action, the plaintiff would be seriously prejudiced in getting appropriate relief from the competent court. R.S.A No.347 OF 2010 - 3 - Per contra, the learned counsel for the respondent pointed out that both the courts have found that not even an inch of land of the plaintiff had been trespassed upon by the defendant and that being so, apprehension canvassed that there is a likelihood of trespass in view of the dismissal of the suit is bereft of any merit. 2. The property of the defendant has been identified in Ext.C2 plan as MNPRS as having an extent of 6.10 are. Property of the plaintiff is identified under the plan as P3 A B C D E F G L K O R R1 R2 R3 P1 P2 plot. The common boundary between the properties of the parties has also been fixed as RQ in C2 plan. When such identification has been done and it has been accepted by the court, over which there is dispute is subsisting between the parties, in the event of any trespass, over the property identified as belong to the plaintiff, nothing prevents him from approaching the court and seeking appropriate reliefs. To allay the apprehension raised by the plaintiff, it need only be recorded that the parties have no dispute over the identification of the properties as determined by the commissioner in Ext.C2 plan and that RQ is the common boundary of their properties. Though I find that there is some force in the argument raised by the appellant's counsel that the decree of injunction canvassed in the suit was not examined by the court below in the proper R.S.A No.347 OF 2010 - 4 - perspective. No further enquiry thereof is called for in view of the recording of the common boundary of the parties under C2 plan, as it would safeguard the interest of the plaintiff over the property identified as belonging to him. A meticulous consideration of the materials tendered in the case with reference to the pleadings to examine the question whether the plaintiff is entitled to a decree of injunction is not warranted in the second appeal. Subject to the above observations made, confirming the decree and judgment of the court below, the appeal is disposed of directing both sides to suffer their costs. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv