IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 RSA.No. 465 of 2006() --------------------- AS.204/2005 of I ADDL.DISTRICT COURT, ERNAKULAM OS.1640/2001 of I ADDL.MUNSIFF COURT, ERNAKULAM .................... APPELLANTS/APPELLANTS/DEFENDANTS. ------------------------------------------------------------ 1. ABDUL RAHIMAN, S/O.LATE MOOSA, AGED 45 YEARS, KAVANAD HOUSE, PADAMUGAL, KAKKANAD P.O. KOCHI 30. 2. ABDUL KHADER, AGED 36 YEARS, KAVANAD, PADAMUGAL, KAKKANAD P.O. KOCHI 30. 3. PAREED, AGED 51 YEARS, KAVANAD, PADAMUGAL, KAKKANAD P.O. KOCHI 30. BY ADV. SRI.K.RAVEENDRAN SRI.M.A.HAKKIM SHAH RESPONDENT(S): PLAINTIFF. ---------------------------------------- PARVATHY PRABHAKARAN, W/O.PRABHAKARAN, W/O.PRABHAKARAN, AGED 79 YEARS, PANAKKAPPARAMBIL HOUSE, OLD RAILWAY STATION ROAD, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, KOCHI 30. ADV. SRI.K.C.CHARLES THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RSA.No. 465 of 2006() 2 ORDER IN I.A NO.1160/2006 DISMISSED. 05/01/2011 Sd/- S.S.SATHEESACHANDRAN JUDGE S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.465 OF 2006 ------------------------------- Dated this the 5th day of January 2011 JUDGMENT The defendants in a suit for declaration of title and injunction have filed this appeal challenging the concurrent decision rendered in favour of the respondent/plaintiff by the two courts below. Describing four schedules as 'A' to 'D' in the plaint, the respondent/plaintiff sought for several reliefs separately in respect of those schedules. Admittedly, 'A' schedule property comprised of 'C' and 'D' schedule properties. 'B' schedule property is situate to the south of 'A' schedule property. Practically there was no dispute between the parties with respect to the title and possession of the plaintiff over 'A' and 'B' schedule properties. Controversy which arose for adjudication before the court below related to the claim of title and possession of the plaintiff over 'C' and 'D' schedule properties, which in fact was a narrow strip of land having an extent of 1.566 cents situate to the west of 'A' schedule property as a connecting link to a pathway proceeding towards west and joining a main road lying in south north direction. Plaintiff claimed title over the above said 1.566 cents of land, which formed both 'C' and 'D' schedule, on the basis of sale deed obtained by her over such property. However, she limited her claim of possession and also fixation of boundaries R.S.A No.465 OF 2006 - 2 - only in respect of a portion of the property separately scheduling it as 'C' schedule. With respect to the rest of the portion separately described as 'D' schedule, admitting that it is necessary for the convenient use of the defendants for making use of the pathway to reach the road including plying of vehicles from their residential compound, the plaintiff limited the relief as one for declaring her title over such property. In respect of 'C' schedule, plaintiff sought for fixation of its northern and western boundaries and also an injunction restraining the defendants from causing any obstruction to them in putting up boundary walls after fixing of the boundaries, and also in any manner interfering with her use and enjoyment over 'D' schedule property as a pathway from 'A' and 'C' schedule properties, to reach the main road situate further west. Suit claims were resisted by the defendants contending that there was no need to fix the boundaries as it had already been fixed by the survey officials after carrying out survey and measurement over the properties of both parties. The suit had been filed beyond the time fixed to challenge the decision rendered by the survey authorities after carrying out measurement was one among the contentions raised by the defendants to resist the claims canvassed by the plaintiff. The defendants also claimed that they have right of easement by R.S.A No.465 OF 2006 - 3 - grant for enjoyment of light and air from the entire 'C' and 'D' schedule properties and the plaintiff has no right to obstruct the same by putting up boundary walls. Competency of the assignor from whom the plaintiff obtained the title deed over the 'C' and 'D' schedule to dispose such properties, and also his title thereto were disputed by the defendants. On the materials placed by both sides, which consisted of PW1 and Exts.A1 to A13 for the plaintiff and DW1 for the defendants and also Exts.C1 and C2 series reports and plan prepared by an advocate commissioner deputed by the court, negativing the contentions raised by the defendants, the trial court granted a decree in favour of the plaintiff as applied for. Challenge raised against that decree by way of an appeal by the defendants was turned down by the lower appellate court after reappreciating the materials tendered in the case, dismissing their appeal. As against the concurrent decision so rendered, the defendants have preferred this appeal. 2. I heard the counsel on both sides. At the time of hearing, the learned counsel for the appellants/defendants submitted that the only grievance of the appellants is that if at all any construction of the walls on the western and northern boundaries of 'C' schedule is proceeded with, on the basis of the decree granted in the suit, it should comply with the Building Rules R.S.A No.465 OF 2006 - 4 - applicable and such construction should not hamper or obstruct the enjoyment of light and air to the residential building of the defendants situate to the north of that property as enjoyed now. The learned counsel for the respondent/plaintiff fairly submitted that the basement of the construction of the boundary walls shall be confined to the 'C' schedule and the walls to be put up on its northern and western shall not exceed height of five feet from the ground level. Submission so made is accepted as sufficient to allay the apprehension canvassed by the counsel for the appellants. The decree granted shall be operative subject to the concession made by the respondent/plaintiff as indicated above. Submissions made by the counsel on both sides as above are recorded, and the appeal is disposed confirming the decree rendered by the courts below with the modification that the boundary walls on the northern and western sides of 'C' schedule shall be put up only as submitted and recorded. Both sides are directed to suffer their costs.. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// vdv P.A to Judge