IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 RSA.No. 611 of 2009() --------------------- AS.29/2005 of SUB COURT, HOSDURG OS.316/1999 of MUNSIFF COURT, HOSDURG .................... APPELLANT/APPELLANT NO.28/DEFENDANT NO.28: --------------------------------------- KODOM-BELUR GRAMA PANCHAYATH, REP. BY ITS SECRETARY, OFFICE AT ATTENGANAM, BELUR VILLAGE, P.O.ATTENGANAM, HOSDURG TALUK. BY SENIOR ADV. SRI. S.V.BALAKRISHNA IYER SENIOR ADV. SHRI K.JAYAKUMAR , ADVS. SHRI P.B.KRISHNAN, R.SURAJ KUMAR, N.AJITH & NEELAKANDAN P.M. RESPONDENT(S): APPELLANTS 1 TO 27/PLAINTIFF/DEFENDANTS 1 TO 27: ---------------------------------------------- 1. SANTY MATHEW, S/O.JOSEPH MATHEW, SHOP KEEPER, RESIDING AT VELLUKUNNEL HOUSE, PADIMARUTHU, KODOTH VILLAGE, HOSDURG TALUK, P.O.PADIMARUTHU. 2. THAMBAN NAIR, RESIDING AT ATTENGANAM IN BELUR VILLAGE. 3. KUNHIKANNAN, RESIDING AT VELLARIKUNDU, P.O.PADIMARUTHU, KODOTH VILLAGE. 4. A.C.MATHEW, S/O.CHERIYAN, RESIDING AT UDAYAPURAM, KODOM VILLAGE, P.O.KODOM. 5. PALATHINADI PHILIP, RESIDING AT ARIPPA NEER, KODOTH VILLAGE, P.O.PADIMARUTHU. 6. VETTIKATTIL JOY, S/O.JOSEPH, RESIDING AT ARIPPA NEER, KODOTH VILLAGE, P.O.PADIMARUTHU. RSA NO.611/2009 2 7. MANIKKAN, S/O.CHERIPADOYAM, COOLI, RESIDING AT ARIPPA NEER, KODOTH VILLAGE, P.O.PADIMARUTHU. 8. SHAJI MAROTTUKUZHIYIL, S/O.ONAN, RESIDING AT ARIPPA NEER, KODOTH VILLAGE, P.O.PADIMARUTHU. 9. MANIKKAN, S/O.VEERAN, RESIDING AT DO. DO. DO. 10. GOPALAN, S/O.PULAYAN, RESIDING AT DO. DO. DO. 11. AVARACHAN @ ABRAHAM MANJILODI, RESIDING AT NARER, KODOTH VILLAGE DO. P.O. 12. KARYA PLAKKAL PAPU, RESIDING AT ARIPPA NEER, KODOTH VILLAGE, DO. DO. 13. PAMBAKAL SHAJU, S/O.JOSEPH MATHEW, RESIDING AT PADIMARUTHU, KODOTH VILLAGE, P.O.PADIMARUTHU. 14. PAMBAKAL SANU, S/O.PAMBAKAL JOSEPH, IN DO. DO. 15. JOHNY KADAMURI, S/O.KOCH, RESIDING AT ARIPPA NEER, DO. VOLLAGE, DO. P.O. 16. ARAKKAL XAVIER, S/O.PAUL, RESIDING AT DO. DO. 17. KRISHNAN, S/O.KAIKOLAN, RESIDING AT DO. DO. DO. 18. CHETTIKKA THOTTATHIL MANOJ, S/O.JOSEPH, RESIDING AT DO. DO. DO. 19. NEELIMALA CHANDRAN, S/O.KANNAN, RESIDING AT DO. DO. DO. 20. NEELIMALA VELUTHAN, S/O.CHANA, RESIDING AT DO. DO. DO. 21. PALLIKANNAN, S/O.VEERAN, RESIDING IN DO. DO. DO. 22. VELUTHA KANNAN, S/O.AMBADI, RESIDING AT DO. DO. RSA NO.611/2009 3 23. NARAYANAN, S/O.VELUTHA KANNAN, RESIDING AT DO. DO. DO. 24. AUSEPH ETTEKKAL, S/O.AUSEPH, RESIDING AT DO. DO. DO. 25. CHERUMANATH KUNHUMON @ PHILIP, RESIDING AT DO. DO. DO. 26. KURUMBAN, S/O.CHERUPPADI, RESIDING AT DO. DO. DO. 27. ADUKUZHIYIL RAJU, S/O.ABRAHAM, RESIDING AT DO. DO. DO. 28. KADAMURI KOCH, RESIDING AT DO. DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.611 of 2009 -------------------------------------- Dated this the 17th day of February, 2010. JUDGMENT Defendant No.28, the local authority is the appellant before me urging by way of substantial questions of law whether courts below erred in holding in favour of maintainability of the suit in the absence of statutory notice under Section 249 of the Kerala Panchayat Raj Act, 1994 (for short, “the Act”) and whether courts below erred in granting mandatory injunction sought for by respondent No.1/plaintiff when title is in dispute and property has not been properly identified and there is no prayer for recovery of possession. 2. Respondent No.1/plaintiff filed a suit against respondent Nos.2 to 28/defendant Nos.1 to 27 for decree for prohibitory/mandatory injunction and recovery of damages. He claimed that plaint A schedule which is one acre in Re-survey No.59/4 of Kodoth Village belonged to him as per sale deed No.1655 of 1993 (Ext.A1). According to him, Kanhangad-Panathoor road lies on the north of plaint A schedule. A road which branched from that road went along the east of plaint A schedule to Aripaneer. Earlier that road went along the side of property of respondent Nos.2, 3 and 14 (defendant Nos.1, 2 and 13) and later its course was changed to help respondent Nos.2, 3 and 14. On 16.6.1999 respondent Nos.2 to 28 widened the pathway encroaching into plaint A schedule upto a width of two metres and length of 45 to 50 metres cutting the trees RSA No.611/2009 2 situated in that property. Hence the suit. Respondent Nos. 2 to 28 contended that respondent Nos.2 to 4/defendant Nos.1 to 3 are the president, vice- president and chairman of the standing committee of appellant/defendant No.28 and that it was decided by the local body (appellant) to improve the road in question and entrust the work to a beneficiary committee headed by respondent Nos.6 and 16 (defendant Nos.5 and 15). Road on the side of plaint A schedule had a width of eight metres. It is contended that there was no encroachment into any portion of plaint A schedule property. In the light of the contentions raised by respondent Nos.2 to 28/defendant Nos.1 to 27, appellant was impleaded as additional defendant No.28. Appellant contended that suit is not maintainable since there is want of notice under Section 249 of the Act. It is the contention of appellant that Panchayat resolved to improve the road which already had a width of eight metres. It denied the allegation of encroachment into plaint A schedule. Trial court found that there was encroachment into the property of respondent No.1 and accordingly granted decree for mandatory injunction to restore the encroached portion into its original position, prohibitory injunction against further trespass and recovery of damages. That decree was confirmed by the first appellate court and hence the Second Appeal with the substantial questions of law urged above. Though it is contended in the memorandum of appeal that there is no notice issued to the appellant as contemplated under Section 249 of the Act and hence the suit is not maintainable, in all fairness learned Senior Advocate has contended that before impleading appellant as additional defendant No.28 during the pendency of the suit Ext.A4, notice dated RSA No.611/2009 3 26.11.2001 was issued to the appellant which was served on the appellant as seen from Ext.A5, acknowledgment card on 28.11.2001. It is not the case of appellant that it is before the expiry of two months from the date of service of Ext.A4, notice that it was impleaded in the suit as additional defendant No.28 so that there is any violation of Section 249 of the Act. Hence that contention does not survive for decision. 3. So far the alleged encroachment is concerned, respondent No.1 relied on Ext.A1, assignment deed. and Exts.A2 and A3, copy of decree and judgment in O.S.No.125 of 1998 filed by one Vettikkattil Mary against the appellant and others for injunction against trespass into her property for widening the road. Ext.A9 is the certified copy of plan in that case. A decree for prohibitory injunction was granted in that case. On a perusal of Ext.A3 it is seen that plaintiff therein had claimed possession of 25 cents towards north-western corner of Re-survey No.57/2 (suit property is comprised in re-survey No.59/4). She alleged that the existing road was blocked and a new road was formed. She also alleged that there was no road along her property comprised in re-survey No.56/2. Contention raised by the appellant as defendant in O.S.No.125 of 1998 was that disputed road is passing through Re-survey No.57/2 and not 59/4 in which the suit property is situated. It was argued in that case that the way was changed from Re-survey No.57/2 to Re-survey No.59/4 (A schedule property). In that case court found that there is only a footpath along the property in re- survey No.57/2 and accordingly the decree for prohibitory injunction was granted. It is the very same road appellant is referring to as on the eastern side of A RSA No.611/2009 4 schedule property having width of eight metres. Ext.B1 is the register produced by the appellant to show width of the road at the disputed portion. But Ext.B1 was found to be not sufficient to prove that it concerned the disputed portion of the road on the eastern side of suit property. Advocate commissioner has reported in Ext.C1 that even after widening (allegedly by respondent Nos.2 to 28 and appellant) the width of the road at the disputed portion (on the eastern side of the suit property) is only 7.25 metres as against eight metres referred to in Ext.B1. From this circumstance and the oral evidence courts below found that the road having width of eight metres referred to in Ext.B1 cannot be the disputed road along eastern portion of the property of respondent No.1/plaintiff. There is oral evidence indicating that encroaching into the suit property the disputed portion was widened. DW1(respondent No.16/defendant No.15) stated in chief examination that no portion of plaint A schedule was taken for the road. In Exts.C1 and C2 show that fresh work was done on the road adjoining the suit property. In Exts.C3 and C4 commissioner reported that portion of plaint A schedule was converted as road and the portion encroached upon according to the commissioner is 2.630 cents. Thus fact of trespass into the suit property and conversion of that portion into road is in evidence as found by the courts below and that involved no substantial question of law. 4. Now the question urged for decision is whether in the absence of proof of title and prayer for recovery of possession courts below were justified in granting mandatory injunction. Recovery of possession is needed only when appellant and/or respondent Nos.2 to 28 are in settled possession of the RSA No.611/2009 5 property. On the other hand if some mischief was done on a portion of the property and making use of that portion road was widened that cannot amount to appellant or respondent Nos.2 to 28 being in possession of the disputed portion. 'Possession' implies the authority to exclude any person including the real owner. I am satisfied that on the materials on record appellant or respondent Nos.2 to 28 have no such possession of the disputed portion particularly when they denied that there was any such encroachment in the suit property. As such a suit for mandatory injunction for restoration of the property to its original state is sufficient. So far as the title of respondent No.1 is concerned, that was proved by Ext.A1 and that was not under serious challenge. As such no substantial questions of law as urged above do arise for decision. In the result, Second Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks