(1) Can the successful party in the outcome in a suit, appeal against an adverse finding in the suit?

(2) Can the acts complained of in this suit, come under public nuisance for complying with the mandatory procedure under Section 91 CPC?

2. Challenging the dismissal of O.S.No.724 of 2010 of the Munsiff’s Court, Kollam by the 1st Additional District Court, Kollam, through the judgment and decree in A.S.No.16 of 2013, the plaintiffs have come up with this Regular Second Appeal.

3. Initially, O.S.No.724 of 2010 was decreed by the Munsiff’s Court, Kollam. The 1st defendant in the suit challenged the judgment and decree through A.S.No.16 of 2013. The lower appellate court allowed the appeal by setting aside the judgment and decree passed by the Munsiff’s Court, and dismissing the suit. Plaintiffs 1 and 2 are husband and wife. The 3rd plaintiff is their daughter.

4. According to the plaintiffs, plaintiffs 1 and 2 purchased plaint A schedule property in the year 1985 through three Sale Deeds from the 2nd defendant. In the year 1993, plaintiffs 1 and 2 settled the plaint A schedule property in favour of the 3rd plaintiff through Exhibit-A1 Settlement Deed. When a mistake in the Survey number of the property scheduled in Exhibit-A1 could be traced out in Re-Survey, plaintiffs 1 and 2 executed Exhibit-A2 Correction Deed for rectifying the mistake in the Survey number, crept in Exhibit-A1. Plaint A schedule property is having an extent of 6.66 Ares in Re-Survey No.66 in Block No.87 of the Vadakkevila Village.

5. According to the plaintiffs, plaint B schedule property is having an extent of 17.5 cents. The 1st defendant purchased plaint B schedule property in Re-Survey No.36, in Block No.87 in the year 1990 and he has been residing in the building situated in plaint B schedule property. According to the plaintiffs, there are 7 plots of properties in the said Block, which was owned and possessed by one Smt. Amaravathi and her children. They sold the said plots to several persons and a common road was formed for access to the said Colony for the use of all the residents, from the northern main road.

6. Further, according to the plaintiffs, a strip of land was kept in between the said common road and the plaint B schedule property. The said strip of land is scheduled as plaint C schedule item. According to the plaintiffs, plaint C schedule strip of land was provided as a parking place, play ground and also for other common purposes, for the inhabitants of the Colony.

7. It was in the year 1969, that Smt. Amaravathi sold plaint B schedule property to one Rama Rao Kini, and the rest of the property to the 2nd defendant’s father late Sekharan. After the death of Sekharan, the 2nd defendant derived title over the property purchased by Sekharan. It was from the 2nd defendant, that the plaintiffs purchased plaint A schedule property as aforesaid.

8. Plaint C schedule is situated in Re-Survey No.64 of Block No.87. The pathway situated at the western side of plaint C schedule item has now become a public road being used by the inhabitants of the Colony and their visitors. In the year 1990, the 1st defendant made attempts to trespass into plaint C schedule property. At that time, the 2nd defendant filed O.S.No.1033 of 1990 before the Munsiff’s Court, Kollam against the 1st defendant for perpetual injunction against trespass. The said suit was dismissed on the ground that either the plaintiff or the 1st defendant had no exclusive possession over plaint C schedule item.

9. The 1st defendant again allegedly attempted to grab plaint C schedule property, and then the 2nd defendant filed O.S.No.217/1994. The said suit was also dismissed. The appeal filed by the 2nd defendant challenging the dismissal, was also dismissed.

10. Taking advantage of the situation, the 1st defendant had allegedly demolished the western boundary wall described as ‘aramathil’ of plaint B schedule property and constructed a new compound wall described as plaint D schedule item, at