IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 RSA.No. 836 of 2011() --------------------- AS.90/2002 of SUB COURT, PAYYANNUR OS.167/2000 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT/2ND SUPPLEMENTAL APPELLANT/PLAINTIFF ------------------------------------------------------------------------------------- M.V.GOPALAKRISHNAN, AGED 66 YEARS, S/O.LATE M.V.KALLIANI, KARIVELLUR AMSOM DESOM, P.O.KARIVELLUR, KANNUR DISTRICT. (SINCE ORIGINAL APPELLANT/PLAINTIFF M.V.KALLIANI DIED DURING THE PENDENCY OF THE 1ST APPEAL AND THIS APPELLANT IMPLEADED AS SUPPLEMENTAL 2ND APPELLANT ) BY ADV. SRI.M.SASINDRAN SRI.A.ARUNKUMAR RESPONDENT(S): RESPONDENTS/DEFENDANTS --------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KANNUR-670001. 2. THE ASSISTANT ENGINEER, PWD (NH) SECTION, PAYYANNUR-670 307. 3. THE ASSISTANT EXECUTIVE ENGINEER, PWD(NH) SUB DIVISION, KANNUR-670001. 4. THE TAHSILDAR, TALIPARAMBA, KANNUR- 670141. 5. THE VILLAGE OFFICER, KARIVELLUR, KANNUR DISTRICT-670521. BY GOVERNMENT PLEADER SRI.ABDUL SHUKUR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 836 OF 2011 =========================== Dated this the 17th day of November,2011 JUDGMENT The legal heir of the deceased plaintiff who was impleaded on the death of the plaintiff before the first appellate court is challenging the concurrent decree passed by the courts below. Plaintiff instituted O.S.167/2000 before Munsiff's Court, Payyannur seeking a decree for permanent prohibitory injunction restraining the respondents, the State, not to demolish the compound wall of the plaint schedule property contending that the compound wall was constructed after acquisition of a portion for the National Highway, within the property excluding the property acquired. It was contended that stones were laid by the authorities after acquisition of the property and LAR 28/91 was pending before Sub Court, RSA 836/2011 2 Payyannur for enhanced compensation and the plaintiff constructed the boundary wall only within the property, excluding the property acquired. When the respondents alleged that the compound wall was constructed encroaching a portion of the acquired property and threatened demolition, appellant filed O.P.15231/1997 before this court. The said Writ Petition was disposed directing the appellant to approach the civil court, in case dispute on measurement was not settled by the District Collector. Though appellant approached the District Collector and he referred the matter to the Revenue Divisional Officer, Thalassery, the Revenue Divisional Officer found on remeasuring the property and refixation of the boundary that the compound wall of the plaintiff was projecting towards the National Highway. It is contended that the compound wall was constructed only within the property, excluding the property acquired, and therefore respondents are not entitled to demolish the boundary wall as RSA 836/2011 3 warned in the notice. 2. Respondents resisted the suit contending that plaint schedule property is not identifiable and 0.61 hectares in R.S.No.11/2A of Karivelloor village belonging to the plaintiff was acquired and adequate compensation was paid and after acquisition plaintiff constructed a compound wall without the permission of the village authorities or the National Highway authorities encroaching upon a portion of the acquired plot and he has no right to do so and therefore plaintiff is not entitled to the decree sought for. 3. Learned Munsiff on the evidence dismissed the suit finding that the compound wall was constructed encroaching upon a portion of the acquired property. Plaintiff challenged the decree before Sub Court, Payyannur in A.S.90/2002. As appellant died during the pendency of the first appeal, his son, the appellant herein was impleaded as additional appellant. Learned Sub Judge on reappreciation of the evidence confirmed the RSA 836/2011 4 findings of the learned Munsiff and dismissed the appeal. 4. Learned counsel appearing for the appellant was heard. 5. The argument of the learned counsel is that the compound wall was constructed by the plaintiff only within his property excluding the property acquired by the State and therefore the courts below should have granted a decree as sought for. Making available copies of photographs showing the stone allegedly laid at the time of acquisition to strengthen the argument it was submitted that the compound wall was constructed within the property of the plaintiff. Learned counsel submitted that even according to respondents, the encroachment is only negligible portion and in such circumstances a decree for injunction should have been granted. 6. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 7. Suit is for permanent prohibitory RSA 836/2011 5 injunction contending that respondents are not entitled to demolish the compound wall constructed by the plaintiff within her property. It is to be born in mind that plaintiff had originally approached this court when the respondents on the allegation that the compound wall was constructed encroaching a portion of the acquired property, directed the plaintiff to demolish the compound wall, raising a contention that there was no encroachment. This court directed the plaintiff to approach the District Collector and if not satisfied, liberty was granted to approach the civil court. It is thereafter the suit was filed. In such circumstances plaintiff was aware that the dispute is with regard to the question whether the compound wall was constructed within her property or encroaching upon a portion of the property acquired for the National Highway. Hence it was incumbent upon the plaintiff to identify the plaint schedule property and demarcate the property which was acquired, for the National Highway and RSA 836/2011 6 establish that the compound wall was constructed within the property excluding the acquired property. Plaintiff did not take out a commission to identify the property and establish that the compound wall was constructed within her property. In such circumstances, finding of the courts below that plaintiff is not entitled to the decree for injunction is perfectly correct. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006