IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 RSA.No. 1313 of 2010() ---------------------- AS.16/2009 of SUB COURT, PERUMBAVOOR OS.240/2004 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/ APPELLANT/ PLAINTIFF: ----------------------------- M.N. PRABHAKARAN NAIR, S/O. SANKARAN NAIR, RETIRED ENGINEER, P.W.D, RESIDING IN MOOTHEDATH HOUSE, KODINJOOR KARA, PUTHENCRUZ VILLAGE, AMBALAMUGAL.P.O, KUNNATHUNAD TALUK. PIN-682302 BY ADV. SRI.P.KESAVAN NAIR SRI.K.G.CLEETUS RESPONDENT(S): RESPONDENT/DEFENDANT: --------------------------------------------------- P.K. MANOHARAN, S/O. KRISHNAN, RESIDING IN PUTHUVANAPRAMBIL HOUSE, KODINJOOR KARA, PUTHENCRUZ VILLAGE, KUNNATHUNAD TALUK, AMBALAMUGAL.P.O. PIN-682302 ADV. SRI.A.T.ANILKUMAR FOR R1 SMT.V.SHYLAJA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1313 OF 2010 --------------------------------------------- Dated 29th March, 2011 JUDGMENT Plaintiff in O.S.240/2004 on the file of Munsiff Court, Perumbavoor is the appellant. Defendant is the respondent. Appellant instituted the suit seeking a decree for permanent prohibitory injunction, mandatory injunction and damages. Appellant would contend that he is the absolute owner in possession of more than two acres of property in R.S.Nos.188 and 189 of Puthencruz village and is residing there and in order of start a phenol project, State of Kerala acquired land from private persons and handed over the properties to Hindustan Organic Chemicals (HOC) in 1982 and certain lands RSA 1313/10 2 on the northern side of the property of the appellant was also acquired. At that time the only means of ingress and egress was through the Panchayath road known as Ambalamugal- Kodinjoor road. When HOC tried to close down that road appellant instituted O.S.241/1984 for a decree for permanent prohibitory injunction from closing the road. In that case HOC filed a counter undertaking that they are providing an alternative road to the appellant. Appellant had made a representation before the Government to include his property also in the acquisition proceedings. The District Collector intimated the appellant that HOC has already provided a road to the property of the appellant and HOC does not want the rest of the property owned by the appellant. In the light of the alternative way provided by the company, the former RSA 1313/10 3 Ambalamugal-Kodinjoor road was taken away by HOC along with other acquired property. It is contended that on the side of that road respondent has got a property and he has encroached upon a portion of the road and thereby reduced the width of the road and he has no right to do so and therefore, appellant is entitled to get a decree for mandatory injunction to vacate encroached portion and restore the plaint schedule property to its original position and also permanent prohibitory injunction from further trespass and also damages of Rs.600/- per day as loss was caused to the appellant. 2. Respondent resisted the suit contending that plaint schedule road is a public road vested in Vadavucode-Puthencruz Grama Panchayath and appellant has no personal RSA 1313/10 4 right in the plaint schedule property and when the property was acquired by HOC in 1982, a way was provided through the northern side of the property of the respondent, who sustained loss of passage and that road is being maintained by the Grama Panchayath and respondent has not reduced the width of the road and has not encroached upon any portion of the road and therefore, appellant is not entitled to the decree sought for. 3. Learned Munsiff appointed a commission at the instance of the appellant and Commissioner submitted Exts.C1 report and C1(a) plan. Appellant filed I.A.3142/2007 to set aside the report and plan contending that property was not identified with reference to old survey plan and the title deed of the respondent and therefore, identification of the RSA 1313/10 5 property is not correct and therefore, report and plan are to be set aside. Learned Munsiff dismissed the petition. Appellant filed W.P.C.10012/2008 before this court. This court set aside the order and directed learned Munsiff to consider that question granting liberty to the appellant to examine the Commissioner and directed the Commissioner to identify the property with reference to old survey plan, if it is found necessary on recording the evidence. Learned Munsiff considered that application and along with disposal of the suit, dismissed the application. Learned Munsiff on the evidence found that there is no material to fix the actual width of the road constructed by HOC and therefore, held that appellant did not establish that any portion of the road RSA 1313/10 6 encroached upon by the respondent and therefore, dismissed the suit. Appellant challenged the judgment before Sub court, Perumbavoor in A.S.16/2009. Learned Sub Judge on re-appreciation of the evidence dismissed appeal. Second appeal is filed challenging the judgment. 4. Learned counsel appearing for the appellant was heard. 5. Learned counsel argued that this court by order in W.P.C.10012/2008 directed the learned Munsiff to consider the objection raised by the appellant with regard to the non identification of the property with reference to old survey plan and the old survey plan was subsequently produced by the appellant before the trial court as Ext.A11 and appellant had raised serious objection to the report and its RSA 1313/10 7 acceptance even before the first appellate court and specific ground was raised in the appeal memorandum that trial court should not have relied on Exts.C1 and C1(a) and should have found that the properties were not properly measured and fixed and in spite of the objection, the first appellate court did not consider the matter at all. Learned counsel argued that being the final fact finding court, first appellate court is bound to consider the same and as it is not considered there is no proper disposal of the appeal and when the property now in the possession of the respondent was not identified with reference to his title deed and as he is in possession of the property, more what is available under the title deed, courts below should have found that that portion was RSA 1313/10 8 encroached upon for the road. Learned counsel also argued that as a road was formed by HOC , an organization under the Central Government, presumption under Section 114(e) of Indian Evidence Act should have been drawn that the road constructed was having uniform width and in such circumstances, a decree should have been granted. 6. Appellant has no right over the road except a right to use the road. Even according to the appellant the road was subsequently constructed by HOC after acquisition of the properties, including the then existing Ambalamugal-Kodinjoor road. Appellant admittedly instituted O.S.241/1984 before Munsiff court, Ernakulam seeking a decree for injunction restraining HOC from closing the Ambalamugal-Kodinjoor road. It is the case of RSA 1313/10 9 the appellant himself that Ext.A6 counter was filed in that case stating that HOC would provide an alternative road of equal character fit for up and down use of heavy vehicles and street light systems and Ext.A8 counter affidavit was filed therein. Courts below found that Ext.A8 copy of counter affidavit establish that a plan was produced showing the nature of the road agreed to be constructed. That plan was not produced before the court. Even according to the appellant the road was constructed by HOC. If that be so, there should necessarily be materials before the HOC to show what was the width of the road constructed. Appellant did not produce any of these materials to find out what was the width of the road constructed by HOC. Unless there is material to prove the width of the road RSA 1313/10 10 constructed, it cannot be found that respondent encroached upon any portion of the road as canvassed by the learned counsel appearing for the appellant. Even if, it is found that respondent is in possession of property having more extent that covered by the title deed, such possession will not automatically lead to a conclusion that, any portion of the road was encroached upon by the appellant. Unless it is established that the road was having a width of more than what is now available, there cannot be any basis for the allegation of encroachment, even there is absolutely no material to establish what was the width of the road constructed by HOC. Even if case is remanded to the trial court as sought for by the learned counsel appearing for the appellant, to identify the property belonging RSA 1313/10 11 to the respondent under his title deed, it will serve no purpose in the absence of materials to show the actual width of the road constructed by HOC. In the absence of any such evidence it is not in the interest of justice to protract the case further. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.