IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 RSA.No. 1198 of 2011() ---------------------- AS.58/2010 of SUB COURT, PERUMBAVOOR OS.357/2007 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS/ APPELLANTS/DEFENDANTS 1, 2 AND 6 : -------------------- 1. BHAVANI AMMA, AGED 71 YEARS, D/O. MADHAVI AMMA, NADUKKARA HOUSE, THOTTUVA KARA, KODANADU VILLAGE, ERNAKULAM DISTRICT. 2. SIVASANKARAN, AGED 44 YEARS, S/O. BHAVANI AMMA, NADUKKARA HOUSE, THOTTUVA KARA, KODANADU VILLAGE, ERNAKULAM DISTRICT. 3. HEMA, AGED 37 YEARS, W/O. SIVASANKARAN NADUKARA HOUSE, THOTTUVA KARA, KODANADU VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.E.N.VISHNU NAMBOODIRI SRI.S.P.SURESH KUMAR RESPONDENTS/ RESPONDENTS/PLAINTIFFS 1 AND 2 AND DEFENDANTS 3, 4 AND 5: --------------- 1. RUGMINI AMMA, AGED 61 YEARS, D/O. MADHAVI AMMA, NADUKKARA HOUSE, THOTTUVA KARA, KODANADU VILLAGE, ERNAKULAM DISTRICT. PIN 683 544. 2. SOMAN, AGED 41 YEARS, S/O. RUGMINI AMMA NADUKKARA HOUSE, THOTTUVA KARA, KODANADU VILLAGE, ERNAKULAM DIST. PIN 683 544. 3. NALINAKSHI AMMA @ THANKAMMA, AGED 66 YEARS D/O. MADHAVI AMMA, NADUKKARA HOUSE, THOTTUVA KARA, KODANADU VILLAGE, ERNAKULAM DISTRICT. PIN 683 544. 4. BHASKARAN NAIR, AGED 69 YEARS NADUKKARA HOUSE, THOTTUVA KARA KODANADU VILLAGE, ERNAKULAM DIST. PIN 683 544. 5. JAYACHANDRAN, AGED 36 YEARS, S/O. THANKAMMA NADUKKARA HOUSE, THOTTUVA KARA, KODANADU VILLAGE, ERNAKULAM DIST. PIN 683 544. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1198 of 2011 ............................................ DATED THIS THE 27th DAY OF OCTOBER, 2011 JUDGMENT Defendants 1, 2 and 6 in O.S.357 of 2007 on the file of Munsiff Court, Perumbavoor are the appellants. Respondents 1 and 2 are the plaintiffs. Suit was filed for a permanent prohibitory injunction restraining the appellants from causing obstruction to the construction of a compound wall on the granite foundation separating plaint C schedule property from plaint A schedule property. Plaint A, B and C schedule properties are admittedly part of a common property having an extent of 1.19 acres. It was admittedly divided in such a way that the southern plaint A schedule property was alloted to the first respondent and its immediate northern plot, item No.1 of the plaint B schedule property, was alloted to the first appellant/first defendant and the northern most plot was alloted to third defendant, third respondent. Plaint C schedule is the way provided on the eastern side of plaint A and B schedule properties. Second respondent is the son of first respondent. First respondent, third respondent RSA 1198/2011 2 and first appellant are sisters. The case of respondents 1 and 2 is that while dividing the properties, plaint C schedule way was provided having a width of two metres and a length of 30 metres and it lies to the east of the plaint A and B schedule properties and defendants have no right to annex any portion of plaint A schedule property to widen the way. It is contended that there is a granite foundation which lies on the eastern boundary of plaint A schedule property, which separates plaint C schedule way. Defendants resisted the suit admitting the right of first respondent over plaint A schedule property and that of first appellant and third respondent over plaint B schedule properties. It was contended that the property was divided in such a way that on the eastern side, a way is provided having a width of ten feet and not two metres as claimed by respondents 1 and 2. It was contended that purchase certificates were obtained separately by first respondent, third respondent and first appellant for the respective plots and while dividing the property, first respondent was alloted two cents more in extent, a portion is to be provided for the way. The granite foundation was put up by the first appellant encroaching a portion of plaint C schedule way RSA 1198/2011 3 and respondents 1 and 2 are not entitled to put up a compound wall on the said granite foundation and thereby reduce the width of the way. 2. Learned Munsiff on the evidence of PW1, Exts.A1, A2, C1, C2(a), C2(b) and DW1, granted a decree for injunction restraining the defendants from causing obstruction to the construction of compound wall, holding that the width of plaint C schedule way available to them is only two metres and not ten feet as claimed by them. Aggrieved by the decree, appellants challenged the same before Sub Court, Perumbavoor in A.S.58 of 2010. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. The argument of the learned counsel is that courts below erred in relying on Ext.C2 report and C2(a) and (b) plans submitted by a Retired Survey Superintendent. The argument is that it is only a copy of the plan prepared by a Retired Survey Officer and it should not have been admitted in evidence. Learned counsel argued that respondents 1 and 2 admitted that on the south of RSA 1198/2011 4 plaint A schedule property, there was originally a thodu which was later widened into a way and for that purpose a portion of the property from plaint A schedule property was taken and no evidence was adduced to establish the actual extent so lost from plaint A schedule property and at the starting point of the way from the southern way, which runs towards north, plaint C schedule way was having a width of ten feet and the fact that the width of the way was reduced by constructing a granite wall, encroaching upon a portion of the way, will not enable respondents 1 and 2 to get a decree for injunction as granted and the decree is therefore unsustainable. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The suit is only one for injunction restraining defendants from causing obstruction to the construction of a compound wall on the eastern boundary of plaint A schedule property, contending that the granite foundation on the eastern boundary separates the eastern way which was provided at the time of partition. Though appellants contended that the way originally provided at the time of partition was having a width of ten feet and not two metres, as RSA 1198/2011 5 claimed by respondents 1 and 2, admittedly there was no document executed at the time of division showing the width of the way. When respondents 1 and 2 would contend that the way available is only having a width of two metres, defendants contended that the way was having a width of ten feet. Courts below based on the evidence on record found that the granite foundation, which lies on the eastern boundary of plaint A schedule property, separates plaint A schedule property from the eastern way. Though it was contended by appellants that it was recently constructed, courts below based on the evidence found that it was constructed more than ten years prior to the institution of the suit. Based on this evidence, it was found that respondents 1 and 2 have the right and possession of plaint A schedule property, which lies to the west of the eastern granite wall. A decree for injunction was granted based on that factual finding. I find no reason to interfere with that finding. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk