IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 RSA.No. 1036 of 2009() ---------------------- AS.38/2007 of VI ADDL.DISTRICT COURT, ERNAKULAM O.S.No.1417 of 2004 of PRINCIPAL MUNSIFF, ERNAKULAM .................... APPELLANT/APPELLANT/PLAINTIFF: --------------------------------------- EALIYAMMA THOMAS,W/O.THOMAS,76 YEARS, RETD. SCHOOL TEACHER,EDAMPADATHU HOUSE, THURUTHIKKARA P.O.,PAINGARAPPILLY,MULANTHURUTHY VILLAGE,KANAYANNUR TALUK,ERNAKULAM DISTRICT. BY ADV. SRI.ASOK M.CHERIAN SRI.SANTHOSH G. PRABHU SRI.S.KANNAN RESPONDENTS/RESPONDENTS/ DEFENDANTS: ---------------------------- 1. M.U.KRISHNAN, AGED ABOUT 69 YEARS, S/O.UNNIYATHY, MOOLIKKATTIL HOUSE, THURUTHIKKARA, PAINGARAPPILLY P.O., MULANTHURUTHY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. K.K.APPU, AGED ABOUT 64 YEARS, KAKKALAN PARAMBIL HOUSE, THURUTHIKKARA, PAINGARAPPILLY P.O., MULANTHURUTHY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 3. JAYAN, S/O.APPU, AGED ABOUT 34, KAKKALAN MATTAL HOUE, THURUTHIKKARA, PAINGARAPILLY P.O., MULANTHURUTHY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 4. P.N.PURUSHOTHAMAN, S/O.NARAYANAN, AGED ABOUT 59 YEARS, PYNGALIL HOUSE, THURUTHIKKARA, PAINGARAPPILLY P.O., MULANTHURUTHY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 5. K.M.SOMAN, S/O.MADHAVAN, AGED ABOUT 39 YEARS, KUZHIKANDATHIL HOUSE, THURUTHIKKARA, PAINGARAPPILLY P.O., MULANTHURUTHY VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.1036 of 2009F --------------------------------------- Dated this 23rd day of November, 2009 JUDGMENT The second appeal arises from judgment of learned 6th Additional District Judge, Ernakulam in A.S.No.38 of 2007 confirming judgment and decree of learned Principal Munsiff, Ernakulam in O.S.No.1417 of 2004. Appellant sued the respondent for a decree for prohibitory injunction and recovery of damages. Her case is that the suit property which was originally a paddy field belonged to her and she reclaimed it about 2½ years before institution of the suit. Respondents have paddy fields towards the north and east of the suit property. While so, respondents filed M.C.No.56 of 2002 against her in the Court of Sub Divisional Magistrate, Fort Kochi who, as per order dated 23-07-2004 directed appellant to provide space having width of 1m on the west, north and east of the suit property to discharge rain water. After complying with that order, she constructed compound wall on all sides of the suit property which the respondents allegedly demolished on 16- 08-2004 and 21-09-2004 causing loss of Rs.90,000/- to her. Hence the suit. Respondents contended that appellant had reclaimed the land without permission of the concerned authority and on account of such reclamation there is stagnation of water in the adjacent paddy fields making it difficult for them to cultivate their fields. Sub Divisional Magistrate initiated action against the appellant and issued necessary R.S.A.No.1036 of 2009 2 orders which was confirmed by the Sessions Court in revision. They denied that they demolished the compound wall. Learned Munsiff found that appellant has reclaimed the land without permission of the authorities and hence she is not entitled to the injunction prayed for. It is also found that there is no acceptable evidence to show that respondents demolished the compound wall. Hence the Court refused to grant recovery of damages. In the first appellate court counsel for appellant admitted that evidence regarding demolition of the compound wall allegedly by the respondents is inconsistent and hence prayer for recovery of damages is not being pursued. What was pursued in the first appellate court was relief of injunction. First appellate court agreed with the trial court that appellant is not entitled to the injunction prayed for. Hence the second appeal. It is contended by learned counsel that courts below were not justified in disallowing the prayer for injunction when it is found that appellant is in possession of the property and she had genuine apprehension that the respondents might trespass. 2. Respondents have said that they have no intention to trespass into the suit property. Trial court found that the allegation that respondents demolished the compound wall is not proved. Grant of injunction arises only when appellant has a genuine apprehension that respondents would trespass into the property and commit R.S.A.No.1036 of 2009 3 mischief. Moreover it has come in evidence that it is without getting permission of the authority concerned that appellant has reclaimed paddy field. Evidence would indicate that such reclamation affected cultivation of paddy in the adjoining fields belonging to the respondents and others. Appellant has come to the Court with uncleaned hands and therefore she cannot enforce the process of the court to protect the land which she has reclaimed without permission, illegally and resulting in injury to the adjascent land owners. She is not entitled to the equitable relief of injunction as found by the courts below. I do not find any substantial question of law involved in the second appeal. The second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/