IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 SA.No. 352 of 2000(A) --------------------- AS.501/1998 of ADDL.DISTRICT COURT, THRISSUR OS.861/1996 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANT(S)/RESPONDENT/PLAINTIFF: -------------- JOHNY,S/O.PERINCHERY AUGUSTHY, EDAKUNNI VILLAGE, DESOM, THRISSUR TALUK. BY ADV. SRI.P.K.ABOOBACKER(EDATHALA) RESPONDENT(S)/APPELLANTS/DEFENDANTS: --------------- 1.VIJAYAN,S/O.ERATH MADHAVI AMMA, EDAKUNNI VILLAGE DESOM, THRISSUR TALUK. 2.KARAYAM PARAMBIL MATHEW, EDAKUNNI VILLAGE DESOM, THRISSUR TALUK. 3.JOS,S/O.PANENGADAN ANTONY, EDAKUNNI VILLAGE DESOM, THRISSUR TALUK. ADV. SRI.N.P.SAMUEL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2010, THE COURT ON 15/11/2010 DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.352 OF 2000 (A) ----------------------------------- Dated this the 15th day of November, 2010 J U D G M E N T Appellant is the plaintiff in O.S.No.861 of 1996 on the file of the Principal Munsiff Court, Thrissur. His suit for perpetual prohibitory injunction, which was later amended for having a mandatory injunction as well, was decreed by the trial court, as against defendants 2 to 4 in the suit. In the appeal preferred by defendants 2 to 4, the lower appellate court, Ist Additional District Court, Thrissur, reversed the decree passed in favour of the plaintiff and dismissed the suit. Feeling aggrieved, he has come up with this second appeal. 2. Short facts involved in the case necessary for disposal of the appeal can be summed up thus: Two items are described in the plaint as 'A' and 'B' schedule, over which, title and possession was claimed by the S.A.NO.352/2000 2 plaintiff under A1 and A2 registered sale deeds respectively. 'A' schedule is described as having 14 cents in Sy.No.170/4 in Edakunnel village, and 'B' schedule, 20 cents in Sy.No.169/1 of the same village. In between 'A' and 'B' schedule properties, on the southern side of 'A' schedule and on the northern side of 'B' schedule, there is a road running east-west direction, and it has a width of 13 feet, according to the plaintiff. 'A' schedule is surrounded on all sides by compound walls put up by him, and 'B' schedule on its northern boundary touching the above road to a distance of 45 feet is having a compound wall and the remaining portion on that side of 'B' schedule touching the road facing east, he had constructed two shop rooms, is the case of the plaintiff. The defendants, among whom the 1st defendant is a local panchayat member, are attempting to demolish the southern compound wall of 'A' schedule, and the northern compound wall and the structures in 'B' schedule, beside the aforementioned road, with intend to widen that road, was the case of the plaintiff to seek a decree of perpetual prohibitory injunction against them from causing any destruction to the southern boundary wall of 'A' schedule and the northern S.A.NO.352/2000 3 boundary wall and the shop rooms, in 'B' schedule, and from committing any act of waste in the above properties. The plaintiff later amended the suit for a decree of mandatory injunction for restoring the boundary walls of 'A' and 'B' schedule, if found destroyed on the inspection of the commissioner, at the costs of the defendants. The defendants jointly filed a written statement disputing the allegations raised in the plaint, and contended that the pathway at the road in between 'A' and 'B' schedule had a width of 21 feet and encroaching upon that road in 'B' schedule the plaintiff had put up a lean-to. When the local people objected to such constructions, plaintiff with his associates manhandled them and a criminal case registered over such incident is pending, according to the defendants. They further contended that the land in which the lean-to was constructed by the plaintiff is not his registered holding. They also asserted that they had no intention to demolish the compound walls of the properties of the plaintiff. A further contention was raised that the existing boundaries of the plaint schedule properties are not correct and the lean-to in 'B' schedule had been constructed encroaching S.A.NO.352/2000 4 upon the public road. After the amendment of the plaint seeking the additional relief of mandatory injunction, the defendants filed an additional written statement in which disowning the destruction caused to the compound walls in 'A' and 'B' schedules and the destruction of the building in 'B' schedule, they contended that they have no liability to restore the same. On the materials placed, which consisted of PWs.1 and 2 and Exts.A1 to A10 for the plaintiff, DWs.1 to 4 and Ext.B1 for the defendants, two reports and a rough sketch prepared by an advocate commissioner deputed by the court exhibited as C1 and C2 series and some third party exhibits X1 and X2, the trial court came to the conclusion that there was an invasion over the properties of the plaintiff in 'A' and 'B' schedule by defendants 2 to 4 after the filing of the suit and demolition of the compound walls in 'A' and 'B' schedule and the shop room in 'B' schedule, and, accordingly, granted the plaintiff a decree of mandatory injunction directing the defendants to restore the plaint schedule properties to its prior position as evidenced by A5 (g) and A5 (f), two photographs which showed the status quo ante over the boundary walls and building on the date of institution of the suit. S.A.NO.352/2000 5 That decree being challenged, in appeal by defendants 2 to 4, the lower appellate court, after re-appreciating the evidence, differing from the conclusion drawn by the trial court, reversed the decree and non-suited the plaintiff by dismissing his suit. 3. Substantial questions of law formulated in the appeal mainly relate to the propriety, legality and correctness of the judgment of the lower appellate court in interfering with the decree granted in favour of the plaintiff by the trial court which, according to the appellant, had been made by the lower appellate court ignoring not only the pleadings and evidence tendered in the case, but, on extraneous matters not even raised by the defendants either in the written statement to resist the claim or in the memorandum of appeal before the first appellate court to impeach the decree of the trial court. 4. The learned counsel for the appellant taking strong exception to the finding rendered by the lower appellate court to S.A.NO.352/2000 6 non-suit the plaintiff, reversing the decree granted in his favour by the trial court, contended that many of the questions raised and considered by that court were not even borne out by the pleadings and evidence let in the case. There was total mis-construing of the facts and circumstances and also the evidence let in the case by the lower appellate court, and travelling far outside the pleading and evidence in the case, relying on extraneous matters unconnected with the issue involved, the lower appellate court has interfered with the decree granted in favour of the plaintiff, is the submission of the counsel. The non-impleadment of the panchayat as a defendant in the suit and also some action purported to have been taken by the panchayat as if there was some trespass over the road in between 'A' and 'B' schedule, which remained unsubstantiated by any material other than a copy of a resolution, according to the counsel, was given unmerited consideration by the lower appellate court to interfere with the conclusion formed by the trial court that the plaintiff has established his entitlement for the decree of mandatory injunction in the proved facts of the case. Plaintiff had failed to establish the overacts of the S.A.NO.352/2000 7 defendants and also their trespass, the view taken by the court below to non-suit him and interfere with the decree of mandatory injunction awarded by the trial court, is impeached by the counsel contending that the discretionary relief sought for required to be considered solely on the basis whether the plaintiff's case is probable and acceptable. 5. Per contra, the learned counsel for the respondent contended that no interference with the decree of dismissal of the suit by the lower appellate court reversing the decree of the trial court is warranted in the case where the plaintiff, as rightly and correctly found by the court below, has not established his entitlement for the decree of mandatory injunction applied for. Valid and cogent reasoning has been given by the lower appellate court to differ from the conclusion drawn by the trial court, after re-appreciating the evidence with reference to the pleadings of the case, and the reversal of the decree of the trial court by the lower appellate court, in the facts and circumstances of the case, is unassailable, is the submission of the counsel. It is further contended that no substantial question S.A.NO.352/2000 8 of law is involved in the appeal and it is liable to be dismissed. 6. Perusing the judgments rendered by the two courts below with reference to the questions raised and submissions made by the counsel, I find, the lower appellate court has egregiously erred in interfering with the decree of mandatory injunction granted in favour of the plaintiff in the case. True, the first appellate court is the final authority on disputed questions of fact, but, however, where it is shown on the face of the record that it has interfered with the findings of the trial court on grounds which are not factually and legally based on the pleadings, evidence and facts and circumstances presented in the case, and where the conclusion drawn are against the pleadings and evidence, that itself give rise to a substantial question of law in the appeal, persuading this Court to examine the materials of the case to avoid miscarriage of justice. Other than denying the material allegations raised in the plaint, and setting forth a case that the plaintiff encroaching upon a pathway had put up a shop room in 'B' schedule, the defendants had no case in their written statement disputing the existence of S.A.NO.352/2000 9 the compound walls surrounding 'A' schedule and for a considerable distance on the northern side of 'B' schedule and of a shop building touching that road in that schedule. However, resistance to the decree canvassed by the plaintiff was set up, as seen from the written statement, presenting a case that the plaintiff had encroached upon the pathway in putting up a shop room in 'B' schedule, and that alone, and when steps were taken by the panchayat to restore the pathway, he had filed the suit. Two commission reports have been prepared in the case, one, immediately after the institution of the suit and, another, at a later point of time, after the compound walls beside the road, the southern compound wall of 'A' schedule and northern compound wall of 'B' schedule, and also the shop rooms in 'B' schedule, were destroyed after the filing of the suit. The first report of the commissioner exhibited as C1 clearly demonstrate the existence of the compound walls in 'A' and 'B' schedule and also the shop rooms in 'B' schedule as alleged by the plaintiff. Subsequent report filed by him demonstrate the destruction of the compound walls and shop building. It was in this backdrop, on the materials produced in the case by both sides, the trial court S.A.NO.352/2000 10 concluded that at least as against defendants 2 to 4, the plaintiff is entitled to a decree of mandatory injunction for restoration of the compound walls and shop building as it existed at the time of institution of the suit. As against the 1st defendant, the local panchayat member, the trial court held that there was no convincing evidence to prove her complicity in the demolition of the compound walls and shop building, and as such, she is not liable. Since the plaintiff has not filed any appeal declining the relief canvassed against the 1st defendant, nothing more need be stated on that aspect. So the merit of the decree granted by the trial court against defendants 2 to 4, but reversed in appeal by the lower appellate court, need be examined with reference to the materials of the case. 7. A perusal of the appeal memorandum presented before the court below disclose that other than contending that defendants 2 to 4 have no role in the destruction and demolition of the boundary walls and shop building in the property of the plaintiff, none of the findings entered by the trial court to grant a decree in his favour, was impeached. True, a ground was raised S.A.NO.352/2000 11 that the finding of the trial court that defendants 2 to 4 committed illegal destruction of the properties of the plaintiff is wrong and that there was no evidence to support that finding. Leaving that alone, it is seen, the correctness of the decree of the trial court was not impeached with reference to the entitlement of the plaintiff to have such a decree on description of 'A' and 'B' schedule, his title and possession over those items, non-impleadment of the panchayat in the suit etc. all of which have been commented upon and discussed in detail by the lower appellate court to enter adverse findings thereof against the plaintiff to reverse the decree granted in his favour by the trial court. On the pleadings involved in the case and further on the evidence as well, all the aspects over which the lower appellate court had directed its enquiry to test the validity of the decree in favour of the plaintiff assailed in appeal before that court, were quite uncalled for. In evidence also, it is to be stated, the case of the plaintiff is fully supported by his evidence and also that of a worker examined as PW2, and to a large extent, corroborated by the reports prepared at two points of time by the advocate commissioner deputed by the court. The reports of the advocate S.A.NO.352/2000 12 commissioner which proved the existence of the boundary walls and the shop building at the institution of the suit, and its demolition later pending suit, remained unimpeached. As already pointed out, the defendants have not impeached the description of 'A' and 'B' schedule properties other than contending that the plaintiff had encroached a portion of the pathway on the northern side of 'B' schedule to put up a shop building. Even on their admitted case that shop building was put up before the institution of the suit and it continued to exist on the date of institution of the suit. The report of the commissioner would show the age of that shop building, the electric connection taken thereto and a ration shop being conducted in one of the shop rooms, all of which indicate that the state of affairs over the building had been in continuance for quite some time before the suit was instituted. At any rate, the defendants had not disputed the existence of the compound wall put up on the southern side of 'A' schedule property as on the date of suit, and also for a considerable distance on the northern side of 'B' schedule, both of which had been found demolished later as proved by the second report of the commissioner. S.A.NO.352/2000 13 8. As against the evidence let in by the plaintiff in support of his case that the demolition of the compound walls and shop building was done by the defendants, what was in evidence to counter such case is only an attempt to show that the panchayat had taken some action in respect of the trespass committed over the road by the plaintiff, and it was at the instance of the local authority, some demolitions were made. No record whatsoever was produced to show what was the width of the road passing in between 'A' and 'B' schedule. That road enjoyed by the public belongs to the panchayat and it is further stated that the panchayat had taken steps for tarring of that road. Necessarily then records could have been produced from the panchayat to show as to the width of the road. Since the disputed issue involved in the case squarely rested upon that question whether any encroachment over the road had been made by the plaintiff, which was the case of the defendants, though in the written statement they had only a case of trespass by the construction of a shop building encroaching upon the panchayat road, if any material had been produced that there was encroachment over S.A.NO.352/2000 14 other portions of the road as well in putting up the compound walls by the plaintiff, no doubt, that could also have been taken note by the court to consider the question whether the plaintiff was entitled to the discretionary relief of injunction. Not only that no material was produced even the evidence of the 1st defendant examined as DW1 would indicate that she only wanted to screen herself as not a party involved in the demolition of the compound walls and shop building. Though some other witnesses had been examined on behalf of the defendants, panchayat secretary, village officer, surveyor etc. it is seen that their evidence, at the most, would only show that panchayat had contemplated of some steps on the allegation raised over the trespass on the road, and nothing more. If at all there was a trespass over the road and putting up of any compound wall or structure by the plaintiff encroaching upon the road, needless to point out, it is open to the panchayat to take appropriate steps to restore the road as it was before. Though the 1st defendant is a panchayat member, no material was placed before the court as to the steps taken by the panchayat to demolish the compound walls and shop building in 'A' and 'B' schedule, is a material S.A.NO.352/2000 15 circumstance presented in the case which would go a long way in advancing the case of the plaintiff that such demolitions were done at the instance of the defendants. 9. In the criminal case launched by the plaintiff, a good number of persons have been arrayed as accused and not the defendants alone, which weighted with the lower appellate court, is an innocuous circumstance not in any way affecting the merit of the case applied for by the plaintiff to seek the discretionary relief of injunction from the civil court. In examining the merit of the claim of the plaintiff, as rightly contended by the learned counsel for the plaintiff, the proved facts and circumstances of the case deserve to be appreciated in the backdrop whether the claim of the plaintiff is probable and acceptable. In other wards, the relief canvassed necessarily has to be judged on the preponderance of probabilities as done by the trial court, but, however, it is seen the lower appellate court had directed its enquiry to test the veracity of the case of the plaintiff as to whether there is clinching evidence establishing the demolition of the compound walls and shop building by the S.A.NO.352/2000 16 defendants. The materials tendered, the evidence of PWs.1 and 2 on that aspect, which was found credible, trustworthy and inspiring confidence to the trial court was brushed aside by the lower appellate court on innocuous circumstances that both of them had not stated in evidence the specific overt acts of any of the defendants and also in the criminal case launched by the plaintiff, he had named some other persons also as accused. The aforesaid circumstances relied upon by the lower appellate court to discard the evidence of PWs.1 and 2 are hardly acceptable. The non-impleadment of the panchayat as a party to the suit, which is also commented upon by the lower appellate court, in no way affects the right of the plaintiff to seek the discretionary relief against the defendants. Merely because the trial court had raised an issue over the description of the plaint schedule properties, which examined with the contentions raised in the written statement was not even warranted, even assuming that there was discrepancy as to the extent of 'B' schedule, with respect to which, the plaintiff has admitted even in the plaint that he is having a lesser extent than covered by A2, as some portions had been disposed of by sale, it is hardly having any S.A.NO.352/2000 17 merit in the adjudication of the disputes involved in the case. So much so, especially in the backdrop of the challenges canvassed in the memorandum of appeal before the lower appellate court for impeaching the decree of the trial court, no enquiry was warranted with respect to the description of the plaint properties to examine the merit of the decree granted to the plaintiff. 10. Since the materials tendered by the defendants indicated that the panchayat contemplated of some action against trespass over the road, it is seen, the lower appellate court has jumped into a conclusion that no effective decree of mandatory injunction can be passed without the panchayat in the party array. As indicated earlier that no material was produced in the case by the defendants, among whom the 1st defendant was a member of the panchayat, to show the width of the panchayat road passing in between 'A' and 'B' schedule, leave alone of any trespass over the road by the plaintiff. A mere plea by the defendants that steps had been taken by the panchayat imputing trespass over the road by the plaintiff, has no value at S.A.NO.352/2000 18 all to hold that Section 38 of the Specific Relief Act disentitled the plaintiff to get a mandatory injunction when the panchayat was not made a party to the suit. The view so taken by the lower appellate court on the premise that the defendants have disputed title and possession over 'A' and 'B' schedule, which is not so, is not correct. As against defendants 2 to 4, on the materials placed, the decree granted by the trial court in favour of the plaintiff, was wrongly interfered by the lower appellate court, and it has to be reversed. In the result, setting aside the decree and judgment of the lower appellate court, the decree of mandatory injunction granted in favour of the plaintiff against defendants 2 to 4, by the trial court directing those defendants to restore the boundary walls of 'A' and 'B' schedules and shop buildings in 'B' schedule, is restored. Appeal is allowed directing both sides to suffer their costs. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.352 OF 2000 (A) ----------------------------------- J U D G M E N T 15th day of November, 2010