Kerala High Court
Thomas Sleeba vs Jose Varghese on 16 January, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 18TH DAYOF JANUARY 2016/28TH POUSHA, 1937
RSA.No. 1114 of 2014(G)
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AGAINST THE JUDGMENT IN A.S.NO.49/2011 OF III ADDITIONAL SUB COURT,
ERNAKULAM
AGAINST THE JUDGMENT IN O.S.NO.1118/2008 OF PRINCIPAL MUNSIFF COURT, ,
ERNAKULAM
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APPELLANT(S)/APPELLANTS/DEFENDANTS 1 AND 2 :
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1. THOMAS SLEEBA, AGED 62 YEARS,
S/O. LATE THOMAS, "ENNIRIYIL", KANDANAD POST - 682 035,
MANAKUNNAM VILLAGE, KANAYANOOR TALUK, ERNAKULAM DISTRICT.
2. THOMAS GEORGE, AGED 64 YEARS,
S/O.LATE THOMAS, "ENNIRIYIL", KANDANAD POST - 682 035,
MANAKUNNAM VILLAGE, KANAYANOOR TALUK, ERNAKULAM DISTRICT.
BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR
SRI.GEEN T.MATHEW
RESPONDENT(S)/RESPONDENTS/PLAINTIFFS AND DEFENDANTS 3 AND 4 :
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1. JOSE VARGHESE, AGED 57 YEARS, S/O.LAGE V.S.VARGHESE,
PALLIPUNJAYIL HOUSE, KANDANAD POST - 682 035, MANAKUNNAM
VILLAGE, KANAYANOOR TALUK, ERNAKULAM DISTRICT.
2. CHINNAMMA, AGED 54 YEARS, W/O.JOSE VARGHESE,
PALLIPUNJAYIL HOUSE, KANDANAD POST - 682 035, MANAKUNNAM
VILLAGE, KANAYANOOR TALUK, ERNAKULAM DISTRICT.
3. THAMPI, AGED 57 YEARS, S/O.KURIAKOSE, ANJILIVELIL HOUSE,
KANDANAD POST - 682 035, MANAKUNNAM VILLAGE,
KANAYANOOR TALUK, ERNAKULAM DISTRICT.
4. M.I.BABY, AGED 68 YEARS,
S/O.ISSAC, MATTAMMEL HOUSE, KANDANAD POST - 682 035,
MANAKKUNNAM VILLAGE, KANAYANOOR TALUK, ERNAKULAM.
R1-R2 BY ADV. SRI.SHAJI THANKAPPAN
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 18-01-2016, ALONG WITH RSA.NO.1115 OF 2014, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
RSA.No. 1114 of 2014
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APPENDIX
PETITIONER(S)' ANNEXURES :
ANNEXURE A: TRUE COPY OF THE SALE DEED DATED 16.01.2010.
ANNEXURE A1: AFFIDAVIT OF OUR COUNSEL SRI.K.J.KURIACHAN
DATED 11.10.2014.
RESPONDENT(S)' ANNEXURES :
NIL
//TRUE COPY//
P.A.TO JUDGE.
Msd.
P.B.SURESH KUMAR, J.
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R.S.A.No.1114 & 1115 of 2014
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Dated this the 18th day of January, 2016
JUDGMENT
These appeals are preferred against the common judgment in A.S.Nos.48 and 49 of 2011 on the file of the Sub Court, Ernakulam. The said appeals were instituted challenging the decision in O.S.No.1118 of 2008 on the file of the Munsiff Court, Ernakulam. Defendants 1 and 2 in the suit are the appellants.
2. The suit was one for injunction. There are three items of properties in the suit. The plaint A schedule property belongs to the plaintiffs. The case of the plaintiffs is that the plaint B schedule property is their pathway to the plaint A schedule property from eastern public road. It is alleged by the plaintiffs that for the purpose of widening the R.S.A.No.1114 & 1115 of 2014 2 plaint B schedule pathway, they have purchased the plaint C schedule property from the father of defendants 1 and 2. According to the plaintiffs, defendants 1 and 2 are attempting to trespass into a portion of the plaint C schedule property and hence the suit for injunction restraining the defendants from trespassing into the plaint B and C schedule properties. The defendants resisted the suit. According to them, they have not trespassed into any portion of the plaint C schedule property assigned to the plaintiffs by their father. On the other hand, it was alleged by the defendants that the plaintiffs are attempting to grab a portion of the property owned by defendants 1 and 2 and situated on north of the plaint C schedule property. In the written statement, the defendants have also raised a counter claim seeking a decree of mandatory injunction directing the plaintiffs to remove the gate erected in the boundary of the plaint A schedule property alleging that the R.S.A.No.1114 & 1115 of 2014 3 gate of the plaintiffs protrudes into their property. At the instance of the plaintiffs, the trial court appointed an Advocate Commissioner, who in turn, with the aid of a Surveyor identified the suit properties and filed Ext.C2 report and Ext.C2(a) plan. The trial court accepted Ext.C2 report and C2(a) plan submitted by the Advocate Commissioner and decreed the suit and dismissed the counter claim. Defendants 1 and 2 challenged the decision of the trial court in the suit as also in the counter claim in the appeals referred to above. The appellate court, on a re- appraisal of the evidence on record, confirmed the decision of the trial court and hence these second appeals.
3. Heard the learned counsel for the appellants.
4. The grievance voiced by the appellants in these second appeals is as to the correctness of Ext.C2 report and C2(a) plan. According to the learned counsel for the appellants, the suit properties have been identified by the R.S.A.No.1114 & 1115 of 2014 4 Surveyor based on resurvey records. The learned counsel for the appellants pointed that the suit properties should have been identified with reference to the old survey records. As indicated above, the suit is one for injunction. The decision impugned rests on the finding rendered by the courts below that the plaintiffs are in possession of the plaint B and C schedule properties as identified by the Advocate Commissioner. The grievance, according to the appellants, is that a portion of the property owned by the defendants 1 and 2, which lies on the northern side of the property sold by their father to the plaintiffs as per Ext.A5 assignment deed is also now shown as part of the plaint C schedule pathway. Since the present suit being a simple suit for injunction, the findings rendered by the courts below can only be understood as findings on the issue of possession. In the said view of the matter, there is no merit in the second appeals and the same are, accordingly, dismissed. R.S.A.No.1114 & 1115 of 2014 5 However, it is made clear that the decision in the suit will not preclude defendants 1 and 2 from instituting a fresh suit based on title, if they have a case that a portion of the property situated on the north of the property conveyed by their father to the plaintiffs as per Ext.A5 assignment is shown in the present suit as part of the plaint C schedule property.
P.B.SURESH KUMAR, JUDGE.
smm