IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 RSA.No. 775 of 2010(A) --------------------------------- AS.NO.7/2007 OF I ADDL.DISTRICT COURT, ERNAKULAM, OS.NO.1023/2001 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM. .................... APPELLANTS/APPELLANTS/DEFENDANTS 1,3 & 4:- -------------------------------------------------------------------------- 1. THE KALAMASSERY TAXI DRIVERS UNION, NORTH KALAMASSERY,REPRESENTEDL BY ITS PRESIDENT. 2. V.K.AZEEZ,VELLARKODATHU HOUSE,KUTTIKKATU KARA,ALUPURAM.P.O. 3. P.K.LATHEEF,S/O.P.A.KHADER, PRIYAMKUNNATH HOUSE,KOONAMTHAI,EDAPPALLY. BY ADVS. SRI.M.M.MONAYE, SRI.M.PAUL VARGHESE. RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 2,5 & 6: ------------------------------------------------------------------------------------------------------ 1. THE FEDERAL BANK LTD.,A BANKING COMPANY INCORPORATED UNDER THE COMPANIES ACT HAVING REGISTERED OFFICE AT ALUVA WITH BRANCHES ALL OVER INDIA, INCLUDING ONE AT KALAMASSERY AT ERNAKULAM DISTRICT. 2. SRI.P.V.ASHRAF,PONATHIL HOUSE,HIGH SCHOOL,BYE-PASS ROAD,KALAMASSERY-PRESIDENT, KALAMASSERY TAXI DRIVERS UNION. 3. THE EXECUTIVE ENGINEER,NATIONAL HIGHWAY (A.D.B.DIVISION),DIVISION NO.1,KOONAMTHAI, EDAPPALY. 4. THE STATE OF KERALA,REPRESENTED BY ITS SECRETARY,PUBLIC WORKS DEPARTMENT,GOVERNMENT SECRETARIAT,TRIVANDRUM. R1 BY ADV. SRI.VARGHESE C.KURIAKOSE (CAVEATOR). THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- RSA No.775 of 2010-A ------------------------------------- Dated 27th July 2010 Judgment Defendants 1,3 and 4 in OS No.1023/01, along with other defendants suffered concurrent findings against them, are the appellants. The parties and facts are hereinafter referred to as they are available before the Trial Court. 2. The case of the plaintiffs was that they were in absolute possession and enjoyment of 5 cents of land and a double storeyed building thereon. According to them, by Ext.A2 sale deed, they purchased 6 cents of property and constructed a double storeyed building therein. A portion of the property was acquired by the Government for widening the National Highway. The allegation was that on 11.09.2000 after the Onam holidays, when the bank was re-opened, it was noticed that a concrete platform was erected in the plaint schedule RSA 775/10 2 property in front of the bank's building without authority. According to the plaintiffs, the defendants have no manner of right over any portion of the property owned and possessed by the bank. Hence the suit. 3. Defendants 1, 3 and 4 contested the suit and pointed out that the plaintiffs have no locus standi to institute the suit. They disputed the title and possession of the plaintiffs over the suit property. According to them, the first defendant had been occupying a portion of the land in the puramboke land on the eastern side of the suit property since 1966 and their office had been functioning there. Pointing out that they have not encroached into any portion of the suit property, they prayed for dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A11 from the side of the plaintiffs. The defendants examined DW1 and had Exts.B1 to B21. CW1 court witness was also examined and Exts.X1 and X2 witness' exhibits were also RSA 775/10 3 marked. 5. The Trial Court on a consideration of the materials before it, came to the conclusion that the grievance of the plaintiffs was true and accordingly decreed the suit in favour of the plaintiffs. 6. Defendants 1, 3 and 4 carried the matter in appeal as AS No.7/07 before the District Court, Ernakulam. The District Court, on an independent consideration of the materials before it, found that the Trial Court has correctly analysed the evidence on record and has come to the right conclusion. Accordingly, the appeal was dismissed. In this appeal, the said Judgment and decree are assailed. 7. The learned counsel for the appellants pointed out that the bank was not in possession of 5.75 cents of property as contended by them after the acquisitions. There was no attempt from the side of the courts below to verify the extent of property now possessed and owned by the bank and the sketch relied on by the courts below is not correct. Even according to the RSA 775/10 4 Trial Court, there is slight difference between Ext.C2 sketch and the certified sketch, namely Ext.X1 and the Village Officer's sketch Ext.A4. It is also pointed out that the appellants had filed IA Nos.5009/2005 and 5289/2005 to set aside the Commissioner's report or to remit the report for fresh report in accordance with the re-survey number. The grievance is that the applications were not even considered by the Trial Court and that has caused considerable prejudice to the appellants. This resulted in miscarriage of justice and accordingly, it is contended that the Judgment and decree of the Trial Court shall be set aside. 8. There is absolutely no basis for the above contentions. The Trial Court judgment says that it has considered the contentions regarding variance between Exts.X1 and C2 plan. Ext.A4 is the sketch prepared by the Village Officer. Ext.X1 is the resurvey sketch. The Trial Court has observed hat there is slight difference when compared with Ext.C2 sketch prepared by the RSA 775/10 5 Commissioner. The lower Appellate Court has immediately noticed that Ext.C2 sketch relates to the entire property initially acquired whereas the resurvey sketch and the Village Officer's sketch show the property after acquisition. There was no contention by the appellants that the bank was occupying a portion of the puramboke land. It is seen from the Appellate Judgment that the lower Appellate Court has considered in considerable detail and they have elaborately considered the Commissioner's report and evidence and also Ext.A4. After elaborately considering the various contentions raised by both sides, the lower Appellate Court came to the conclusion that the Commissioner has correctly identified the property with regard to the survey record and title deed and there is nothing to show that the sketch prepared by the Commissioner is incorrect. The lower Appellate Court also came to the conclusion that the defendants have constructed the bunk encroaching into the plaint schedule property. The plea of adverse possession and limitation RSA 775/10 6 was also found against. It could thus be seen that the contentions now raised have no basis. All these aspects have been considered by the courts below and they have come to the identical conclusion. It is a finding of fact. It is not shown that the findings are either perverse or unwarranted by evidence on record. There is nothing to show that the courts below have either omitted to take note of any relevant aspect or has taken into consideration any irrelevant aspect. The courts below have given cogent reasons as to why Ext.C2 was accepted to find in favour of the plaintiffs. The reasonings seem to be good and acceptable. The result is that this appeal is without merits and it is liable to be dismissed. P.BHAVADASAN, JUDGE sta RSA 775/10 7 RSA 775/10 8