IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 RSA.NO. 1145 OF 2009() ---------------------- AS.50/2004 OF ADDL.SUB COURT, NORTH PARAVUR OS.59/2000 OF MUNSIFF COURT, NORTH PARAVUR .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------ VARGHESE, SON OF ANTHAPPAN, AAPPILLY, THUNDATHUMKADAVU, VARAPUZHA, PARAVUR TALUK. BY ADV. SRI.SOJAN MICHEAL SRI.V.S.BOBAN RESPONDENT(S): RESPONDENT/DEFENDANT ------------------------------------------------------------- THE SECRETARY, SPECIAL GRADE PANCHAYAT, VARAPPUZHA, VARAPPUZHA.P.O. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1145 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of November, 2009 J U D G M E N T --------------------- Respondent though served remains absent. I heard counsel for appellant. 2. Second Appeal arises from judgment and decree of learned Sub Judge, North Parur in A.S. No.50 of 2004 confirming dismissal of the suit vide judgment and decree dated 8.8.2003 in O.S. No.59 of 2000 of the court of learned Munsiff, North Parur. Appellant, claiming to be owner in possession of the suit property as per assignment deed No.983 of 1972 sued respondent for a decree for injunction against demolition of the compound wall. According to the appellant soon after he purchased the property in the year 1972 he constructed the building and compound wall. There is a road on the eastern side of the suit property. Secretary of the respondent issued intimation to the appellant alleging that appellant encroached into the pathway and constructed the compound wall. That necessitated the appellant to sue for injunction. Respondent contended that there was no notice issued to it before the institution of the suit. Pathway on the east of the property of the appellant is having a width of 2.5 metres. Appellant and some of the adjacent owners encroached into that road R.S.A. NO.1145 of 2009 -: 2 :- and constructed compound walls. On receipt of the complaint from local people a Committee was formed to enquire about that. Since the appellant has encroached into the road notice was issued to him. Appellant examined P.Ws.1 to 3 and proved Exts.A1 to A4. Respondent examined D.W.1 and proved Exts.B1 to B4. Exhibit C1 is the report of the Advocate Commissioner. Trial court found that appellant was not able to prove his title and possession over the entire suit property and dismissed the suit. First appellate court confirmed the judgment and decree. Learned counsel for appellant contends that finding of the courts below is not correct and that evidence would show that right from 1972 onwards the disputed compound wall is in existence. It is also requested by learned counsel that in case this Court is not inclined to interfere with the judgment and decree under challenge appellant may be permitted to pursue the statutory remedy available to him against the notice issued by the respondent. 3. Though appellant is claiming title and possession of the suit property he has not produced his document of title. Nor was any measurement of the property made with reference to the title deeds or other relevant documents to support his claim. Finding that appellant has encroached into the Panchayat road was made based on the present width of the road as reported in Ext.C1 and B4, extract of R.S.A. NO.1145 of 2009 -: 3 :- the road register. It is in the above circumstances that courts below were not inclined to accept the contention of appellant. Since the title deed on which appellant is claiming possession has not been produced and properties are not measured with reference to the relevant revenue and survey records and documents of title of appellant, a finding on title of appellant is not possible. Having regard to the facts and circumstances of the case courts below are justified in holding that appellant is not entitled to the injunction prayed for. I do not find any substantial question of law involved in the Second Appeal. But I make it clear that if otherwise entitled, it will be open to the appellant to pursue the statutory remedy if any available to him against the notice if any issued by the respondent. With the above observations, Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.1145 of 2009 -: 4 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.1145 OF 2009 =================== J U D G M E N T 24TH NOVEMBER, 2009