RSA NO. 123 OF 2024 1 2025:KER:27267 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM THURSDAY, THE 27TH DAY OF MARCH 2025 / 6TH CHAITHRA, 1947 RSA NO. 123 OF 2024 AGAINST THE JUDGMENT AND DECREE DATED 28.02.2023 IN AS NO.43 OF 2019 OF SUB COURT, KOTTARAKKARA AGAINST THE JUDGMENT DATED 18.09.2013 IN OS NO.309 OF 2013 OF MUNSIFF COURT, KOTTARAKKARA APPELLANTS/RESPONDENTS IN A.S.NO.43/2019/PLAINTIFFS IN O.S.309/2013: 1 PONNAMMA BABY AGED 82 YEARS W/O LATE BABY PARAKKAL VATTAVILA VEEDU, SURABHI ROAD, PULAMON P.O KOTTARAKKARA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT., PIN - 691531 2 CHACKO AGED 59 YEARS, S/O LATE BABY PARAKKAL VATTAVILA VEEDU, SURABHI ROAD PULAMON P.O., KOTTARAKKARA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT., PIN - 691531 3 SHERLY AGED 64 YEARS D/O PONNAMMA BABY, EDAKKAMANNIL HOUSE, THRIKKAKKARA KOCHI., PIN - 682021 4 JANCY KUNJUMON AGED 62 YEARS D/O PONNAMMA BABY KIZHAKKEMUKALUVILA, NEDUMPAYIKULAM KUNDARA, KOLLAM., PIN - 691501 RSA NO. 123 OF 2024 2 2025:KER:27267 5 SHEELA KUNJUMON AGED 57 YEARS D/O PONNAMMA BABY VALIYAVILA PUTHEN VEEDU, AMBALAKKARA VALAKOM, KOTTARAKKARA., PIN - 691532 6 SUNI BABY AGED 54 YEARS D/O PONNAMMA BABY KARIYOTTU KIZHAKKEKKARA PUTHEN VEEDU CHAKKUVARAKKAL, KOTTARAKKARA., PIN - 691538 BY ADVS. SWAPNA VIJAYAN K.V.ANIL KUMAR RADHIKA S.ANIL RESPONDENT/APPELLANT IN A.S.43/2019/RESPONDENT IN O.S.309/2013: DR.EBY JOHN AGED 53 YEARS, S/O. JOHN, ROSE LAND, SURABHI ROAD, PULAMON P.O KOTTARAKKARA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT., PIN - 691531 BY ADV SANTHOSH P.ABRAHAM THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA NO. 123 OF 2024 3 2025:KER:27267 JUDGMENT 1. The plaintiffs in a suit for permanent prohibitory injunction are the appellants. The suit was filed to restrain the defendant from making obstruction to the road frontage area on the south- western portion of the plaint schedule property, to direct the defendant to demolish the fully constructed rubble wall on the road frontage of the south-western portion of the plaint schedule property, to give direction to the defendant to restore the lateral support of plaint A schedule property i.e., C schedule property and to recover D schedule property and to fix the boundary of the south-eastern portion of the plaint schedule property. 2. The claim of the plaintiffs is that the plaint A schedule property is having road frontage to the Panchayat road on the south- western corner of the plaint schedule property. Even though, as per the plaint allegations, the defendant's property is stated as situated on the eastern side of the plaint schedule property, it is in evidence that the defendant's property is situated on the RSA NO. 123 OF 2024 4 2025:KER:27267 western side of the plaint schedule property and that Panchayath road is situated on the eastern side of the plaint A schedule property. In view of the said fact, the grievance of the plaintiffs appears to be that the defendant constructed his southern compound wall, closing the plaintiffs' access through plaint D schedule property to the Panchayat road situated on the southern side of the defendant's property. Plaint D schedule property is a small triangle plot situated on the southern side of the defendant’s property lying beyond the western boundary line of the plaintiff. The plaintiffs claim that plaint D schedule property is part of plaint A schedule property. 3. The defendant opposed the suit, contending that the plaintiffs do not have any road frontage on the south-western portion. The defendant has no property on the eastern side of the plaintiffs’ property. The defendant constructed the compound wall on the south of his property after demolishing a 12-year- old compound wall on the same foundation and fixing a new gate. When the defendant constructed a residential building on his property. The construction of the compound wall was made RSA NO. 123 OF 2024 5 2025:KER:27267 after leaving more than sufficient space from the property. 4. The Trial Court partly decreed the suit, relying on Ext.C9 Plan. The defendant is restrained from obstructing the road frontage area of the south-western corner of plaint A schedule property, and the defendant is directed, by way of mandatory injunction, to demolish the rubble wall constructed by encroaching into plaint A schedule property, which is shown as 'EPQ' line in Ext.C9 plan. The plaintiffs are allowed to recover the 'EPQ' plot in Ext.C9 plan from the defendant. The boundary line of plaint A schedule property is fixed as 'EFGHIJKLME'. 5. The Defendant filed an Appeal before the First Appellate Court. The First Appellate Court allowed the Appeal, setting aside the judgment and decree passed by the Trial Court and dismissed the suit. The First Appellate Court found that the property of the plaintiffs is not properly identified; that even though the Ext.A1 Title Deed standing in the name of the husband of the first plaintiff has 1 Acre 87 cents of land, only 39 Ares are included in the schedule; that the difference in the area is not explained in the plaint schedule and that the plaintiffs have sold RSA NO. 123 OF 2024 6 2025:KER:27267 several plots and the details of the said properties are not disclosed. 6. I heard the learned counsel for the appellants, Sri K.V. Anil Kumar, and the learned counsel for the respondent, Sri. Santhosh P. Abraham. 7. The learned counsel for the appellants contended that the property is correctly identified by the Advocate Commissioner in Ext.C9 plan. The Trial Court correctly appreciated the pleadings and evidence and identified the property and thereby allowed the suit in part. The Appellate Court ought not to have interfered with the well-considered judgment and decree of the Trial Court. 8. On the other hand, the learned counsel for the respondent contended that the Trial Court, without any discussion, simply relied on Ext.C9 Plan and decreed the suit by a cryptic judgment. The pleadings and evidence were not weighed in the process of adjudication. The Appellate Court correctly appreciated the pleadings and evidence and arrived at the right conclusion. RSA NO. 123 OF 2024 7 2025:KER:27267 9. I have considered the rival contentions. 10. I have gone through the rough sketch and Plan made available by the counsel. In order to prove that plaint D schedule property is a part of property covered by Ext.A1, the plaintiffs ought to have identified the entire property covered by Ext.A1. Admittedly, the properties were sold to Jacob Mathew, Jacob Chacko, and John Varghese out of the property covered by Ext.A1, but the details of the said properties are not given. Even though the plaintiffs alleged that the defendant's property is situated on the eastern side of the plaint A schedule property, it is in evidence that the defendant's property is situated on the western side. The First Appellate Court has found that the property of the defendant is situated on the north-western corner of John Varghese's property. The First Appellate Court found that the south-eastern point of the property of the defendant touches the north western point of the property of John Varghese. In such a case, there could not be any access from the plaint A schedule property of the plaintiffs situated on the eastern side of the defendant’s property and the northern RSA NO. 123 OF 2024 8 2025:KER:27267 side of the property of John Varghese through a south-western portion of the plaint A schedule property. Going by the lie of the properties, it could not be said that the Plaint D schedule property identified by the Advocate Commissioner is a part of the Plaint A schedule property. Plaint D schedule is a triangle- shaped portion having an extent of 0.03 Ares situated fully on the southern side of the defendant's property. There could not be such an extension beyond the western boundary line of the plaintiffs' property. It is seen that the plaintiffs have extensive road frontage on the eastern side of their property. At any rate, the properties are not correctly described and identified by the plaintiffs. The First Appellate Court has correctly appreciated the pleadings and evidence in the case and arrived at the right conclusion. I do not find any ground or reason to interfere with the judgment. No substantial question of law arises in the matter. Accordingly, the Appeal is dismissed. Sd/- M.A.ABDUL HAKHIM Shg/ JUDGE