IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 SA.No. 7 of 1996(A) --------------------------- AS.216/1990 of DISTRICT COURT,KOZHIKODE OS.96/1990 of SUB COURT, QUILANDY .................... APPELLANTS/APPELLANTS/PLAINTIFFS.: ----------------------------------------------------------- 1. MANAYATH GOVINDAN NAIR, AGED 39 YEARS, S/O.KRISHNAN NAIR, RESIDING AT KIZHARIYUR AMSOM AND DESOM OF KOYILANDY TALUK, PIN-673 324. 2. MANAYATH AMMALU AMMA, AGED 33 YEARS, D/O.KRISHNAN NAIR, RESIDING AT KIZHARIYUR AMSOM AND DESOM OF KOYILANDY TALUK, PIN-673 324. BY ADV. MR.N.L.KRISHNAMOORTHY MR.K.LAKSHMINARAYANAN RESPONDENTS/RESPONDENTS/DEFFENDANTS: ---------------------------------------------------------------------- 1. KAIPURATH ASOKAN, AGED 42 YEARS, S/O.CHATHU, RESIDING AT KIZHARIYUR AMSOM DESOM OF KOYILANDY TALUK. 2. KAIPURATH KANNAN, AGED 60 YEARS, S/O.CHATHU, RESIDING AT KIZHARIYUR AMSOM DESOM OF KOYILANDY TLUK. R1 & R2 BY MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE R1 & R2 BY ADV. MR.K.JAYAKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 7 of 1996(A) ORDER ON CMP NO.654/2000 IN S.A. NO.7/1996 DISMISSED 04/02/2009. SD/- P.N.RAVINDRAN, JUDGE //TRUE COPY// P.S. TO JUDGE Rs/ P.N.Ravindran, J. ================== S.A. No.7 of 1996 ================= Dated this the 4th day of February, 2009. JUDGMENT The appellants are the plaintiffs in O.S.No.96 of 1990 on the file of the Court of the Subordinate Judge of Quilandy. The respondents are the defendants therein. The suit instituted by the appellants for a mandatory injunction to remove the unauthorised bund laid through their paddy fields and in the alternative for realisation of the sum of Rs.15,000/- as damages and for recovery of possession of the lands trespassed upon, was dismissed by the trial court and the decree of dismissal was confirmed in appeal by the lower appellate court. Hence, this Second Appeal. 2. The plaintiffs are husband and wife. The suit properties belong to the first plaintiff. The suit was instituted on 11.7.1986 complaining that a road was laid through the properties of the first plaintiff by the defendants and others while the first plaintiff was in police custody. The defendants resisted the suit contending inter alia that a road having an approximate width of 7 to 10 feet was already in existence between Kizhariyur Palli and Podiyadi bund, that there was a proposal for widening the road to 7 meters width, that the first reach of the said road was widened by the Kizhariyoor Panchayath, the second reach was widened SA 7/96 -: 2 :- utilising Government funds, that the work of widening the last reach from Kozhapara to Podiyadi bund was taken up by the Kizhariyoor Grama Panchayath, that the first plaintiff voluntarily surrendered a portion of his wet lands, that the work of widening the road commenced in November, 1985 and was completed by April, 1986, that in certain portions of the road side walls had been constructed, that the first plaintiff, who had surrendered a portion of his wet lands dug up the road with a view to prevent the residents of the nearby Harijan Colony from using the road, that thereupon they filed a complaint before the police, that based on the said complaint, the first plaintiff was taken into police custody, that the committee constituted to widen the road repaired the road, that the plaintiffs have suppressed material and relevant facts in the plaint and that the suit is bad for nonjoinder of necessary parties. The plaintiffs filed a rejoinder disputing the case set out by the defendants in the written statement. 3. In the trial court, the first plaintiff was examined as PW1 and two residents of the locality were examined as PWs 2 and 3. The plaintiffs also produced and marked Exts.A1 to A12 on their side. On the side of the defendants, the first defendant was examined as DW1 and Exts.B1 to B4 were marked. A Commission was taken out at the instance of the plaintiffs. The Commissioner filed Ext.C1 report wherein he inter alia stated that shops exist on either side of the road, that the road has a uniform width of 7 metres and that retaining walls have been constructed SA 7/96 -: 3 :- on both sides of the road. The trial court on an analysis of the evidence oral and documentary available in the case held that the plaintiffs' case that his land was trespassed upon and the road constructed while he was in police custody cannot be believed. The court below also held relying on the evidence on record that a road was already in existence, that the widening of the road was completed by April, 1986, that the first plaintiff had orally given his consent for surrendering a portion of the wet lands belonging to him and that he had also surrendered wet lands belonging to him for the purpose of widening the road. The trial court held that the suit is not maintainable against the defendants and that other members of the Committee are necessary parties. The suit was dismissed on the finding that the road was widened with the consent of the plaintiffs. The plaintiffs challenged the judgment of the trial court in appeal. The lower appellate authority concurred with the finding of the trial court and dismissed the appeal. 4. I have considered the submissions made at the Bar by Sri. K.Lakshminarayanan, the learned counsel appearing for the appellants and Sri.K.Jayakumar, the learned counsel appearing for the respondents. The learned counsel for the appellants contended that as the road was widened utilising Government funds, possession of the land could have been taken over only under the provisions of the Land Acquisition Act, 1960 or by a registered instrument. He contended that as the first plaintiff's title is not in dispute, he is entitled to the reliefs prayed for in SA 7/96 -: 4 :- the suit. Per contra, the learned counsel appearing for the respondents contended that these contentions were not set out in the plaint and that the suit was instituted on the allegation that the wet lands belonging to the first plaintiff have been trespassed upon while he was in police custody. The courts below have concurrently held that a road having a length of 3 kms. was in existence that the road was widened in two reaches on earlier occasions and that the third and the last reach was widened by April, 1986. The courts below have also held that the case of the first plaintiff that he has not voluntarily surrendered the lands and that the lands were encroached upon while he was in police custody on 12.5.1981 cannot be believed. On going through the plaint, it can be seen that the plaintiff has not even referred to the existence of the road. His case was that a new road was constructed while he was in police custody. The Commissioner appointed by the trial court has reported that shop buildings exist on either side of the road and that retaining walls have also been put up. 5. On the evidence on record, it cannot be said that the finding of the courts below that the first plaintiff had voluntarily surrendered the land and that the existing road was widened by April, 1986 is in any way infirm. The Apex Court has in Gurudev Kaur and others v. Kaki and others - 2007 (1) SCC 546 held that the High Court exercising jurisdiction under Section 100 of the Code of Civil Procedure cannot sit in appeal over the concurrent findings of fact arrived at by the courts SA 7/96 -: 5 :- below, re-appreciate the evidence and arrive at a different finding even if another view is possible on the evidence on record. In the instant case, the courts below have disbelieved the testimony tendered by the first plaintiff examined as PW1 and his neighbours examined as PWs 2 and 3 that the road was laid when the first plaintiff was in police custody. It has come out in evidence that a road was already in existence as claimed by the defendants and that utilising Government funds and with the co- operation of the neighbouring land owners, the road was widened. Ext.C1 Commission report discloses that shop buildings also exist on either side of the road. On the evidence on record, it cannot be said that the findings of the court below are in any way perverse. I therefore hold that there is no merit in this Second Appeal. The Second Appeal fails and is accordingly dismissed. No costs. P.N.Ravindran, Judge. ess 20/2