IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 RSA.No. 166 of 2008() --------------------- AS.170/2005 of DISTRICT COURT,KOLLAM OS.437/2001 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT: APPELLANT/PLAINTIFF ------------------------------------ YOUSAFIN, D/O.SMT.JAIN KONIKKAL VEEDU, VADAKKUMBHAGOM MURI THEKKUMBHAGOM VILLAGE, CHAVARA SOUTH P.O. KOLLAM-691 584. BY ADV. SRI.K.K.JOHN RESPONDENTS: RESPONDENTS/DEFENDANTS ----------------------------------- 1. JOSEPH, S/O.XAVIER, LISSY VILLA VADAKKUMBHAGOM MURI, THEKKUMBHAGOM VILLAGE CHAVARA SOUTH P.O., KOLLAM-691 584. 2. CLEETUS, S/O.JOSEPH, JINCY NIVAS VADAKKUMBHAGOM MURI, THEKKUMBHAGOM VILLAGE CHAVARA SOUTH P.O., KOLLAM-691 584. 3. RAJAN, S/O.JOHNSON, RAJ BHAVAN VADAKKUMBHAGOM MURI, THEKKUMBHAGOM VILLAGE CHAVARA SOUTH P.O., KOLLAM-691 584. 4. MAHESAN, S/O. N.R.DAS KOCHUNADAKKAVIL, NADAKKAVU, THEKKUMBHAGOM VILLAGE CHAVARA SOUTH P.O., KOLLAM-691 584 5. BIJU, S/O.CHELLAPPAN PILLAI PADIKKAL PADETTATHIL, VADAKKUMBHAGOM MURI THEKKUMBHAGOM VILLAGE, CHAVARA SOUTH P.O. KOLLAM-691 584. 6. NELSON, S/O.JOHN, PULAYANEZHUTH VADAKKUMBHAGOM MURI, THEKKUMBHAGOM VILLAGE, CHAVARA SOUTH P.O., KOLLAM-691 584. 7. SAJI, S/O.ZACHARIAS, FATHIMA COLLEGE KOIVILA MURI, THEKKUMBHAGOM VILLAGE CHAVARA SOUTH P.O., KOLLAM-691 584. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 166 OF 2008 =========================== Dated this the 12th day of March, 2008 JUDGMENT Plaintiff in O.S.437/2001 on the file of Munsiff Court, Karunagappally is the appellant. Respondents are the defendants. Appellant instituted the suit for permanent prohibitory injunction restraining respondents from trespassing into the plaint schedule property and encroaching into any portion of the property for widening the road ad also for damages. Plaint schedule property is 23 ½ cents excluding 2 cents out of 25.5 cents, which according to appellant was obtained by the appellant under Ext.A2 and A3, which was originally obtained by the father under Ext.A1. According to the appellant, the property obtained by her includes 23 cents and excess land out of which 2 cents were given to the Panchayat for the purpose of constructing an Anganavadi and the balance extent is the plaint schedule property and R.S.A.166/2008 2 it is in her possession and enjoyment and respondents have no manner of right or possession over the property. It was contended that respondents influenced the local Panchayat President who requested to surrender a portion of the plaint schedule property for widening the pathway and when appellant was not amenable respondents attempted to trespass into the property and demolished the newly constructed compound wall on 13.7.2001 and caused a damage of Rs.8000/-. Apprehending that respondents would further commit trespass a decree for injunction was sought in addition to the damages of Rs.8000/-. 2. Respondents resisted the suit contending that father of appellant had only 23 cents out of which 2 cents were relinquished by the father for the purpose of constructing Anganavadi and another 2 cents was earlier given to Thekkumbhagom Panchayat for the purpose of constructing a public well and thereafter father was in possession of 19 cents alone which can be claimed by appellant R.S.A.166/2008 3 under Exts.A2 and A3. It was also contended that a public way is situated on the northern side of the plaint schedule property which has a width of 2 ½ metres and there is no necessity to widen the road and respondents did not commit any damages and appellant is not entitled to a decree for injunction or damages. 3. Learned Munsiff on the evidence of Pws.1 and 2, Dws.1 to 8, Exts.A1 to A8, B1 to B4, Exts.C1 and Ext.X1 found that Ext.B2 thandaper account No.9164 in respect of the property shows that father of appellant was having only 23 cents and out of that property 2 cents was given to the Panchayat for the purpose of constructing a public well on 8.4.1983 and another 2 cents was relinquished on 22.12.1987 and therefore appellant cannot claim right and possession to the entire plaint schedule property. On the evidence it was found that appellant did not establish that respondents committed any trespass or demolition of the compound wall and held that appellant is not R.S.A.166/2008 4 entitled to the decree for damages. Finding that appellant did not establish her possession of the entire plaint schedule property and taking into consideration that out of the property obtained by the father under Ext.A1,four cents was transferred to the Panchayat. Learned Munsiff dismissed the suit. Appellant challenged the judgment before the District Court, Kollam in A.S.170/2005. Learned District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. 5. The argument of the learned counsel is that courts below did not properly appreciate the case advanced by the appellant. It was argued that appellant in the plaint itself admitted that out of the property obtained by the father under Ext.A1 2 cents was given to Panchayat for the purpose of Anganavadi and decree for injunction was claimed R.S.A.166/2008 5 only in respect of the remaining extent of the property and appellant was compelled to institute the suit, when respondents demolished the newly constructed compound wall which separates the northern way from the plaint schedule property and as respondents have no right to trespass into the plaint schedule property, a decree for injunction should have been granted. It was argued that though courts below relied on Ext.B2 Thandaper account to hold that 2 cents was given to the Panchayat for construction of a well, there is no supporting evidence to prove that father of the appellant had relinquished the said 2 cents. Appellant had filed another suit O.S.572/2002 for declaring that the entry in the thandaper account that two cents was relinquished by the appellant for the purpose of construction of well is not correct and therefore relying on Ext.B2 courts below should not have non-suited the appellant. 6. On hearing the learned counsel for the appellant, I do not find that any substantial R.S.A.166/2008 6 question of law is involved in the appeal. 7. The suit is only for injunction. Case of the appellant was that she is in possession of the plaint schedule property and respondents are not entitled to trespass into the property for the purpose of widening the existing way which lies to the north of the plaint schedule property. Under Ext.A1 father of the appellant obtained only 23 cents. What was claimed by appellant is that under Exts.A2 and A3, apart from that 23 cents excess land was also transferred by the father and including the excess land father was in possession and 25 ½ cents out of which 2 cents was given to the Panchayat for the purpose of Anganavadi and balance 23 ½ cents was obtained by the appellant under Exts.A2 and A3 and it is in his possession and respondents are not entitled to trespass into the property. What was contended by respondents was that appellant's father was only in possession of 23 cents out of which father originally surrendered 2 cents for the purpose of construction R.S.A.166/2008 7 of a well to the Panchayat and thereafter another 2 cents was given for the Anganavadi and therefore appellant obtained and could claim only the balance 19 cents. The argument of the learned counsel is that the relinquishment of the right over two cents for the purpose of Anganavadi was admitted and there is no evidence to prove that father of the appellant had relinquished his right or surrendered 2 cents for the purpose of the well. 8. Courts below relying on the evidence and especially Ext.B2 found that apart from 2 cents admitted by the appellant, another 2 cents was given to the Panchayat earlier for the purpose of construction of a public well. The argument of the learned counsel is that in respect of that 2 cents, O.S.572/02 instituted by him is pending and therefore courts below should not have relied on the entry in Ext.B2 to find that appellant is not in possession of that property. When the suit is for injunction, it is for the appellant to establish what exactly is the plaint schedule R.S.A.166/2008 8 property in her possession. When Ext.A1 shows that only 23 cents was obtained and it is admitted that 2 cents was relinquished by the father of appellant to the Panchayat for the construction of Anganavadi and Ext.B2 also shows that another two cents was originally surrendered by the father of the appellant to the Panchayat, without establishing the exact identity of the balance property left with the appellant she is not entitled to get a decree for injunction. In the light of the factual finding of the courts below, I do not find any substantial question of law involved in the appeal. The appeal is dismissed. It is made clear that the dismissal of the suit will not affect the right of the appellant to agitate her claim in O.S.572/02. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006