Kerala High Court
K. Kunhikannan vs Divya. K on 21 February, 2025
2025:KER:15344
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
RSA NO. 608 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 23.09.2023 IN AS NO.38 OF 2022 OF
SUBORDINATE JUDGE'S COURT, HOSDRUG ARISING OUT OF THE ORDER/JUDGMENT DATED
29.03.2022 IN OS NO.448 OF 2013 OF MUNSIFF COURT, HOSDRUG
APPELLANT(S)/APPELLANT/1ST DEFENDANT:
K. KUNHIKANNAN
AGED 65 YEARS
S/O LATE VELLUNGAN AND CHOYICH, R/AT THOKKANAM, P.O. PAKKAM,
PANAYAL VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT,
PIN - 671317
BY ADVS.
A.ARUNKUMAR
S.SHYAM KUMAR
SACHIN GEORGE ARAMBAN
RESPONDENT(S)/RESPONDENTS/PLAINTIFF & 2ND DEFENDANT:
1 DIVYA. K
AGED 35 YEARS
D/O.DAMODHARAN AND W/O. SURENDRAN R/AT.PADINHAREKKARA, NEAR
VINAYAKA THEATRE KARATTUVAYAL, P.O. KANHNAGAD, HOSDURG VILLAGE,
HOSDURG TALUK, KASARAGOD., PIN - 671315
2 K.KUNHIRAMAN
AGED 54 YEARS
S/O. LATE VELLUNGAN AND CHOYICHI RESIDING NEAR CVHSS
AMBALATHARA P.O.PULLUR, PULLUR VILLAGE, HOSDURG TALUK, PIN -
671531
BY ADVS.
SURESH KUMAR KODOTH
SUKARNAN(K/001572/2021)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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2
JUDGMENT
1. The 1st defendant in a suit for permanent prohibitory injunction
is the appellant. The 1st respondent/plaintiff filed the suit
claiming that she derived the plaint schedule property as per
Exts.A1 and A2 documents. As per Ext.A1 document, she
derived 48.5 cents of land. As per A2 document, she derived 88
cents of land. The defendants are having property on the
southern side of the plaint schedule property. The cause of
action for the suit is that the defendants obstructed the
construction of the compound wall, and they are attempting to
trespass into the property of the plaintiff .
2. After the filing of the Commission Report, the extent of the
plaint schedule property was amended as 43 cents and 85 cents
respectively.
3. The 1st defendant filed a Written Statement opposing the suit
prayers, contending, inter alia, that he has 1.70 acres of land as
per document No.1597/1981. Earlier, when one Chandran
trespassed into a portion of the said property, the 1st defendant
filed O.S.No.154/2009, and the same is pending consideration.
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The 1st defendant is in possession of the remaining property to
which the plaintiff has no manner of right of interest over the
same. The 2nd defendant has property on the north of the 1st
defendant's property, and it is the 2nd defendant's property,
which is abutting the plaintiff's property, and the 1 st defendant's
property is not abutting the plaint schedule property.
4. The 2nd defendant filed a written statement contending that he
had 1 acre of land and he sold 88 cents of land to the plaintiff
retaining 12 cents of land on the southern side.
5. The Trial Court decreed the suit in favour of the plaintiff.
Though the 1st defendant filed an appeal before the First
Appellate Court, the same was dismissed confirming the
judgment and decree of the Trial Court.
6. I heard the learned counsel for the appellant Sri.A Arunkumar
and the learned counsel for the 1st respondent Sri.Suresh Kumar
Kodoth.
7. The learned counsel for the appellant contended that the
plaintiff has shown that the defendants are having the property
on the southern side of the plaint schedule property. Hence, it
could not be said that the 1st defendant does not have any
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property on the southern side. The plaint schedule property is
not properly identified by the plaintiff. The plaintiff ought to
have identified the property as per Ext.A6 prior title deed.
8. On the other hand, the learned counsel for the 1 st respondent
contended that in the written statement, the 1st defendant has
specifically stated that he does not have any property abutting
the plaint schedule property. In the Commission Report also, it
is found that the 1st defendant does not have any property
situated near the plaint schedule property. Accordingly, the 1 st
defendant cannot have any grievance in the matter.
9. I have considered the rival contentions.
10. Initially, it was the case of the plaintiff that the 1 st defendant
had property on the southern side of his property. Then, the 1st
defendant contended that the 1st defendant did not have any
property abutting the property of the plaintiff. Now, the 1st
defendant contends that he has property abutting the plaint
schedule property, and the plaintiff contends that the 1st
defendant does not have any property abutting the plaint
schedule property. I am unable to understand, in such a
situation, why the 1st defendant is made a party in the suit. The
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plaint schedule property belonging to the plaintiff is identified
in Ext.C5 and C6 in accordance with the description and
boundaries shown in the Plaint. The 1 st defendant has not taken
any steps to prove his objection to Exts.C5 and C6 by examining
the Advocate Commissioner. Going by Ext.C6 Plan, it is seen
that the property of the 1st defendant is situated 5 meters away
from the southern boundary of the plaint schedule property and
there is another property between the properties of the plaintiff
and the 1st defendant.
11. The trial court decreed the suit finding that the 1 st defendant is
not a necessary party in the suit. The First Appellate Court also
found that the 1st defendant does not have any property
adjacent to the plaint schedule property, and hence, he cannot
have any grievance. If the 1st defendant had any grievance with
respect to the prayers sought by the plaintiff, he should have
adduced evidence with respect to the same with proper
pleadings. That was not done in the suit. He simply stated that
he does not have any property abutting the plaint schedule
property, which was proved to be correct in the Trial.
Accordingly, I do not find any ground or reason to interfere
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with the judgment of the trial court, which is confirmed by the
appellate court also.
Hence, this Regular Second Appeal is dismissed.
SD/-
M.A.ABDUL HAKHIM
JUDGE
JJ
