IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 SA.No. 274 of 2002() ----------------------------- AS.507/1998 of IST ADDL.DISTRICT COURT, THRISSUR OS.459/1996 of MUNSIFF COURT,VADAKKANCHERRY .................... APPELLANT(S): RESPONDENT/PLAINTIFF ------------------------------------------------------------- RAMACHANDRAN S/O.VADAKKEPPATTU KARTHIAYANI AMMA ITTONAM DESOM,P.O.CHATHANNUR, VIA.PERINGOD,OTAPPALAM TALUK,PALAKKAD DISTRICT BY ADV. SRI.P.VIJAYA BHANU SMT.ROHINI V.MENON RESPONDENT(S): APPELLANT 2 TO 10/DEFENDANTS 2 TO 5 --------------------------------------------------------------------------------------- 1. RAJAN S.O.KOTHA,RESIDING AT KUNNAMKADU COLONY,CHELOORU DESOM,THICHOOR VILLAGE,TALAPPILLY TALUK. 2. BABU S/O.SUBRAMANIAN,RESIDING AT KUNNAMKADU COLONY,CHELOORU DESOM,THICHOOR VILLAGE, TALAPPILLY TALUK. 3. CHEKKUTTY S/O.CHELOORPEEDIKAYIL SAIDALI,CHELOORU DESOM,THICHOOR VILLAGE, TALAPPILLY TALUK 4. NARAYANAN S/O.MOORIPPARA AYYAPPAN, CHELOORU DESOM,THICHOOR VILLAGE,TALAPPILLY TALUK 5. CHAKKY W/O.KOTHA,RESIDING AT KUNUMKADU COLONY,CHELOOR DESOM,.THICHOOR VILLAGE, TALAPPILLY TALUK 6. AMMINI D/O.KOTHA,RESIDING AT KUNAMKADU COLONY,CHELOORU DESOM,THICHOOR VILLAGE, TALAPPILLY TALUK tss S.A. NO.274/2002 7. SARASWATHY,ANGANAVADY TEACHER W/O.KRISHNAN,PANTHILATHU VALAPPIL HOUSE, NAGALASSERY,RESIDING AT KUNNAMKADU COLONY CHELOOR,TRICHOOR VILLAGE,TALAPPALLY TALUK D/O.KOTHA 8. DEVU W/O.UNNIKRISHNAN,CHERUKUNNU HOUSE, CHITADI DESOM,D/O.KOTHA,RESIDING AT KUNNAMKADU COLONY,CHELOOR,THICHOOR VILLAGE,TALAPPILLY TALUK 9. RAJASREE W/O.RAJAN,PETTATH VEETIL, PATAMBI,D/O.KOTHA,RESIDING AT KUNNAMKADU COLONY, CHELOOR,THICHOOR VILLAGE,TALAPPILLY ADV. SRI.T.A.RAJAGOPALAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.787/2002 IN S.A. NO.274/2002 DISMISSED 04/02/2011 SD/- HARUN-UL-RASHID, JUDGE TRUE COPY P.A. TO JUDGE tss HARUN-UL-RASHID, J. ------------------------ S.A.No.274 Of 2002 ---------------------- Dated this the 4th day of February, 2011. J U D G M E N T The following substantial questions of law are formulated at the time of admission: 1) Being a suit for injunction, is not the lower appellate court wrong in considering the question of right of the plaintiff over the varamba, instead of the question of possession? 2) When the defendants have no case that they are in possession of the varamba (plaint schedule property), is not the lower appellate court wrong in dismissing the suit? 3) As long as the report of the commissioner is successfully challenged by the defendants, is not the court below wrong in disbelieving the statement regarding damages? 4) Is not the lower appellate court wrong in finding that the defendants are not liable for the damages? 2. The plaintiff in O.S.No.459 of 1996 on the file of the Munsiff Court, Wadakkancherry is the appellant. The appeal is directed against the judgment and decree in A.S.No.507 of 1998 on the file of the 1st Additional District Court, Thrissur. Suit was filed for permanent prohibitory injunction restraining the ::2:: S.A.No.274 Of 2002 defendants from trespassing into the plaint schedule property or from causing obstruction to the plaintiff in putting up barbed iron fencing through the eastern and southern boundaries of the plaint schedule property and for a decree for damages from the defendants for Rs.3,000/-. The trial court granted a decree of injunction as prayed for and also allowed the plaintiff to realise damages for Rs.2,000/- from the defendants and their assets. The lower appellate court set aside the decree and judgment passed by the trial court and dismissed the suit. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 3. The plaintiff claimed title and possession over plaint schedule item No.1 as per settlement deed dated 22.6.1990 marked as Ext.A1 in the case. It is alleged in the plaint that item No.2 property is in the possession of the plaintiff in continuation of the possession of his predecessor-in-interest. Plaintiff's case is that plaint items 1 & 2 are lying as a contiguous plot and the plaintiff is in enjoyment of the property by effecting cultivation. The eastern boundary of the plaint schedule property is a varamba. The plaintiff has constructed barbed iron fencing on ::3:: S.A.No.274 Of 2002 granite pillars through the southern boundary of his property. According to the plaintiff the adjacent property on the eastern boundary is situated at a higher level of 2 to 8 feet, that people are walking though the varamba located at the eastern boundary of the plaint schedule property, that towards further east of the varamba a water channel is also located, that this varamba is being used by the 3rd defendant for access to his residential building, that the plaintiff has cultivated paddy in the plaint schedule property and that in order to protect his cultivation from cattle trespass the plaintiff had put up fence on the eastern side of the property. It is alleged that there was fence on the eastern boundary even at the time of assignment. Fence on the eastern side is necessary for the purpose of preventing cattle trespass and therefore he had put up a barbed iron fencing on granite pillars on the eastern boundary. Suit was filed for the relief of injunction and damages alleging that the defendants have trespassed into the plaint schedule property and they demolished the fence put up through the eastern and southern boundaries of the property, that they have damaged 6 granite pillars and they pulled those pillars into water channel, that the ::4:: S.A.No.274 Of 2002 plaintiff has suffered a loss to the tune of Rs.3,000/- due to the act of the defendants and therefore sought for the relies claimed in the plaint. 4. Defendants 1 to 3 and 5 filed a joint written statement. In the written statement they have denied the averment in the plaint that the plaintiff is in possession of item No.2 property. The defendants also denied the plaint averments and prayed for dismissal of the suit. It is contended that towards the eastern side of the plaint schedule property a pathway as vazhivaramba with a width of 3 metres is situated and towards the further east a water channel is also situated. The plaintiff has no right over the pathway and the water channel. It is further contended that the plaintiff has no possession over any land which is located at a higher level since the property of the plaintiff is lying at a lower level than the varamba which is situated on the eastern boundary lying at a level difference. According to the defendants plaintiff is making arrangements to annex portions of the public pathway with his property. It is contended that the plaintiff has no manner of right to trespass into the public pathway, that he had constructed a barbed iron ::5:: S.A.No.274 Of 2002 fencing through the pathway, that at the intervention of the police, plaintiff caused to remove the fencing put up by encroaching a portion of the pathway. 5. Plaintiff and defendants adduced oral and documentary evidence. PWs 1 to 3, DWs 1 to 3 were examined and Exts.A1, A2 C1 and C1(a) were marked. 6. PW1 is the plaintiff, PW2 is a witness cited to prove the alleged incident narrated in the plaint, PW3 is the commissioner who submitted Exts.C1 report and C1(a)sketch. DWs 1 & 2 are the defendants 2 & 5 respectively. DW3 is a witness. 7. Both sides admit the demolition of the fence put up through eastern and southern side of plaint schedule property. Trial court appreciated the oral evidence tendered by the plaintiff, defendants and their witnesses. Relying on the commissioner's report the trial court concluded that the removal of the fence was not done by the plaintiff, the trial court believed the evidence tendered by the plaintiff and observed that there are no reasons to institute a suit before the court against defendants other than the trespass and demolition of the boundary located at the ::6:: S.A.No.274 Of 2002 eastern and southern side of the plaint schedule property. The trial court also held that the plaintiff is in possession of the property that lies on the western side of the varamba, that means the court found that the plaintiff is in possession of the property to the varamba on the east. The court further held that cause of action of the suit was also proved by the plaintiff. 8. The trial court also considered the contention of the defendant that the pathway and the water channel are owned by the Panchayath and the plaintiff had encroached upon the same. The commissioner has reported that the construction of barbed iron fencing on the granite pillars is absolutely necessary for paddy cultivation from cattle trespass. The court further observed that considerable damage will be caused to the crops, that fence can only be put up through the higher level i.e., through western extremity of the varamba which is the eastern boundary of the plaint schedule property. On the basis of the said observations and conclusions the trial court held that the plaintiff is entitled to a decree for injunction as prayed for. The trial court allowed the plaintiff to realise Rs.2,000/- from the defendants for the damages caused to the plaintiff. ::7:: S.A.No.274 Of 2002 9. Defendants preferred first appeal. The lower appellate court examined the question as to whether the fence is put up on the varamba or not. After considering the commissioner's report and the evidence tendered by both sides the lower appellate court concluded that it was not proved that there was any fence as alleged in existence two months before the institution of the suit. The lower appellate court also noted the version of the commissioner that the disputed fence is constructed on the varamba. PW1 has also admitted during cross examination that he constructed the barbed iron fencing on the varamba. The varamba is having only a width of 3 to 8 feet and pillars are put on the varamba at a distance of ¼ feet from the western boundary. The lower appellate court further observed that hence it is clear that he has put up the pillars and barbed wire at a place having a width of 3 feet and that the said act will certainly affect the right of the people using the same as a way. On evidence the lower appellate court also found that the plaintiff's property extends only up to varamba and plaintiff has no right over the varamba. The lower appellate court also noted the fact that the plaintiff himself has admitted that the varamba is on the ::8:: S.A.No.274 Of 2002 puramboke land and that there is puramboke land even on the west of the varamba. The lower appellate court after analysing the evidence, lie and situation of the property, evidence on record and all facts and circumstances of the case held that the plaintiff is not entitled to construct a fence on the varamba and he cannot claim possession over the varamba. 10. Suit was filed on 9.12.1996. The fence according to the commissioner would have been constructed on 9.10.1996. The pleadings shows that on the very next day of the construction of the fence the general public obstructed it. The lower appellate court concluded that the plaintiff has no right to construct a fence on the varamba and therefore he is not entitled to get an injunction. The court also examined the question as to whether the fence was destroyed by defendants 1 to 5 as contended by the plaintiff. On facts and evidence the court held that there is no sufficient evidence to find that the fence was destroyed by defendants 1 to 5. In this circumstance the appellate court set aside the decree and judgment and dismissed the suit. ::9:: S.A.No.274 Of 2002 11. It has come out in evidence that the plaintiff had put up a fence on the varamba which is lying on the eastern side of the plaintiff's property. The varamba is lying at a higher level. The public is using the varamba as a pathway. The lower appellate court rightly on facts held that the plaintiff has no right to put up fence on the pathway which is used by the public as of right. It may not be practical to put up any boundary inside the plaintiff's property for the reason that there is level difference between the plaintiff's property and easter varamba. That does not mean that the plaintiff has got any right to put up fence on the varamba which is a public pathway. Since there is no sufficient evidence to prove that the defendants have caused damages to the materials used for fencing, there is justification for the lower appellate court to negative the claim for damages. At the same time the plaintiff has got every right to put up boundary fencing within his property on the eastern and southern boundaries. The plaintiff shall put up fencing on the eastern boundary without encroaching upon the varamba lying on the eastern side. The fencing shall be put up in the boundaries only within the plaint schedule property. ::10:: S.A.No.274 Of 2002 In the result, the appeal is allowed. The judgment and decree passed by the courts below are set aside. The defendants are restrained by a decree of perpetual injunction from trespassing into the plaint schedule property or from causing obstruction to the plaintiff from putting up barbed iron fencing through the eastern and southern boundaries of the plaint schedule property. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-