IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 RSA.No. 766 of 2011() --------------------- AS.27/2008 of ADDL.DISTRICT COURT,KOTTAYAM OS.460/2004 of ADDL.MUNSIFF COURT, KOTTAYAM .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 & 2 ---------------------------------------------------------- 1. BHASKARAN NAIR, AGED ABOUT 79 YEARS, SREENILAYAM HOUSE, VELLOOR KARA, PAMPADY VILLAGE, KOTTAYAM TALUK. 2. SARASWATHI PILLAI, AGED ABOUT 71 YEARS, W/O.BHASKARAN NAIR, SREENILAYAM HOUSE, VELLOOR KARA, PAMPADY VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.ALEX.M.SCARIA RESPONDENT(S): RESPONDENTS/PLAINTIFF & 3RD DEFENDANT ---------------------------------------------------- 1. MR.V.RADHAKRISHNA KURUP, AGED 57 YEARS, S/O.VAMANAN NAMPOOTHIRI, GRAMATTATHILLAM, VELLOOR KARA, PAMPADY VILLAGE, KOTTAYAM TALUK, REP.BY HIS POWER OF ATTORNEY HOLDER AND HIS WIFE T.DHANALAKSHMI,AGED 41 YEARS,R/AT GRAMATTATHILLAM, VELLOOR.P.O.,PAMPADY VILLAGE,KOTTAYAM TALUK-686501 2. MS.SREEKUMARI, AGED 44 YEARS, D/O.SREENILAYAM HOUSE, VELLOOR.P.O., PAMPADY VILLAGE, KOTTAYAM TALUK. 686 501. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.766 of 2011 ............................................ DATED THIS THE 16th DAY OF AUGUST, 2011 JUDGMENT Defendants 1 and 2 in O.S.460 of 2004 on the file of Additional Munsiff Court, Kottayam are the appellants. First respondent is the plaintiff and second respondent, the third defendant in the suit. First respondent instituted the suit seeking a decree for permanent prohibitory injunction in respect of item No.3 of the plaint schedule property contending that a right of way is provided under Ext.A2 partition deed of 1983 and appellants and third respondent are not entitled to cause any obstruction to the use of way. Appellants in their written statement disputed the way and raised a counter claim for recovery of possession of item No.3 of the plaint schedule property. Appellants also sought a mandatory decree directing respondents to remove the wired fence constructed on the south of item No.3 of the plaint schedule property and the gate on the east of item No.3 or in the alternative to permit them to remove the wire fence. RSA 766/2011 2 2. Learned Munsiff on the evidence found that under Ext.A2 partition deed, a way having an extent of five cents is provided for and first respondent is entitled to use that way and appellants are not entitled to cause any obstruction. A decree for permanent prohibitory injunction directing the appellants not to cause any obstruction to the peaceful enjoyment and use of item No.3 of the plaint schedule way was granted in favour of first respondent. Learned Munsiff also found that though the extent of the pathway provided under Ext.A2 is only five cents, by constructing a wired fence, the first respondent has claimed more extent and he is not entitled to a decree for injunction in respect of the additional extent. Hence a decree for mandatory injunction was granted in favour of the appellants in the counter claim, directing the first respondent to remove the wired fence. The decree for recovery of possession raised by the appellant was dismissed. Appellant challenged the decree and judgment before Additional District Court, Kottayam in A.S.27 of 2008. Before the first appellate court, appellant filed I.A.1447 of 2010 to appoint a Commission to identify item No.3 of the plaint schedule property as provided under Ext.A1 with the help of Assistant Surveyor. The petition RSA 766/2011 3 was dismissed. Learned Additional District Judge, on re- appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. The argument of the learned counsel is that when under Ext.A1, the way provided is only having an extent of five cents and the finding of the first appellate court shows that first respondent has widened the pathway to an extent of seven cents and the additional extent belongs to the appellants, a decree for recovery of possession of the additional extent should have been granted. Learned counsel would argue that learned Munsiff was not justified in dismissing the counter claim for recovery of possession of the additional extent, on the ground that there was no identification of the additional extent by a Surveyor. The learned counsel also argued that in any case, when an application was filed before the first appellate court, learned District Judge should have allowed that application and was not justified in dismissing the application on the ground that the provisions of Order XLI of Rule 27 of the Code of Civil Procedure has to be RSA 766/2011 4 complied with. The argument of the learned counsel is that compliance of Order XLI Rule 27 of the Code would come only on submission of a report by the Commissioner and not at the time when application for appointment of Commission is considered by the first appellate court. The argument is that when first appellate court being the final fact finding authority has all the powers of the trial court, the application for appointment of Commission should have been considered as if it was being considered by the trial court and in such circumstances, the decree granted by the trial court as confirmed by first appellate court is not sustainable. The learned counsel would argue that the decree granted by trial court is unexecutable as item No.3 of the plaint schedule property was not identified. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The dispute is essentially of item No.3 of the plaint schedule property, which is the pathway provided under Ext.A2. Appellants sought recovery of possession of item No.3, denying the claim of first respondent that he has a right of way as provided under Ext.A1. Learned Munsiff upheld the case of appellants that pathway provided RSA 766/2011 5 under Ext.A1 is not having an extent of five cents and first respondent has put up a wired fence annexing a portion of item No.2 of the plaint schedule property as part of item No.3 of the plaint schedule property. It is on such finding the learned Munsiff granted a mandatory injunction in favour of appellants directing the first respondent to remove the wired fence, so as to restore item No.3 of the plaint schedule property to its original position. The argument of the learned counsel is that when that was the finding, learned Munsiff should have appointed a Commission. I cannot agree. When the appellants have denied the right of the first respondent to use item No.3 of the plaint schedule way, as provided under Ext.A2 and there cannot be any dispute with regard to item No.3 being the way provided under Ext.A2 partition deed, there was no necessity to identify the way as claimed by the learned counsel. If the claim for recovery of possession made by the appellants is to be upheld, it is upto them to take out a Commission and identify the additional extent of property which according to appellants have been trespassed upon by the first respondent. Moreover, as rightly found by the first appellate court, when the allegation as against the first RSA 766/2011 6 respondent is that he has encroached upon a portion of item No.2 and annexed it to item No.3 of the plaint schedule property by putting up a wired fence enclosing that portion of item No.2 of the plaint schedule property and by a mandatory injunction learned Munsiff has already directed the first respondent to remove that wired fence and thereby restored item No.2 of the plaint schedule property to its original position, there is no necessity to grant a decree for recovery of possession as sought for. The allegation as against first respondent is not that he trespassed upon portion of item No.2 of the plaint schedule property and reduced to his possession. The only allegation is that it is being used as part of item No.3 of the property by putting up a wired fence. When mandatory injunction is granted to remove the wired fence, I do not find any reason to grant a recovery of possession as sought for. In such circumstances, no substantial question of law is involved. Appeal is dismissed. The learned counsel then submitted that dismissal of the appeal may not be a bar to the appellants in getting the boundary of item No.2 of the plaint schedule property fixed. It is made clear that dismissal of the appeal will not be a bar to the appellants in RSA 766/2011 7 getting the boundary of item No.2 fixed in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE lgk