K.P. Varghese and Ulahannan v. Kunjamma and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944** **RSA NO. 596 OF 2018** **AGAINST THE JUDGMENT AND DECREE DT.15.09.2017 IN A.S.NO.59** **OF 2016 OF SUB COURT, PERUMBAVOOR OS 14/2012 OF MUNSIFF COURT, PERUMBAVOOR** ## **APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 2:** 1 K.P. VARGHESE AGED 54 YEARS S/O. POULOSE, AGED 54 YEARS, KANJIRATHUMKUDIYIL HOUSE, PANICHAYAM KARA, ASAMANNOOR VILLAGE, KUNNATHUNAD TALUK-683549. 2 ULAHANNAN AGED 68 YEARS S/O. POULOSE, AGED 68 YEARS, KANJIRATHUMKUDIYIL HOUSE, ASAMANNOOR KARA, ASAMANNOOR VILLAGE, KUNNATHUNAD TALUK-683549. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.SUNIL KUMAR A.G SRI.SETHURAM DHARMAPALAN ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 KUNJAMMA AGED 61 YEARS W/O. ULAHANNAN, AGED 61 YEARS, KANJIRATHUMKUDY HOUSE, ASAMANNOOR KARA, ASAMANNOOR VILLAGE, KUNNATHUNAD TALUK-683549. 2 ULAHANNAN AGED 65 YEARS S/O. GEEVARGHESE, AGED 65 YEARS, KANJIRATHUMKUDY HOUSE, ASAMANNOOR KARA, ASAMANNOOR VILLAGE, KUNNATHUNAD TALUK-683549. R.S.A.No.596/2018 2 3 P.A. MOHANAN AGED 59 YEARS S/O. AYYAPPAN, AGED 59 YEARS, PARAKKATTU VEETTIL, NEDUNGAPRA P.O., PANICHAYAM KARA, ASAMANNOOR VILLAGE-683549. 4 C.K. KRISHNAN S/O. KUNJAN, CHERUVALLIPPADY VEETTIL, NEDUNGAPRA P.O., PANICHAYAM KARA, ASAMANNOOR VILLAGE, KUNNATHUNADU TALUK-683549. 5 C.K. GOPALAKRISHNAN AGED 45 YEARS S/O. KUTTAPPAN, AGED 45 YEARS, CHEMMAYATH VEETTIL, NEDUNGAPRA P.O., PANICHAYAM KARA, ASAMANNOOR VILLAGE, KUNNATHUNADU TALUK-683549. 6 C.K. SUGATHAN AGED 55 YEARS S/O. KUTTAPPAN, AGED 55 YEARS, CHERUVALLIPPADY VEETTIL, NEDUNGAPRA P.O., PANICHAYAM KARA, ASAMANNOOR VILLAGE, KUNNATHUNADU TALUK-683549. 7 C.I. THAMBAN AGED 65 YEARS S/O. IKKORAN, AGED 65 YEARS, CHEMMAYATH VEETTIL, NEDUNGAPRA P.O., PANICHAYAM KARA, ASAMANNOOR VILLAGE, KUNNATHUNADU TALUK-683549. BY ADVS. SRI.DINESH R.SHENOY FOR R2 SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 07.11.2022, THE COURT ON 11.11.2022 DELIVERED THE FOLLOWING: R.S.A.No.596/2018 3 ## **M.R.ANITHA, J** ****************** R.S.A.No.596 of 2018 ---------------------------------------------Dated this the 11[th] day of November, 2022 ## **JUDGMENT** The above R.S.A has been directed against the judgment and decree in A.S.No.59 of 2016 on the file of Subordinate Judge's Court, Perumbavoor which in turn arise out of the judgment and decree in O.S.No.14/2012 on the file of Munsiff's Court, Perumbavoor. 2. Defendants 1 and 2 are the appellants. Suit was one for permanent prohibitory injunction. (Parties would hereinafter be referred as per their status before the trial court). Second plaintiff is the husband of first plaintiff. Plaint schedule property belongs to first plaintiff and she obtained the same as per Document No.1699/94 and 1589/99 of S.R.O Kuruppampady. The defendants property is situated on the western side of the R.S.A.No.596/2018 4 plaintiffs property. There is well defined boundaries on the eastern and northern boundaries of plaint schedule property. Defendants surrendered four cents of property from the south eastern corner of their property to Asamannoor Panchayat and a pond and a motor shed were constructed in that portion of the property by the Panchayat. But no electric connection is taken and no water is taken and used from the pond. There is a mud wall on the southern boundary of the plaint schedule property which separates the property from the canal bund on that side. Defendants requested the plaintiffs to surrender some property for constructing a road to the southern boundary which was not amenable for the plaintiff. Thereafter, the defendants made attempt to construct a way through plaint schedule property. Thereupon plaintiffs filed O.S.No.393/1998 for permanent prohibitory injunction. Suit was decreed and A.S.No.207/2004 filed by the defendants against the judgment and decree was also dismissed. Thereafter, when the defendants including the Panchayat member made attempt to construct a way through plaint schedule property, plaintiff filed E.P against the defendants R.S.A.No.596/2018 5 which was not allowed and thereafter W.P.(C) No.6389/2009 was filed against the order in E.P and while disposing that writ petition, this Court found that the plaintiffs have every right to construct a compound wall without seeking for fixation of boundary. When the defendants were making preparation to obstruct the construction of compound wall on the southern side of the plaint schedule property, the suit was filed. 3. Defendants filed written statement denying the title of the plaintiffs by virtue of patta No.11456/1985 as stated in 1581/1997. The southern boundary of the plaint schedule property is not CADA canal and canal bund road and it is a public way to the property of the Panchayat bund, Panachiyam Devi Temple and paddy field having a width of 7 ft at the starting and thereafter at a width of 2.5 to 3.5 ft. There is a bund on the southern side of that public way. It is not a part of the plaintiffs property. There was a well on the south eastern corner of the plaint schedule property and there was a channel from that well, later it was converted into CADA canal. Defendants also contended that 2[nd] plaintiff has no absolute right to transfer the R.S.A.No.596/2018 6 property to the first plaintiff. It is further contended that the property taken for construction of periyar valley canal is shown as part of periyar valley property. There is no laterite stone wall separating the plaint schedule property from CADA channel. It is a part of the way. There is no necessity to create a new way and hence E.P 98/2008 filed by the plaintiff was dismissed. If the plaintiff is allowed to construct a boundary wall, that will obstruct the public way. So, the plaintiffs are not entitled to construct a compound wall as per the plan appended to the decree in O.S.No.393/1998. 4. PW1 examined and Exts.A1 to A10 marked from the side of the plaintiffs. DW1 examined and Exts.B1 to B10 marked from the side of the defendants. 5. After evaluating the rival contentions and facts and circumstances and evidence adduced, learned Munsiff decreed the suit, against which A.S No.59/2016 was filed. By the impugned judgment, the first appellate court dismissed the appeal confirming the judgment and decree passed by the trial court. Against which appellants approaches this Court in this R.S.A.No.596/2018 7 R.S.A. 6. Notice was issued to the respondents. Lower court records were called for. Both sides were heard. 7. Present suit is for restraining the defendants from causing any obstruction in constructing compound wall or kayyala on the boundaries on all sides of the plaint schedule property as per the decree in O.S.No.393/98. As per that decree, a permanent prohibitory injunction has been passed against the defendants from cutting open a new way through the plaint schedule property and from causing any damage to the improvements in the schedule property. Ext.A7 is the certified copy of the decree in O.S.No.393/1998. Ext.A8 is the certified copy of the decree in A.S.No.207/2004 by which Ext.A7 decree and judgment was confirmed. When there was an attempt on the part of the defendants in violating the order of injunction, plaintiffs filed E.P for prosecution and certified copy of the order in E.P has been produced and marked as Ext.B2 from the side of the defendants, as per which the learned Munsiff was not inclined to prosecute the defendants herein in the absence of any R.S.A.No.596/2018 8 evidence to prove the violation of the decree. It is also discernible that prayer was made by the plaintiffs herein for permitting to construct southern boundary wall in their property comprised in Re-survey Nos.306/6 and 309/6 and the learned Munsiff dismissed the E.P finding that the decree has been passed only for a permanent prohibitory injunction and for constructing the compound wall, the plaintiffs ought to obtain a decree for fixation of boundary. 8. Against that order plaintiff approached this Court in W.P.(C) No.6389/2009. Before this Court, learned counsel for the plaintiffs contended that since boundary is already fixed, no separate suit is necessary and in view of the perpetual injunction already granted by the court, plaintiffs are entitled to reconstruct and repair the boundary wall. As per the judgment dated 14.09.2009, a learned Single Judge of this Court disposed of the writ petition finding that the observation of the Munsiff's Court that for constructing boundary wall decree holders/plaintiffs have to obtain a decree for fixation of boundary is not warranted. R.S.A.No.596/2018 9 9. The present suit has been filed apprehending obstruction from the side of the defendants in constructing the compound wall on all boundaries of the plaint schedule property. But, at the time of argument, learned counsel for the plaintiffs conceded that the dispute is with regard to southern boundary and they intend to construct a compound wall as per the boundary in the plan attached to Ext.A7 decree. Trial court as well as the first appellate court concurrently found in favour of the plaintiffs and perpetual injunction was granted restraining the defendants from obstructing the plaintiffs in carrying out construction of the boundary wall or fencing through the boundaries. 10. The only contention advanced by the learned counsel for the defendants is that the southern boundary description of the plaint schedule property in the plaint as well as in the decree in A.S.No.393/1998 are not tallying and hence the relief sought for by the plaintiffs cannot be granted and hence the concurrent findings of the courts below in that regard is unsustainable. Southern boundary of the plaint schedule property in this suit has R.S.A.No.596/2018 10 been described as PVAP Canal road and CADA thodu. But the description of the plaint schedule property in the present case as well as in Ext.A7 decree is one and the same and the total extent of property though shown as 37 Ares 74 sq.metres it was corrected subsequently as 31.74 Ares. That fact is not in dispute and on a calculation of total extent of property described in the plaint schedule in the present case as well as in Ext.A7 also it could be seen that the total extent as per the description is only 31.74. So, as per Ext.A7, southern boundary of the decree schedule property in O.S.No.393/1998 has been clearly demarcated and that finding has become final and as per Ext.A9 judgment of this Court, the right of the plaintiffs to construct a boundary wall on the boundary fixed is also found in favour of the plaintiffs. So, the defendants are estopped by judgment in O.S.No.393/1998 and W.P.(C) No.6389/2009 from contending against the right of the plaintiffs in constructing boundary wall as per the sketch appended to Ext.A7 decree (See **Sailendra Narayan Bhanja Deo v. State of Orissa : AIR 1956 SC 346 : MANU/SC/0081/1956** , **Krishnaru Nampoothiri v.** R.S.A.No.596/2018 11 ## **Velayudhan and Others : 1971 KLT 307 : AIR 1971 Ker** ## **234** ). 11. It is true that, in the present plaint schedule, the southern boundary is described as PVAP Canal road and CADA thodu. The contention of the learned counsel for the defendants is that there is a way through the southern boundary of the plaint schedule property used by the general public for going towards west and the description of PVAP Canal road and CADA thodu on the southern boundary of the plaint schedule property probabilise that version. But, on going through the sketch attached to Ext.A7 decree it is very clear that no way, as alleged, has been demarcated in the sketch on the southern boundary of the plaint schedule property. On the other hand, just on the north of CADA thodu, 30 cm width laterite stone compound wall has been noted in the sketch attached to Ext.A7. Learned counsel for the defendants in this context would take my attention to Ext.B1 which is the certified copy of the Commissioner's report in O.S.No.393/1998. In point No.2, the Commissioner was asked to report about the signs of pathway and the Commissioner R.S.A.No.596/2018 12 categorically reported that, on the northern side of CADA thodu, there is laterite stones arrangement and above that there is signs of passage. So also in point No.3, the Commissioner was asked to report about the height difference between the CADA thodu and passage. Even Ext.B1 report only says about the signs of passage above the granite stones. Moreover, the sketch attached to the decree does not reveal the existence of any pathway and the specific contention of the defendants in the earlier suit in O.S.No.393/1998 reveals their contention of way on the southern boundary of the plaint schedule property which was found concurrently against the defendants in the earlier suit and appeal filed against it also ended in dismissal and that has become final. 12. So, as far as the difference in the description of the southern boundary of the plaint schedule property in the present case and in Ext.A7 is concerned as has been rightly contended by the learned counsel for the plaintiffs, the plaint schedule property further extends towards west and there it abuts PVAP canal also and the dispute in the present case seems to be towards the south western side where it abuts the CADA thodu and R.S.A.No.596/2018 13 defendants property on the western side. 13. As contended by the learned counsel for the plaintiffs, the attempt of the defendants is to create a pathway through the southern side of the plaint schedule property to make an entry to PVAP canal road. Since in the previous suit itself, there is a clear finding against the defendants restraining them from cutting open a new way through the plaint schedule property, the said contention of the defendants is not at all sustainable in law as has been rightly found by the courts below. 14. Learned counsel for the plaintiffs would also contend that no specific question was put to PW1 and no argument was also advanced before the courts below with regard to the difference in the description of southern boundary of the plaint schedule property and only at the second appeal stage, such a contention has been put forward. Though a contention has been raised generally in the written statement that the description of the plaint schedule property on the southern side is not correct, no specific contention regarding the difference in description, with regard to southern boundary in Ext.A7 decree and the R.S.A.No.596/2018 14 present plaint schedule southern boundary is seen raised either before the trial court or before the first appellate court. Hence no specific finding also entered into by the courts below in that regard. So, such a contention cannot be raised for the first time in second appeal. 15. So, on a close scrutiny of the judgment and decree passed by the courts below, I am also of the considered view that the courts below have evaluated the facts and circumstances and evidence adduced in a correct perspective and no substantial question of law emerges for consideration for entertaining this second appeal. In the result, appeal is found to be devoid of any merit and hence dismissed. No cost. (sd/-) **M.R.ANITHA, JUDGE** jar (True Copy) P.S to Judge