IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 SA.No. 617 of 1998() -------------------- AS.122/1993 of ADDL.DISTRICT COURT, ALAPPUZHA. OS.478/1989 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANT(S): RESPONDENTS/PLAINTIFFS: ------------------------------------------------------------------- 1. RADHAMONY AMMA, LAKSHMI SADANAM, THONDANKULANGARA WARD, AMBALAPUZHA TALUK, ALAPPUZHA. 2. V.KRISHNAN NAIR OF ..DO..DO.... BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): APPELLANT:DEFENDANT: -------------------------------------------------------------------- THE ALLEPPEY MUNICIPAL COUNCIL, REPRESENTED BY THE MUNICIPAL COMMISSIONER. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------- SA No.617 of 1998-F ------------------------------------- Dated this the 16th day of February 2011 Judgment The plaintiffs are the appellants. By Ext.A5 notice dated 6.5.1989, the defendant in the suit directed them to vacate from 63.608 square metres of property which they alleged to have trespassed upon, while constructing a compound wall. According to them, the construction of the compound wall was carried out after obtaining necessary sanction from the defendant. It is also alleged that they were allowed to put up a shop room as per Ext.A6 permit, based on Ext.A6(a) plan. They, therefore, contended that the notice is bad in law and cannot be enforced. Hence the suit for perpetual injunction. 2. The defendant resisted the suit and they sought to justify Ext.A5 notice. 3. On the basis of the above pleadings, necessary issues were raised by the trial court. The SA 617/98 2 evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A6(b) from the side of the plaintiffs. The defendant examined DWs 1 and 2 and had Ext.B1 marked. Exts.C1 and C2 commissioner's report and plan were also marked and CW1 was examined as court witness. 4. The trial court, after an evaluation of the evidence, found that the claim of the defendant is without basis and accordingly decreed the suit. 5. On appeal by the defendant as AS No.122/93 before the District Court, Alappuzha, the lower appellate court found that the claim of the defendant that there was a trespass in respect of 63.60 sq.metres was unfounded and there was only a nominal encroachment of 400 sq.links of property. The lower appellate court, therefore, modified the decree of the trial court by granting permission to the defendant appellant to recover 400 sq.links of property. It is the said judgment and decree that are assailed in this second appeal. SA 617/98 3 6. Notice is seen issued on the following questions of law raised in the second appeal : a)Where a suit which is one for permanent injunction restraining the defendant from enforcing Ext.A5 notice issued under Section 217 of the Kerala Municipalities Act, did not the lower appellate court commit an error or law in holding that the defendant is entitled to recover a portion of property from the plaintiff ? b)Can the court grant a decree for recovery of possession in favour of the defendant, in a suit for permanent injunction restraining the defendant from enforcing its notice. ? c)Assuming that the lower appellate court was justified in accepting Exts.C1 and C2, was the court below justified in affirming Ext.A5 in part and permitting its enforcement in rest ? d)Where Ext.A5 as such was found to be unjustified, should not the lower appellate court have affirmed the SA 617/98 4 decree of the trial court ? e)Should not the lower appellate court have found that where the plaintiff continues in possession of the plaint schedule property from 1966, the defendant cannot be permitted to enforce Ext.A5 notice in whole or in part ? 7. The learned counsel for the appellants very vehemently contended that after having issued Ext.A6 for constructing the shop room as well as Exts.A1 and A2 for the construction of the compound wall, it comes with little grace from the defendant now to say that there is an encroachment. The learned counsel also contended that there is, in fact, no encroachment at all and the claim of the defendant is unwarranted. 8. While the trial court held in favour of the appellants, the lower appellate court was of the view that going by the commissioner's report and plan, there was an encroachment of 400 sq.links of property. The lower appellate court has given convincing and cogent reasons for arriving at such a conclusion. There is no reason to SA 617/98 5 interfere with the said findings. The defendant cannot enforce Ext.A5 as it stands now. It will, however, be open to the defendant to proceed in accordance with the judgment of the lower appellate court afresh after giving due consideration to Ext.A6(a) plan on the basis of which Ext.A6 permit was granted and after hearing the plaintiffs. The defendant shall also consider the aspect regarding existence of the building while taking fresh steps in the matter. Subject to the above modification, the second appeal is dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 617/98 6