In this second appeal regarding a suit for injunction over a disputed way, the High Court dismissed the appeal holding that challenging the survey plan for the first time at this stage was impermissible without material foundation or examination of the Commissioner.
R.S.A No.249 of 2023 is dismissed.
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 SATHISH NINAN
THURSDAY, THE 8TH DAY OF JUNE 2023 / 18TH JYAISHTA, 1945
RSA NO. 249 OF 2023
AGAINST THE JUDGMENT DATED 13.1.2023 IN A.S 79/2017 OF SUB COURT, KANNUR
JUDGMENT AND DECREE DATED 31.3.2017 IN OS 529/2014 OF PRINCIPAL MUNSIFF COURT ,KANNUR
APPELLANTS/DEFENDANTS:
1 THONIYOTT RENJITH,AGED 55 YEARS,S/O. POOVANATH GOVINDAN, RESIDING AT MADATHIL HOUSE, MUNDERI AMSOM, EACHUR DESOM, KANNUR TALUK AND DISTRICT,PIN - 670591. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, MR. THONIYOTT JAYAPRAKASH, AGED 63 YEARS, S/O. P. GOVINDAN, RESIDING AT MADATHIL HOUSE, MUNDERI AMSOM, EACHUR P.O., KANNUR)
RESPONDENT/PLAINFF:
MEENOTH PAVITHRAN,AGED 62 YEARS S/O. KAYYALAKANDY KUNHIKRISHNAN NAMBIAR, RESIDING AT UTHRADAM, EACHUR (P.O), MUNDERI AMSOM, EACHUR DESOM, KANNUR TALUK AND DISTRICT, PIN – 670591 ADV.SRI.K.C.SANTHOSH KUMAR
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Sathish Ninan, J.
==============================
R.S.A No.249 of 2023
==========================
Dated this the 8th day of June, 2023
JUDGMENT
The concurrent decree in a suit for prohibitory
and mandatory injunction is under challenge by the defendants.
schedule property is the plaint 'B' schedule way having a width of three metres. On its western side is the property of the defendant.
side of plaint 'A' schedule property. By surrender of portions of the property on the east and the west, the 'edavazhy' was widened into a three metres wide way, which is the plaint 'B' schedule. Alleging that the defendants caused obstruction to the plaint 'B' schedule way, the suit has been filed for mandatory injunction to remove the obstructions and for prohibitory injunction not to obstruct the way.
R.S.A No.249 of 2023
-: 2 :-
way and claimed it to be part to their property.
plan, the trial court held that the 'B' schedule way is comprised in Survey Nos. R.S 120/10 and R.S 125/1 and that the defendants do not have any property in R.S 125/1. It was also found that the plaint 'B' schedule way continues further towards the south leading into a paddy field and that the said way has a width of 1 ½ metres. The existence of the said way probabilises the plaintiff's case that the 'B' schedule originally existed with a width of 1 ½ metres, which was subsequently widened. Thus, the defendants' claim of exclusive right over the 'B' schedule way was negatived and the suit was decreed. The decree was affirmed by the first appellate court concurring with the findings of the trial court.
appellants vehemently argued challenging the correctness
R.S.A No.249 of 2023
-: 3 :-
of Ext C6 plan. He would argue that the identification made by the Commissioner in Ext C6 plan is at variance from the measurements in the field measurement book. If the property is correctly identified, the entire plaint 'B' schedule way would form part of the defendants' property, he urges. He argued with reference to the side measurements shown in Ext C6 plan.
Ext C6 plan. The Commissioner who submitted Ext C6 plan, nor the Surveyor were examined to prove that the plan prepared is incorrect. The plan was accepted and relied on by the trial court. Before the first appellate court, not even a ground is seen urged in the memorandum of appeal challenging the correctness of Ext C6 plan and the identification made thereunder, much less any arguments. It is not open for the appellants to challenge the correctness of Ext C6 plan for the first time at this second appellate stage, and that too unsubstantiated by any materials on record. Though referring to a plan in respect of field No.120
R.S.A No.249 of 2023
-: 4 :-
maintained at the Village Office, Munderi, which is sought to be produced as additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, the learned counsel would argue that one side measurement shown in Ext C6 plan with from a survey stone is at variance from the side measurement shown in the additional document.
However, it is to be noticed that, in Ext C6 plan the Commissioner has indicated thus “STONE OUT OF POSITION”. Therefore, the contention has no force. At any rate, such contentions are not available for the appellant to be urged at the second appellate stage without any
factual or material foundation on record.
R.S.A is dismissed.
Sd/-
Sathish Ninan, Judge
vdv
2 issues framed by the court
Whether the correctness of Ext C6 plan could be challenged for the first time at the second appellate stage without affidavit support.
Whether the plan was correctly accepted despite variance with additional measurements.
1 provisions across 1 enactments
Thoni Cott Renjith and another
Meenoth Pavithran
Sathish Ninan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
