IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 690 of 2003(F)
1. P. STANLY JOHN, AGED 49,
... Petitioner
Vs
1. MAXIE JOHN, AGED 42, S/O. LATE
... Respondent
2. P. CLEETUS JOHN, AGED 46,
For Petitioner :SRI.S.K.BRAHMANANDAN
For Respondent :SRI.SAJAN MANNALI
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :30/05/2008
O R D E R
K.P. BALACHANDRAN, J.
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R.S.A. No 690 of 2003
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Dated this the 30th May 2008
JUDGMENT
Heard counsel on both sides.
2. This appeal is by the plaintiff who has lost concurrently in both the
courts below. He filed O.S. No 43 of 1996 before the Munsiff’s Court,
Kochi for a decree of injunction, both prohibitory and mandatory, inter alia,
on the allegation that the plaintiff and defendants are brothers, that
plaintiff and second defendant obtained possession of the schedule
property as per compromise order dated 6.12.1994 in O.P. No 265 of
1991 on the file of this court, that from that date onwards the executorship
came to an end and the plaintiff and defendants became absolute owners
in possession of the properties set apart to them as per the Will executed
by their father, that the plaintiff and second defendant were out of India
and when the plaintiff came back to India on 23.12.1994 he knew that the
first defendant has without his knowledge and consent put up boundary
wall separating the five cents allotted to the plaintiff and second
defendant, that the first defendant had been allotted the family house in
which he is residing along with his mother, that after the compromise order
the first defendant constructed wall on the southern and eastern side of
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plaint schedule property in such a way as to block the ingress and
egress to the plaint schedule property through the eastern gate and
also encroaching upon the plaint schedule property and reducing
portions thereof to his possession, that the plaintiff and second
defendant are entitled to right of way through the first defendant’s
property through the existing gate of 8′ width on the east to reach the
public road, that there is no other pathway available to the plaintiff
for access to the schedule property, that the second defendant is
arrayed as defendant as he was not available to sign the plaint; that
the first defendant is liable to remove the boundary wall and is also
not entitled to obstruct the pathway and the right of pathway available
for the plaintiff ;has to be declared and mandatory injunction has to
be granted directing removal of wall put up by the first defendant and
restraining him from causing any obstruction to the pathway.
3. The first defendant resisted the suit contending that the suit
is not maintainable; that the plaintiff and second defendant are not
in good terms with the first defendant, that there is no dispute
regarding the respective rights of the plaintiff and the first defendant
as per the Will, that plaintiff has put up boundary wall long before the
order of this court and that would be clear from the plaint in O.S. No
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14 of 1991, that the first defendant is entitled to put up boundary wall
across his property separating the five cents of property of the
plaintiff and second defendant, that the southern and eastern
compound wall mentioned in the plaint was constructed along with
the boundary of the first defendant’s properties, that he is not liable
to provide passage for ingress and egress to the plaint schedule
property and the plaintiff or the second defendant has no such right;
that there is road on the northern side of the plaint schedule property,
that the first defendant has not encroached upon the plaint schedule
property, that the plaintiff and second defendant are having access to
the schedule property from the northern side and the said pathway
was available for access to the said property even in 1996 during the
lifetime of the father and that the plaintiff has no cause of action and
the suit has to be dismissed.
4. On the above pleadings the trial court raised necessary
issues for trial and considering the evidence adduced in the case
which consisted of oral evidence of P.Ws 1 and 2 and D.Ws 1 and 2
and documentary evidence of Exts A1 to A4, B1 to B10 and C1 to
C3(a) dismissed the suit finding that the plaintiff is not entitled to right
of pathway through the property of the first defendant as claimed and
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that inasmuch as the allegation is that the boundary wall is put up
encroaching into the portions of schedule property, without a prayer
for recovery of the portion encroached upon, the plaintiff is not
entitled to a decree of mandatory injunction for demolition and
removal of the boundary wall put up so as to have recovery as well
indirectly without a prayer in that behalf. A.S. No 18 of 2001 filed by
the plaintiff assailing the dismissal of the suit by the trial court was
also dismissed by the first appellate court concurring with the
judgment and decree of the trial court. Hence this appeal by the
defeated plaintiff against the concurrent findings of the courts below.
5. After advancing vehement arguments on the merits of the
case and finding that there is absolutely no question of law available
to be canvassed in the case, counsel for the appellant-plaintiff
submitted that this R.S.A be dismissed but without prejudice to the
rights of the plaintiff to institute appropriate suit for recovery of
portions of the schedule property reduced to the possession by the
first defendant by putting up boundary wall encroaching into the
portions thereof. I heard the counsel for the first respondent as
well. In the nature of the disposal of the case by the courts below
refusing to grant mandatory injunction prayed for, it is only just and
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proper that right is provided to the plaintiff to file suit afresh to have
recovery of portions of schedule property, if any, trespassed upon by
the first defendant in the process of putting up boundary wall which is
sought for to be got demolished and removed by a decree of
mandatory injunction prayed for in the present suit.
6. In the result, I dismiss this R.S.A but without prejudice to the
rights of the appellant-plaintiff to file appropriate suit for recovery of
portions of schedule property, if any, trespassed upon and reduced
to the possession of the first respondent by putting up compound wall
separating the schedule property from his property which boundary
wall is sought to be got demolished by a mandatory injunction prayed
for in the present suit.
Sd/-
K.P. BALACHANDRAN
Judge
30/05/2008
en
[true copy]