In a second appeal against the dismissal of a suit for injunction concerning a compound wall, the Court dismissed the appeal, holding that no boundary fixation was prayed and the requisite survey evidence was absent to grant an injunction for wall construction.
The second appeal was dismissed with the parties suffering respective costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.SOMARAJAN
WEDNESDAY,THE 07TH DAY OF NOVEMBER 2018/16TH KARTHIKA, 1940
RSA.No.77 of 2007
AGAINST THE DECREE AND JUDGMENT DATED 26.9.2006 IN AS NO.75/2003 OF THE DISTRICT COURT, PALAKKAD.
AGAINST THE DECREE AND JUDGMENT DATED 20.12.2002 IN OS NO.71/2001 OF THE MUNSIFF'S COURT, PALAKKAD.
APPELLANTS/RESPONDENTS/PLAINTIFFS:
1 RAJENDRAKUMAR, S/O.SUBBAYYANACHARI, NOW RESIDING AT SREE VALSAM, MALAMAL COLONY, KATTUSSERI AMSOM, ALATHUR TALUK.
AS PER THE ORDER DATED 28.9.2016 ON MEMO VIDE CF 5364/2016 DATED 19.9.2016 THE FIRST APPELLANT IS RECORDED AS THE SOLE LEGAL REPRESENTATIVE OF THE DECEASED SECOND APPELLANT
BY ADVS. SRI.D.KRISHNA PRASAD SMT.O.K.SANTHA SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.T.P.ELDHOSE
RESPONDENTS/APPELLANTS 2 TO 6/2ND DEFENDANT: AND LEGAL REPRESENTATIVES OF FIRST DEFENDANT:
RSA NO.77 OF 2007
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BY ADVS. SRI.AJEESH K.SASI SMT.POOJA PANKAJ SRI.M.GEORGE THOMAS SRI.P.VIJAYA BHANU (SR.)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO.77 OF 2007
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JUDGMENT
Against the decree and judgment dated 26.9.2006 in A.S.No.75 of 2003 of the District
Court, Palakkad, the plaintiffs came up with this second appeal.
filed by the plaintiffs with a prayer not to obstruct construction of the western compound wall of their property. It was decreed by the trial court against which an appeal was preferred before the District Court, Palakkad. In appeal, the judgment and decree of the lower court was set aside and the suit was dismissed by the judgment and decree dated 26.9.2006. Aggrieved by the said decree and judgment, the plaintiffs came up with this second appeal.
plaintiffs is that they have purchased six cents of property under Ext.A3 document from its prior
RSA NO.77 OF 2007
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owner and when they began to construct a compound wall on its western boundary, it was obstructed by the defendants which has necessitated the suit for injunction simplicitor.
the property purchased by the plaintiffs form part of a large extent of 15 cents of registered holding out of which the first defendant had purchased 9¼ cents of property under Ext.B5 document, which is the document earlier in point of time. Subsequently, the balance extent was purchased by the plaintiffs herein.
that the property belonged to the first defendant covered by Ext.B5 document having an extent of 9¼ cents, which is in earlier point of time, has not been located at first out of the large extent of 15 cents for the purpose of locating the balance extent of property which was available with the seller at the time of execution of Ext.A3 sale
RSA NO.77 OF 2007
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deed. Since Ext.B5 document relates to a portion of the large extent of 15 cents of property, it should be located at first so as to find out what is the balance extent available with the seller at the time of execution of Ext.A3 sale deed. That has not been done by the Commissioner while preparing Ext.C4 plan. Instead, what is seen done by the Commissioner is by locating the property covered by Ext.A3 sale deed at first out of the large extent of 15 cents. If there is any reduction in extent of property, needless to say that it will goes to the person who acquired the last portion of the property out of the large extent. The legal position would be very same when there is excess land and it will go to the person who purchased the last plot of the large extent.
non-suit the plaintiffs as there is no prayer for fixation of boundary in the suit. What is sought, only for a permanent prohibitory injunction. The prayer for permanent prohibitory injunction itself
RSA NO.77 OF 2007
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will show what is behind it and the real intention
of the plaintiffs in bringing the suit of this nature. A prayer for permanent prohibitory injunction was incorporated for the purpose of construction of boundary wall through their boundary. No survey stones or any boundary structures were reported in order to ascertain the boundary without which no injunction can be granted especially for the construction of a boundary wall separating the properties.
The second appeal lacks in merits. Deserves only dismissal. I do so. The parties shall suffer their respective costs.
SD/
P.SOMARAJAN
JUDGE
ahz/
3 issues framed by the court
Whether a second appeal against a dismissal of an injunction suit should be allowed when no prayer for fixation of boundary was made.
Whether the District Judge erred in reversing the trial court's findings on the allocation of property extents.
Whether an injunction can be granted for construction of a boundary wall without survey stones or boundary structures.
RAJENDRAKUMAR
K.THANKAMMAL
SIVAN
VESU
JYOTHI
BINDU
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
