IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 RSA.No. 570 of 2006() --------------------- AS.107/1997 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.250/1994 of M.C.,PATHANAMTHITTA .................... APPELLANTS : APPELLANTS/PLAINTIFFS -------------------------------------- 1. NARAYANA PILLAI RAJAPPAN NAIR, THOMPIL HOUSE, KEEZHUKARA MURI, KOZHENCHERRY VILLAGE. 2. NARAYANA PILLAI, KRISHNAN NAIR, OF DO. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: RESPONDENTS/DEFENDANTS ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, PATHANAMTHITTA. 2. ASSISTANT EXECUTIVE ENGINEER, ROAD DIVISION, PATHANAMTHITTA. BY GOVERNMENT PLEADER SRI.L.G.SURESH BABU THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 570 OF 2006 =========================== Dated this the 17th day of March, 2008 JUDGMENT Plaintiff in O.S.250/1994 on the file of Munsiff Court, Pathanamthitta are the appellants. Respondents are the defendants. Appellants instituted the suit for a permanent prohibitory injunction restraining respondents State of Kerala and the Assistant Executive Engineer, Road Division, from trespassing into the plaint schedule property. Learned Munsiff as per judgment dated 25.6.1997 dismissed the suit. Appellants challenged the judgment before the District Court,Pathanamthitta in A.S.16/07. Learned District Judge on reappreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for appellants was heard. R.S.A.570/2006 2 3. The fact that appellant has title over 2.5 cents of land in survey No.338/4/1 of Mallappuzhasseri Village is not in dispute. There is a shop building in that property. It is admitted fact that Kozhencherry Market Road runs through the southern side of the plaint schedule property. Case of the respondents is that appellants encroached into a portion of the road puramboke and made the construction in the road puramboke and to evict appellants and others from encroached portions and to widen the road steps in accordance with law was taken and then the suit was filed. Case of appellants was that the entire plaint schedule property including the disputed encroached portion belongs to them and respondents have no right over that property. 4. Learned Munsiff on the evidence found that appellants have encroached upon a portion of the road puramboke land and respondents are entitled to evict appellants from that portion of the property in accordance with law. First appellate court R.S.A.570/2006 3 reappreciated the evidence and confirmed that factual finding. Ext. B1 judgment in O.P.6328/1994 dated 13.5.1994 shows that shop owners similarly placed had challenged the steps taken by respondents before this court and the O.P was ultimately dismissed as part of buildings are in road puramboke land. True, appellants are not parties to that O.P. But it shows that there was constructions of buildings encroaching into the road puramboke. Ext.B2 shows that a direction was issued to the surveyor to demarcate the encroached portion of the road puramboke and Sl.No.17 in the list so prepared is that of the first appellant and it shows that 10 square meters was encroached upon by appellants. In the light of the evidence courts below found that appellants are not entitled to the decree for injunction sought for. In the light of the factual findings, no substantial question of law involved in the appeal, appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE R.S.A.570/2006 4 tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006