IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 RSA.No. 180 of 2006() --------------------- AS.255/2003 of 1ST ADDL.DISTRICT COURT, THRISSUR OS.548/1999 of III ADDL. M.C.,THRISSUR .................... APPELLANT/IST RESPONDENT IN AS 255/03/IST DEFENDANT IN OS.548 OF 1999: ---------------------------------------------------------------------------------------------------------------------- THE THRISSUR CORPORATION, REP. BY SECRETARY, THRISSUR. BY ADVS. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATION, SRI.LELLULAL T.G.THUNDATHIL, SRI.K.A.SREEJITH. RESPONDENT(S): APPELLANTS/PLAITIFFS/DEFENDANTS: -------------------------------------------------------------------------------------- 1. MARY ANTONY, W/O.LATE CHAZHOOR CHANDY ANTONY, FATHIMA NAGAR, CHEMBUKKAVU VILLAGE,THRISSUR TALUK. 2. FRANCIS, S/O.LATE CHAZHOOR CHANDY ANTONY, FATHIMA NAGAR, CHEMBUKKAVU VILLAGE, THRISSUR TALUK. 3. JOHNY, S/O.LATE CHAZHOOR CHANDY ANTONY, FATHIMA NAGAR, CHEMBUKKAVU VILLAGE,THRISSUR TALUK. 4. KURIAN, S/O.LATE CHAZHOOR CHANDY ANTONY, FATHIMA NAGAR, CHEMBUKKAVU VILLAGE, THRISSUR TALUK. 5. JERRY, C-101-SURYA VANSHI TOWER, VASTRAPUR, AHAMMEDHBAD-380015. 6. THE SPECIAL TAHSILDAR(LA), THRISSUR MUNICIPALITY, THRISSUR. 7. APREM, S/O.LATE CHAZHOOR CHANDY ANTONY, FATHIMA NAGAR, CHEMBUKKAVU VILLAGE, THRISSUR TALUK NOW RESIDING AT NO.503/GOLF MANOR, NAL ROAD, BANGALORE-17. R1 TO R5 & R7 BY ADVS. SRI.A.BALAGOPALAN, SRI.A.RAJAGOPALAN, SRI.V.N.GOPINATHAN. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------- R.S.A No.180 of 2006 -------------------------- Dated this the 31st May, 2010 J U D G M E N T First defendant in O.S.548/99 is the appellant. Parties hereinafter referred to as are available before the trial court. 2. According to the plaintiffs, plaint schedule propertes originally belonged to late Chandy Antony. Consequent on his death, plaintiffs and defendants 2 to 4 became the owner of the property. It is averred in the plaint that plaint A and B schedule properties are lying together as compact plot. An extent of 40 cents of land was acquired by the Municipality in the year 1986. That divided the property in two parts. First defendant had demolished the structure standing in the acquired property. The plaintiffs and their families are residing in plaint A schedule property. They have obtained sanctioned from the first defendant for constructing a compound wall. It is pointed out that as per the sanction a compound wall was constructed separating the plaint schedule property from the acquired property The R.S.A No.180 of 2006 2 complaint of the plaintiffs is that they apprehend that first defendant will demolish a portion of the compound wall standing in their property. 3. It is stated that first and 5th defendant have threatened the plaintiffs that they will demolish the boundary wall in the plaint A schedule property. Hence they instituted the suit. 4. According to 1st defendant, the suit is not maintainable. Plaintiffs have other efficacious remedies available to them under the Survey and Boundaries Act. It is pointed out that the property which was acquired was measured and stones were put up in the boundaries in the year 1987. Later, fresh stones were put up and the allegation that new stones were subsequently put up by the Corporation is incorrect. The plaint B schedule property was acquired for the purpose of the construction of the road. Though the property was acquired in the year 1986 road could not be constructed due to some technical reasons. Subsequently on measurement, it is found that fencing put up by the plaintiffs had encroached into the R.S.A No.180 of 2006 3 Plaint B schedule property. It is pointed out that if there is any grievance regarding the steps taken by the Municipality, remedy lies elsewhere. Without doing so, they cannot seek remedy from the court. On the basis of these allegations, they prayed for a dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence in the case consists of the oral testimony of PW1 and Exts.A1 to A5 were marked from the side of the plaintiffs. Defendants did not choose to adduce any evidence. Ext.C1 is the Commission Report. On an appreciation of evidence, the trial court came to the conclusion that plaintiffs are not entitled to any reliefs and accordingly dismissed the suit. 6. Plaintiffs carried the matter in appeal as A.S 255/2003. The appellate court was greatly impressed by the contention taken by the appellant and granted a decree as prayed for. Therefore, first defendant has come up with this present appeal. 7. The following questions of law are formulated in this memorandum of appeal. R.S.A No.180 of 2006 4 1. Where the extent of property is the crucial question in dispute and allegations of encroachment are made and refuted by the parties, is not the party who seeks injunction bound to prove his legal right over the property by measuring out the actual extent of the property in his possession or ownership? 2. Whether injunction can be granted in a case where the plaintiff has failed to prove his legal right? 3. Whether the appellate Court can take a decision against the defendant on a point, which was not raised or averred at the trial stage? 4. Whether the appellate Court can grant injunction with respect to a property which has not been measured and demarcated? 5. What is the scope and ambit of Section 372 of the Kerala Municipality Act 1994? 6. Whether Section 372 of the Kerala Municipality Act 1994 has any relevance in the facts and circumstances of the case? 7. What is the scope and ambit of Section 367 of the Kerala Municipality Act 1994? 8. Learned counsel appearing for the appellant pointed out that the lower appellate court was not justified in granting a decree in favour of the plaintiffs. It is pointed R.S.A No.180 of 2006 5 out that at best the court below could have granted an order restraining the first defendant in the suit from forcibly taking any fraudulent action. But the court below could not have restrained the first defendant from taking any steps that are available to them in law. There could not have any permanent prohibitory injunction restraining the Municipality from taking from such action as are available to them under the statute. 9. It is to be noticed that the trial court dismissed the suit, but the lower appellate court granted a decree which reads as follows: In the result, appeal is allowed with costs of the appellants. Suit is decreed for a permanent prohibitory injunction restraining the 1st defendant from demolishing the building and the northern wall in the plaint A schedule property and the iron wire fencing on the southern and eastern sides of the plaint B schedule property with costs." 10. The lower appellate court would have safeguarded the interests and rights of plaintiffs. But to grant an absolute prohibitory injunction preventing them from taking any steps that are available to them R.S.A No.180 of 2006 6 under the statute cannot be accepted. 11. It is pointed out by the first defendant that fencing has been put up encroaching into the acquired property. If plaintiffs are aggrieved by any of the steps taken by the first defendant, remedies are available under Kerala Muncipality Act. Whatever that be, the decree now granted by the appellate court cannot be sustained. While the first defendant is restrained from forcibly taking such steps so as to demolish the compound wall put up by the plaintiffs, they will at liberty to take such steps as are available to them in accordance with law and under the relevant statute. Subject to the above modifications, this Second Appeal is dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE ma R.S.A No.180 of 2006 7 R.S.A No.180 of 2006 8