IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 RSA.No. 1156 of 2009() ---------------------- AS.50/2006 of SUB COURT,KATTAPPANA OS.26/2004 of MUNSIFF COURT, IDUKKI .................... APPELLANTS/APPELLANTS/DEFENDANTS -------------------- 1. JUSTINE, S/O.LAWRENCE, LOVE DALE, VAZHATHOPPU, IDUKKI COLONY P.O. 2. MARY SARALA, W/O.JUSTINE, LOVE DALE, -DO- -DO- BY ADV. SRI.G.JANARDHANA KURUP, SENIOR ADVOCATE SRI.C.K.SAJEEV SRI.JAI GEORGE SRI.E.C.BINEESH SRI.N.K.SHAIJU SMT.M.B.SHYNI RESPONDENT(S)/RESPONDENTS/PLAINTIFFS: --------------- 1. THE KERALA STATE ELECTRICITY BOARD REP. BY ITS SECRETARY, VAIDYUTHI BHAVAN, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, K.S.E.B L.P. ACCOUNT CLOSING UNIT, KOTHAMANGALAM, ERNAKULAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1156 of 2009 -------------------------------------- Dated this the 11th day of November, 2009. JUDGMENT The Second Appeal arises from judgment and decree of learned Sub Judge, Kattappana in A.S.No.50 of 2006 confirming judgment and decree of learned Munsiff, Idukki in O.S.No.26 of 2004. Respondents, Kerala State Electricity Board and its Executive Engineer apprehended that appellants who own property on the southern side of the suit property belonging to them might trespass into that property and construct road through it and filed O.S.No.26 of 2004 seeking decree for prohibitory injunction against such act. Appellants contended that they have a right of way through southern portion of the suit property. Learned Munsiff found that appellants have no conceivable right in the suit property and granted decree as prayed for. First appellate court, observing that there is no specific plea of right of easement of any nature along the suit property confirmed the judgment and decree. Hence the Second Appeal raising by way of substantial question of law whether a blanket injunction is allowable against trespass when respondents admitted right of public at large over the identified portion of the schedule property and whether the court can rely on commission report on the ground that no objection is filed to it . It is contended by learned counsel that decree for injunction as it stands prevented the appellants from going along the road which is in existence through the southern side of the suit property. RSA No.1156/2009 2 2. The property scheduled is 42.86 hectares which originally belonged to the Forest Department and leased to the Kerala State Electricity Board (respondent No.1) in the year 1960 in connection with the Idukki Hydro Electric project at Vazhathoppu subject to condition of payment of rent. The grant of lease, the property covered and payment of rent are proved by Exts.A1, A3 and A4. It is the further case of respondents that offices requiring utmost security such as offices of Lower Periyar Hydro Electric Project, Research Division of Kerala State Electricity Board and other offices are housed in the suit property and the area has been declared within the purview of the Official Secrets Act with effect from 28.11.1968. According to them, appellants own property on the south of the suit property, all these properties are slanting from north to south and to prevent soil erosion during rainy season a compound wall was constructed by the appellants on the southern boundary of the suit property. Now appellants are using the pathway along the east of their property which starts from the colony road. Apprehension of respondents is that appellants are attempting to open a new road from the said pathway on the eastern side of their property to the suit property. Appellants contended that the slanting portion of the property, (towards the southern portion of the suit property) was being used as a road by themselves and their predecessors-in-interest since long for access to their property. They denied the allegation of trespass and attempt to construct a new road. Trial court found that contention raised by the appellants are not correct and based on the evidence, decree was granted. First appellate court has confirmed it. It is contended by learned counsel that the blanket RSA No.1156/2009 3 decree granted by the courts below even prevented the appellants from using the existing road through the southern side of the suit property. Learned counsel has invited my attention to the plan prepared by the advocate commissioner and his report. Learned counsel submitted that Ext.A2 excludes from its purview the public road and the area occupied by the colony. 3. That, the suit property on account of its high sensitive and security reason has been notified as coming within the purview of the Official Secrets Act with effect from 28.11.1968 is proved by Ext.A2. It is true that PW1 has stated that in the suit property apart from the offices of the Kerala State Electricity Board there are other offices situated such as school and hospital. According to the learned counsel, evidence of PW1 would show that public are visiting the said hospital, school, etc. But I must bear in mind that the suit property accommodates the quarters of the officials of the Kerala State Electricity Board working at Vazhathoppu and nearby places and necessarily therefore hospital/school facility for the family members have been provided in the suit property. May be, public at large also attend the said hospital/school. But that does not clothe them with unbridled right of access or a right to open up a pathway through the suit property. The plan prepared by the advocate commissioner shows that steps constructed by the appellants on the east of their property is situated close to the compound wall on the southern boundary of the suit property. The apprehension of the respondents is that at that portion appellants are trying to open up a new road. Apart from stating that appellants RSA No.1156/2009 4 and their predecessors are using the suit property for access no specific right is pleaded, first appellate court observed. It is also found by the courts below that even in Ext.A5, copy of the complaint dated 18.11.2003 preferred by appellant No.1 (DW1) to the Hon'ble Minister for Power, Government of Kerala there is no mention about any road being used by the appellants and the request as per Ext.A5 is only to permit appellants to construct retaining wall to prevent soil erosion. It is considering these aspects and also the protection which the suit property and public offices situated therein required and on account of appellants failing to establish conceivable right over the suit property that decree was granted. I am not satisfied that any substantial question as raised in the memorandum of appeal do arise for a decision since judgment and decree are passed on the evidence on record. The Second Appeal is dismissed in limine. I.A.No.2650 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks