IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 347 of 2010()
1. THOMAS, S/O.JOHN, VADAKKEKARA HOUSE,
... Petitioner
Vs
1. THOMAS @ JOY,
... Respondent
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent :SRI.RAJU JOSEPH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :08/09/2010
O R D E R
S.S.SATHEESACHANDRAN, J
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R.S.A No.347 OF 2010
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Dated this the 8th day of September 2010
JUDGMENT
Plaintiff is the appellant. Suit was one for declaration
of title, recovery of possession and injunction, both prohibitory
and mandatory. Both the courts below have declined the reliefs
canvassed by the plaintiff. At the time of hearing of the appeal,
the learned counsel appearing for the appellant/plaintiff
submitted that the main dispute agitated upon by the parties
related to a small strip of land having an extent of 250 sq. links
which was claimed by the plaintiff as part of his property but
trespassed upon by the defendant. Since such area being
negligible, the learned counsel submits that further probe as to
whether the plaintiff can seek recovery of that property with
reference to the materials tendered in the case does not have
much merit. However, it is submitted, the plaintiff has a genuine
apprehension that there would be further trespass into his
property taking advantage of the adverse decision rendered in his
suit. In the context, it is submitted that though the title deeds of
plaintiffs demonstrated that he has title over an extent of 3 acres
36 = cents, on determination of the property by survey
measurements with reference to the deeds what is presently
R.S.A No.347 OF 2010 – 2 –
available is only 3 acres 20.213 cents. The common boundary
which the plaintiff has with the defendant has been fixed by the
advocate commissioner and shown in the plan as RQ. The
learned counsel submitted that both the courts below which have
been called upon to examine the recovery of possession claimed
on the basis of title inadvertently overlooked the claim for
injunction on the basis of the apprehension raised by the plaintiff
that there is a threat of trespass over the property now under his
possession and enjoyment. Whether the plaintiff was entitled to
the decree of injunction in respect of the property as available at
present, which has been identified by the commissioner under
Ext.C2 was necessarily a matter which should have been gone
into by the courts irrespective of the rejection of recovery claimed
over the trespassed area. But, it was not done is the grievance
espoused by the learned counsel for the appellant to contend that
the plaintiff, in the interest of justice, has to be granted a decree
of injunction over the property identified in his favour under
Ext.C2 plan, to safeguard and protect that property. Since his suit
in its entirety has been dismissed, it is submitted by the learned
counsel even in the event of a subsequent trespass, whatever be
the merit of the cause of action, the plaintiff would be seriously
prejudiced in getting appropriate relief from the competent court.
R.S.A No.347 OF 2010 – 3 –
Per contra, the learned counsel for the respondent pointed out
that both the courts have found that not even an inch of land of
the plaintiff had been trespassed upon by the defendant and that
being so, apprehension canvassed that there is a likelihood of
trespass in view of the dismissal of the suit is bereft of any merit.
2. The property of the defendant has been identified in
Ext.C2 plan as MNPRS as having an extent of 6.10 are. Property
of the plaintiff is identified under the plan as P3 A B C D E F G L K
O R R1 R2 R3 P1 P2 plot. The common boundary between the
properties of the parties has also been fixed as RQ in C2 plan.
When such identification has been done and it has been accepted
by the court, over which there is dispute is subsisting between the
parties, in the event of any trespass, over the property identified
as belong to the plaintiff, nothing prevents him from approaching
the court and seeking appropriate reliefs. To allay the
apprehension raised by the plaintiff, it need only be recorded
that the parties have no dispute over the identification of the
properties as determined by the commissioner in Ext.C2 plan and
that RQ is the common boundary of their properties. Though I
find that there is some force in the argument raised by the
appellant’s counsel that the decree of injunction canvassed in the
suit was not examined by the court below in the proper
R.S.A No.347 OF 2010 – 4 –
perspective. No further enquiry thereof is called for in view of the
recording of the common boundary of the parties under C2 plan,
as it would safeguard the interest of the plaintiff over the property
identified as belonging to him. A meticulous consideration of the
materials tendered in the case with reference to the pleadings to
examine the question whether the plaintiff is entitled to a decree
of injunction is not warranted in the second appeal. Subject to
the above observations made, confirming the decree and
judgment of the court below, the appeal is disposed of directing
both sides to suffer their costs.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//True Copy//
P.A to Judge
vdv