IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 RSA.No. 10 of 2008() -------------------- AS.191/2004 of ADDL. DISTRICT COURT-II, KOZHIKODE OS.544/1999 of ADDL.MUNSIFF COURT, KOZHIKODE-II .................... APPELLANT/APPELLANT IN LAC- PLFF.: ----------------------------------------------------- SREE ANNAPURNESWARI KSHETHRAPARIPALANA SAMITHI, MUTHALAKULAM, CALICUT, REPRESENTED BY ITS CONVENOR, SRI. INDRAJITH SINGH, S/O RANVEERSINGH, RESIDING AT HOUSE NO.17/1573, ARAYANSAMAJ MANDIR, RAM MOHAN ROAD, P.O.PUTHIYARA, CALICUT-4. BY ADV. SMT.SHAHNA KARTHIKEYAN SRI.V.ARUN VISWANATH RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOZHIKODE. 2. THE MUNICIPAL CORPORATION OF CALICUT, KOZHIKODE, REPRESENTED BY ITS SECRETARY, KOZHIKODE. GOVERNMENT PLEADER S.GOPINATH FOR R1 ADV.SRI.K.D.BABU,SC, KOZHIKODE CORPORATION FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.10 OF 2008 ----------------------------------- Dated this the 9th day of November, 2010 J U D G M E N T Concurrent decision rendered by the two courts below in a suit for injunction is challenged by the plaintiff in this appeal. Plaintiff is stated to be a Samithi, which is in management of a temple situated in plaint 'A' schedule property. Suit has been filed in a representative capacity by the Convener of a committee in management of the temple, seeking permission to do so, moving an application under Order I Rule 8 of the Code of Civil Procedure. 2. The gist of the plaintiff's case is that the temple, which is managed by policemen, having their barracks beside the temple, has a way described as 'B' schedule through the maidan under the control and management of the 2nd defendant Corporation. State has been impleaded as the 1st defendant in R.S.A.No.10/2008 2 the suit for reasons best known to the plaintiff alone. Though the suit was filed setting forth a case that the plaintiff has got exclusive possession and enjoyment over 'A' schedule described as having 59 cents, later, it was amended reducing the extent to 51 cents, canvassing a further plea that the plaintiff has prescribed title over such property by adverse possession. Previous claim as stated in the unamended plaint, was of an assertion of title over 'A' schedule, but, later, by way of amendment, as indicated above, it was a case of obtaining title by adverse possession. In a suit for injunction, the plea so canvassed, needless to point out, has not much value, as at the most, it can be taken into account only to consider whether the plaintiff, at the point of time of filing the suit, has settled possession over the property. Whatever that be, the claim raised by the plaintiff was challenged by the 2nd defendant Corporation contending that the temple is having enjoyment over only 13.5 cents of land, and it has no right over any excess area, leave alone over any portion of the maidan situated close by, through which, a right of way for ingress and egress to the temple was claimed in the suit. On the materials placed, the trial court R.S.A.No.10/2008 3 found that the suit claim of the plaintiff was not at all sustainable, and in that view of the matter, suit was dismissed. The lower appellate court, after re-appreciating the materials produced, concurring with the conclusion formed by the trial court, dismissed the appeal. 3. I heard the counsel on both sides. From the submissions made, it appears that removal of some pillars put up on the southern side of the temple, at the instance of the Corporation, had led to the filing of the present suit against the State and the Corporation for a decree of injunction. The only material worth mentioning that was placed by the plaintiff to substantiate its possession claimed on the basis of title was copy of a resettlement land register exhibited as Ext.A1. As rightly held by the courts below, Ext.A1 in no way assisted the plaintiff to show its right or possession over 'A' schedule property described in the plaint. The other documents tendered by the plaintiff, Exts.A2 to A7, it is seen, are not in any way helpful to enable the plaintiff to get the discretionary relief canvassed in the suit. A report and sketch were prepared by the advocate commissioner. R.S.A.No.10/2008 4 He identified the property under Ext.C2 plan, over which, the plaintiff had some objections. But before me, the identification made under Ext.C2 plan was relied to canvass for the relief of injunction. Report and plan prepared by a commissioner on an incomplete data to locate an immovable property, is hardly sufficient to empower the court to the discretionary relief of injunction in favour of one party and as against another. Further more, even according to the plaintiff, the report and plan of the commissioner in view of the serious objections levelled against them, cannot be acted upon. When such be the case, the concurrent decision rendered by the courts below that the plaintiff is not entitled to the discretionary relief of injunction, does not at all warrant any interference. There is no question of law, leave alone substantial question of law in the appeal, and hence, it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.No.10/2008 5