Kerala High Court
Venugopalan vs Subramanian
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939
SA.No. 263 of 2000 (F)
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AGAINST THE JUDGMENT AND DECREE DATED 17-01-2000 IN AS 223/1991 of DISTRICT
COURT, PALAKKAD
AGAINST THE JUDGMENT AND DECREE DATED 27-03-1991 IN OS 51/1979 of PRINCIPAL
MUNSIFF'S COURT, PALAKKAD
APPELLANTS/APPELLANTS/PLAINTIFFS:
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1. VENUGOPALAN, S/O.LATE THEYYALAN,
AGED 37, RESIDING AT KUNNATHUPURA,
EDATHARAAMSOM, PALAKKAD TALUK
2. MOHANAN, S/O.LATE THEYYALAN,
AGED 37 YEARS, -- DO -- -- DO --
3. GRESSTA, S/O.LATE THEYYALAN,
AGED 35 YEARS, - DO - - DO -
4. BHAKTHAVALSALAN, S/O.LATE THEYYALAN,
AGED 22 YEARS, - DO - - DO -
5. SOBHANAKUMARI, D/O.LATE THEYYALAN,
AGED 20 YEARS, - DO - - DO -
6. LAKSHMIKUTTY AMMA, W/O.LATE THEYYALAN,
AGED 60 YEARS, - DO - - DO -
BY ADVS.SRI.P.SANTHALINGAM (SR.)
SMT.M.MEENA JOHN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
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1. SUBRAMANIAN, S/O.KODDAKKEN ALIAS VELU (DIED)
AGED 40 YEARS, RESIDING AT KALATHIL,
EDATHARAAMSOM, PALAKKAD TALUK
2. JANARDHANAN, S/O.KODDAKKEN ALIAS VELU (DIED)
AGED 35 YEARS, - DO - - DO -
SA.No. 263 of 2000 (F)
2
3.PRABHALOCHANA, D/O.LATE THEYYALAN, AGED 25
RESIDING AT KUNNATHUPARA, EDATHARAAMSOM,
PALAKKAD TALUK
4. JOSANA, D/O.LATE THEYYALAN, AGED 22 YEARS
- DO - -- DO --
R3 & R4 BY ADV. SRI.ANTONY KUREETHARA
THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10-10-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B. KEMAL PASHA, J.
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S.A. No.263 of 2000 F
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Dated this the 10th day of October, 2017
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~ Heard learned counsel for the appellants on the question of admission.
2. Challenging the concurrent findings entered by the Munsiff's Court, Palakkad, in OS No.51/1979 followed by those of the II Additional District Court, Palakkad in AS No.223/1991, the plaintiffs have come up in appeal. The suit is one for mandatory injunction as well as prohibitory injunction. The claim of the plaintiffs is that the plaintiffs are entitled to have the plaint C schedule pathway having a width of 12 feet as an easement by grant. The properties were the subject matter of a partition deed. According to the plaintiffs, the defendants reduced the width of the pathway from 12 feet to 7 feet. It is for restoring the width that the decree of mandatory injunction has been sought for. A SA.263/2000 : 2 : decree of perpetual injunction has been sought for from obstructing the user of the 12 feet width of the pathway by the plaintiffs.
3. The defendants contended that the plaintiffs were the persons, who reduced the width of the pathway, and the plaintiffs are holding excess land together with their properties. In short, it is contended that the portions of the pathway have been appropriated by the plaintiffs and thereafter, they are claiming the portions of the properties of the defendants for enhancing the width of the pathway.
4. On hearing the learned counsel for the appellant and on perusing the impugned judgments, it has clearly come out that the plaintiffs have failed to prove that the pathway had originally a width of 12 feet as claimed. The grant made in Ext.A4 does not reveal the width of the pathway. Presently, the width of the pathway as admitted by the plaintiffs is only 7 feet. When the plaintiffs have failed to prove the width of the plaint C schedule pathway as 12 feet, SA.263/2000 : 3 : the plaintiffs are not entitled to get a decree as prayed for. Both the courts below have considered the evidence and appreciated it in its correct perspective, and arrived at the correct conclusion. There is absolutely nothing to interfere with the concurrent findings entered by both the courts below in the matter. Any substantial question of law does not emerge from the impugned judgment. Matters being so, this Second Appeal is devoid of merits and is only to be dismissed, and I do so.
In the result, this Second Appeal is dismissed. All pending interlocutory applications in this appeal are closed.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/10/10 // True Copy // PS to Judge