IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 RSA.No. 776 of 2009() --------------------- AS.28/1999 of SUB COURT, OTTAPPALAM OS.67/1994 of MUNI-MAGI.COURT,PATTAMBI .................... APPELLANTS: APPELLANTS/PLAINTIFFS 2 AND 3 ------------------------------------------------------------------ 1. BALAN, S/O. THOTTINGAL DECEASED VELU, 2. NARAYANAN, S/O. THOTTINGAL DECEASED VELU BOTH ARE RESIDING AT KOODALLUR AMSOM, OTTPALAM, TALUK, PALAKKAD DIST. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENTS/RESPONDENTS/DEFENDANTS --------------------------------------------------------------- 1. ANAKKARA PANCHAYATH, REPRESENTED BY ITS SECRETARY, RESIDING AT KUMBIDI, ANAKKARA VILLAGE, PALAKKAD. 2. SANKARAN, S/O. THOTTINGAL LATE VELU, RESIDING AT KOODALLUR AMSOM, OTTAPALAM TALUK, PALAKKAD. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 776 of 2009 ---------------------------------------- Dated this the 20th day of August, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S No. 28/1999 on the file of the Sub court, Ottappalam which arises from the judgment and decree in O.S. No. 67/1994 on the file of the Munsiff-Magistrate, Pattambi. The suit was filed for permanent injunction restraining the Executive Officer of the 1st defendant Panchyath from entering into the plaint schedule property and to stop further proceedings pursuant to Ext.A3 eviction notice dated 21.3.1994. The suit was dismissed by the trial court and confirmed in appeal by the lower appellate court. Hence the Second appeal. The parties hereinafter referred to as plaintiffs and defendants as arrayed in the suit. 2. The plaint averments in brief are as follows: The plaint schedule property is having an extent of 50 Cents in Sy No. 176/1A and 176/2 and the residential building therein. The plaint schedule property was purchased by the deceased 1st plaintiff from one Meenakshi Amma on 17.3.1971. While so in 1992 some proceedings were initiated against the plaintiffs by the Government alleging that the plaintiffs illegally possess an excess of 7 cents belonging to the Government. The Tahsildar, Ottapalam conducted an enquiry on 4.1.1994 and found that the plaintiffs are in illegal possession 7 cents of government land which is a public pond R.S.A.No. 776 of 2009 -2- Consequently the Tahsildar issued notice to the plaintiffs to surrender the disputed pond to the Government. The plaintiffs contended that they were possessing the disputed pond for more than 30 years and no right for the Government to claim it . So they filed the suit seeking injunction against the 1st defendant Panchayath from entering the plaint schedule property where the disputed pond is situated and to stop further proceedings pursuant to Ext.A3 eviction notice. 3. The defendants filed written statement stating that since the disputed pond is illegally possessed by the plaintiffs the 1st defendant Panchayath has every right to take steps to evict the plaintiffs. 4. Ext.B1 is the file of the proceedings initiated against the plaintiff and another Meenakshi by the Tahsildar under Land Conservancy Act. Ext.B1(b) is the order dated 4.2.1994 of the Tahsildar in the said proceedings finding that the 11 cents is a pond in Sy.No.176/2 is a public property and the plaintiffs and the said Meenakshi are trespassers and hence ordered eviction of the trespassers. In compliance of the order the said Meenakshi surrendered the portion of the pond i.e 4 cents,to the Government which has been in her possession. But the plaintiffs did not comply with the order, nor challenge the order before any Appellate Forum. In the above circumstances, the trial court held that the plaintiffs are not entitled to any reliefs as prayed for,and that the suit is not maintainable. I am of the view that when there is an order to the effect that the plaintiff has no title over the disputed pond that there is clear R.S.A.No. 776 of 2009 -3- evidence to the effect that the said pond is encroached by the plaintiffs, and therefore the plaintiffs are liable to surrender the same to the Government. I am also of the view that the trial court rightly dismissed the suit as not maintainable holding that the plaintiffs are not entitled to permanent injunction as prayed for. The maintainability question was re-agitated before the lower appellate court by the plaintiffs. The lower appellate court also on the basis of evidence held that the plaintiffs' property as per their title deed is comprised in Sy.No 176/1A, that the deceased 1st plaintiff has no title over any portion of the property comprised in Sy.No. 176/2 in which the disputed pond is comprised,and that he has also no case of having perfected title by adverse possession and limitation. The lower appellate court also agreed with the findings of the trial court and declined to grant permanent injunction in favour of the plaintiffs. After considering the contentions raised by the parties, I find that no grounds are made out by the plaintiffs/appellants to invoke this Court's jurisdiction under Section 100 of the C.P.C. The courts below entered the concurrent findings purely on the basis of facts evidence and circumstances. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and dismissed in limine. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 776 of 2009 ---------------------------- JUDGMENT 20th August, 2009