IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 SA.No. 44 of 2000(E) ------------------------- OS.185/1992 of MUNSIFF COURT,CHENGANNUR AS.69/1995 of ADDL.DISTRICT COURT-I,MAVELIKKARA .................... APPELLANT(S):APPELLANTS/SECOND AND 3RD DEFENDANTS ------------------------------------------------------------------------ 1. IKKA, PUTHENMADATHIL KANDATHIL, MANAGALAM MURI, CHENGANNUR VILLAGE. 2. SARAMMA, PUTHENMADATHIL KANDATHIL, MANAGALAM MURI, CHENGANNUR VILLAGE. BY ADVS. SRI.P.S.RAMESH KUMAR SMT.ANNAMMA ABRAHAM RESPONDENT(S):RESPONDENTS/PLAINTIFFS AND DEFENDANTS 1, 4 AND 5 ---------------------------------------------------------------------------- * 1. P.M.JACOB, PULLANETH VEETTIL, MANAGALAM MURI, CHENGANNUR VILLAGE. (DIED) 2. C.A.VARGHESE, PADINJARETHIL VEETTIL, MANAGALAM MURI, CHENGANNUR VILLAGE. 3. P.V.MATHAI, PADINJARETHIL VEETTIL, MANAGALAM MURI, CHENGANNUR VILLAGE. * 4. M.V.VARGHESE, KUTTIKKATTU VEETTIL, MANAGALAM MURI, CHENGANNUR VILLAGE.(DIED. DELETED) * 5. T.G.GEORGE, THAZHAPPALLIL VEETTIL,VAZHARMANGALAM MURI, CHENGANNUR VILLAGE. (DIED. DELETED) 6. CHENGANNUR MUNCIPALITY, REPRESENTED BY MUNCIPAL COMMISSIONER, CHENGANNUR MUNCIPALITY, svs ............2/-... ...2... S.A. NO.44/2000 7. P.I.JOSEPH, PLUMBER, ABU DHABI AVIATION, P.O. BOX NO. 2723, ABU DHABI, U.A.E. 8. P.I.MATHEW, ELECTRICIAN, ABU DHABI AVIATION, P.O. BOX NO.2723, ABU DHABI, U.A.E. * DEATH OF R1 & R5 IS RECORDED AS PER ORDER DATED 03/08/2011 IN MEMO DATED 06/07/2004 * THE NAME OF THE 4TH RESPONDENT IS DELETED FROM THE PARTY ARRAY, AT THE RISK OF THE APPELLANTS VIDE ORDER DATED 08/10/2004 IN I.A. NO.1999/2004. * THE NAME OF THE 5TH RESPONDENT IS DELETED FROM THE PARTY ARRAY, AT THE RISK OF THE APPELLANTS VIDE ORDER DATED 03/08/2011 IN I.A. NO.2134/2004. R2 TO R4 BY ADVS. SRI.P.R.VENKETESH SRI.C.MURALIKRISHNAN (PAYYANUR) R6 BY ADVS. SRI.V.M.KURIAN SRI.A.V.THOMAS SRI.MATHEW B. KURIAN SRI.K.T.THOMAS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P. BHAVADASAN, J. ........................................... S.A.NO.44 OF 2000 ............................................. Dated this the 3rd day of August, 2011. JUDGMENT Second and third defendants in O.S.No.185/1992 before the Munsiff Court, Chengannur are the appellants. They suffered a decree at the hands of the trial court, which was confirmed in appeal. 2. According to the plaintiffs, defendants who, owned and possessed properties on the southern side of the pathway, have encroached into a portion of the pathway and constructed a compound wall. It is stated that the pathway is vested in the municipality and the plaintiffs had requested the municipality to take necessary action. Since there was no effort from the first defendant municipality to remove the encroachment, the suit has been filed. 3. The first defendant municipality admitted that the road is vested in the municipality and they are maintaining the road. They admitted that a complaint had been received regarding the illegal construction by some of the defendants and also that there is an allegation that the defendants have S.A.NO.44 OF 2000 : 2 : trespassed into a portion of the municipal road. It is further pointed out that the municipality did not take any action due to the pendency of the suit. 4. Defendants 2 and 3 disputed the very existence of the way. They also challenged the locus standi of the plaintiff to institute the suit. According to them, there was only a ridge and that was being used as a way. Subsequently, the paddy fields have been converted into garden lands and improvements have been effected. Then, the bund was being used as the road. They disputed that they have encroached into the municipal way as alleged in the plaint and pointed out that the plaintiffs are not entitled to any relief. 5. On the above pleadings, issues were raised. Evidence consists of testimony of PW1 and documents marked as Exts.A1 to A9. On the defendants' side DW1and DW2 were examined and Exts.B1 to B3 were marked. On an evaluation of the evidence in the case, the trial court found that construction of the compound wall was illegal and as it is contrary to the provisions of the Municipality S.A.NO.44 OF 2000 : 3 : Act, it has to be demolished. Accordingly the suit was dismissed. Defendants 2 and 3 carried the matter in Appeal as A.S.No.69/1995. At their instance, a commission was taken out at the appellate stage and commissioner's report and plan were marked as Exts.C1 and C1(a). The lower appellate court on the basis of the Commissioner's report and and other materials found that the trial court was justified in its conclusion and confirmed the decree. 6.In the second appeal notice is issued on the following questions of law: “A. In a suit for mandatory injunction to dismantle an alleged unauthorised construction encroaching upon a pathway and if it disputed if it not necessary and mandatory to appoint a commission to prepare a plan and report to locate the pathway and to ascertain the extent of the encroachment and whether the trial court is justified in decreeing the suit without appointing a commission? B. Whether the trial court is justified in relying on the exparte commissioner's report, sketchand Mahazar in O.S.123/1992 without examining the commissioner in anyone of the suits? C. After appointing an advocate commissioner and surveyor to fix, locate, measure and prepare a plan of the pathway S.A.NO.44 OF 2000 : 4 : and the report and plan Exhibit C1 and C1 (a) is made available which supports the case of defendants 2 and 3 and which was strongly challenged and sought to set aside by the plaintiffs by filing a separate petition, whether the lower appellate court is justified as dismissing the appeal without remanding, the case to the trial court? D. Admittedly the narrow ridge (1 metre width) got widened by voluntary surrender of one metre each on either side by the respective property owners and the construction made by the defendants 2 and 3 separating their property from the widened portion not above 1 foot earth level, whether the courts below are justified in observing that the said construction requires permit and license from the Municipality. E. In spite of the specific and categoric pleadings in Paras 10 and 15 of the written statement of defendants 2 and 3, whether the courts below are justified in finding that the defendants 2 and 3 did not have a case that there is encroachment on the western side of the original 1 metre pathway and whether the non inclusion of the properties on the northern side of the admitted 1 metre pathway is fatal to the suit or not?” 7. The learned counsel appearing for the appellants pointed out that both the courts below have erred in law S.A.NO.44 OF 2000 : 5 : and facts in decreeing the suit. Even assuming that there is a municipal way as alleged in the plaint as established by the plaintiffs, demolition of the compound wall could not have been ordered. It could have been done only if it was found that there was encroachment by the defendants into the municipal way at the time when the compound wall was put up. These aspects have not been taken into consideration by the trial court and therefore the decree is unsustainable in law. 8. The learned counsel appearing for the respondents on the other hand pointed out that both the courts below have considered the different aspects in arriving at a conclusion and it is based on evaluation of the evidence in the case. Before the appellate court there was Commissioner's report and plan and both the courts have considered whether there was any encroachment into the municipal way. It was found by both the courts that there was encroachment by the defendants and construction of the compound wall is without following the procedure contemplated by law. The learned counsel pointed out that S.A.NO.44 OF 2000 : 6 : no substantial questions of law arise for consideration in the second appeal. 9. It appears that contesting defendants disputed the very existence of the way itself. When Exts.B1 and B2 produced on behalf of the first defendant, it was found that there was a municipal road having a length of 165 metres and a width of 3 metres as alleged in the plaint. So existence of the way is established. The first defendant in the suit also has produced certain documents to show that the road is maintained by the municipality. 10. Both the courts below have found that construction of the compound wall was without permission from the municipality. Even though contesting defendants have a case that the compound wall was put up as early as in 1980 it is open to serious doubt. The plaintiffs have specifically alleged that the compound wall was put up in 1992. The contention of the defendants is that the so called surrender of one metre on either side was made in 1980. So the compound wall was put up in 1980. 11. Though the arguments may look attractive, it has S.A.NO.44 OF 2000 : 7 : fall on a short ground as if the defendants had a case that the compound wall was put up long ago they ought to have requested the Commissioner to assess the age of the compound wall. They were aware of the fact that the plaintiffs have specifically alleged that the compound wall was put in 1992. They were also aware of the stand of the municipality about the encroachment and contemplated action against the defendants. In the absence of any such evidence, the conclusion of the courts below that the compound wall put up contrary to the provisions of the Municipality Act and without permission of the municipality have to stand. 12. Going through the materials as far as encroachment is concerned, the lower appellate court after getting the Commissioner's report has considered the matter in detail. It is significant to note that the property on the northern side is at a higher level and it is also noted by the lower appellate court that the contesting defendants have no case that the owners of the property on the northern side of the pathway had encroached into the pathway. S.A.NO.44 OF 2000 : 8 : 13. It is true that the defendants have a case that owners of the property on the northern side of the way might not have surrendered one metre as claimed by the plaintiffs or there might have some encroachment on the northern side. 14. It is contended that without ascertaining the original portion of the way alleged to have surrendered in either side, the decree should not have been granted. 15. These were the specific contentions that were considered by the lower appellate court and for cogent and convincing reasons and also based on the Commissioner's report arrived at a finding that the encroachment can only be from the southern side. That finding on fact is based on the appreciation of the evidence in the case. The trial court even without a plea was inclined to take the same view. 16. In the light of the fact that appellants are unable to show that the conclusion arrived at by the lower courts either perverse or unwarranted, no interference is called for under Section 100 of the Civil Procedure Code. However, it is made clear that both the municipality as well as the S.A.NO.44 OF 2000 : 9 : plaintiffs can only have a right to claim 3 metres wide and 165 metres long pathway called as the Aassariparambil road. The result is that no substantial questions of law arise in the appeal. Accordingly the appeal is dismissed. Sd/= P. BHAVADASAN, JUDGE. /true copy/ P.S. to Judge cl S.A.NO.44 OF 2000 : 10 : P. BHAVADASAN, J. . .......................................... S.A.NO.44 OF 2000 ............................................. 3rd day of August, 2011. JUDGMENT