IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 AS.No. 304 of 1999() --------------------------- OS.1/1995 of SUB COURT,NEYYATTINKARA .................... APPELLANT(S): DEFENDANTS 1 TO 3 AND 5 TO 9 ------------------------- 1. LEKSHMANAN NADAR PONNUMONY, THATHAMATH VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE. 2. LEKSHMANAN NADAR JOHNSON, BROTHER OF IST APPELLANT, DO. DO. 3. LEKSHMANAN NADAR STEEPHEN, BROTHER OF 2ND APPELLANT, DO. DO. 4. RAJAYYAN NADAR CHRISTOPHER, THATHAMATH THEKKE VEEDU OF DO. DESOM. 5. RAMAN NADAR ARJUNAN, MELE THATHAMATH VEEDU OF DO. DO. DEOSM. 6. ARJUNAN MANIYAN, SON OF 5TH APPELLANT , DO. DESOM. 7. APPI NADAR MUTHAYYAN, THUNDUVILA VEEDU PURAYIDAM OF DO. DESOM. 8. PALAYYAN NADAR NELSON, THUNDUVILA VEEDU OF DO. DESOM. BY ADV. SRI. P.R.VENKETESH RESPONDENT(S): PLAINTIFF & 4TH DEFENDANT. ------------------------ 1. PONNAYYAN NADAR, SON OF NEELAKANTAN NADAR, THATHAMATH THEKKEPUTHEN VEEDU, KARUMANOOR DESOM, PARASSALA VILLAGE. 2. THANKAPPAN, HUSBAND OF LEELA, THATHAMATH THEKKE VEEDU OF KARUMANOOR DESOM, PARASSALA VILLAGE. ADV. SRI.M.K.CHANDRA MOHANDAS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/06/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. 2681/1999 IN AS. NO.304/1999 CLOSED 07/06/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.304 OF 1999 ............................................. Dated this the 7th day of June, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree in O.S.No.1.1995 of the Subordinate Judge's Court, Neyyattinkara. The suit is one for declaration, consequential relief of prohibitory injunction and for damages. The court below found that the plaintiff is having title and possession over the plaint schedule property and restrained the defendants and their men from trespassing into the plaint schedule property and also granted damages of Rs.24,500/=. It is against that decision, the defendants have come up in appeal. 2. Heard. It is the case of the plaintiff that he had purchased the plaint schedule property by virtue of a registered document in the year 1988. There was a lane having a width of 3 feet running through the southern boundary of the property. With an intention to widen the pathway, the defendants had trespassed and demolished the compound wall of the property as well as a portion of : 2 : A.S.NO.304 OF 1999 the cattle shed and shop building on 29.12.1994. The plaintiff had sought for declaration, consequential relief of prohibitory injunction as well as for damages. The defendants on the other hand would contend that the road belonged to the panchayat and the plaintiff had constructed a compound wall by trespassing into the road and therefore, the plaintiff is not entitled to claim any relief and all the more the suit is bad for non joinder of Parassala panchayat as a necessary party. 3. In the trial court, Exts.A1 and A2 series, B1 to B4 and C1 to C2(a) were marked. PWs 1 and 2 and DWs 1 to 4 were examined. The court on a consideration of the materials granted a decree in favour of the plaintiff as prayed for less Rs.500/= as damages, ie Rs.24,500/=. It is against that decision, the defendants have come up in appeal. 4. The learned Subordinate Judge first had considered about the issue of non-joinder of necessary parties. The court below held that except the mere averment in the written statement, materials are not forthcoming to show that at any point of time the property belonged to the : 3 : A.S.NO.304 OF 1999 panchayat and it is a panchayat property. If a person had trespassed into the panchayat road and had reduced it into his possession by constructing a compound wall, the panchayat would not have kept quite. The public also would not have kept quite. Therefore the finding of the learned Sub Judge that materials are absent to show any sort of interest for the panchayat appears to be correct. Further, a declaration without the panchayat being in the party array would not be binding on them as well. Therefore I find that the suit is not bad for non-joinder of necessary parties. 5. The next question is regarding the title and possession. The plaintiff is claiming his right over the property. The plaint schedule is described as B schedule property. The anterior title is Ext.A1 and item 3 of B schedule to that document is the present plaint schedule property. The defendants are not claiming any right or possession over the property but they would contend that it is a part and parcel of the panchayat road. It is also not established. So under this circumstance, the court : 4 : A.S.NO.304 OF 1999 considered the validity of Ext.A1 and found out that property belonged to the plaintiff was having an extent of 10 cents. The Commissioner on identification of the property with respect to the title deed found that he is having title over 10 cents of property. The court had also considered this question and it is seen that the plaint schedule property is marked as ABCD in Ext. C2 plan. So, the plan would show the place where the house is situated, where the shop is situated and the cattle shed is situated. The extent of the property (ABCD) as per the plaint schedule is 10 cents. So the Commissioner's plan and report pin pointedly states that ABCD is the property comprised in Ext.A1 and the plaintiff is having title over that property. The commissioner has also located the panchayat road having a width of 3.75 meters but it is far away from the plaint schedule property. Therefore the court rightly granted a declaration with respect to the title in favour of the plaintiff. 6. So far as demolition is concerned, the commissioner who visited the property immediately after the issuance of : 5 : A.S.NO.304 OF 1999 the suit had calculated the approximate damage at Rs.24,500/=. The commissioner would submit that six loads of bricks, 2 loads of granite stones etc are necessary and according to him for the bricks it will cost Rs.21,000/=, for the granite Rs.1,500/= for labourers Rs.1,000/= and for the tiles Rs.1,000/= making it a total of Rs.24,500/=. The Commissioner had clearly noted out the damages caused to the compound wall as well as to the building. In order to prove that it has been done by the defendants, PW2 was examined and PW2 has spoken supporting the version of PW1. The court below rightly held that there are only minor contradictions here and there which does not vitiate the evidence of PWs 1 and 2 which are otherwise consistent and acceptable. The court also found that the Commissioner's report is acceptable. The defendants had relied upon some documents which would only show that the criminal case lodged against them had ended in acquittal. But that will not have much bearing in a civil case where the preponderance of probabilities will weigh. Just because a case filed by the : 6 : A.S.NO.304 OF 1999 neighbouring owner on the other side has been dismissed, it does not mean that the plaintiff is not entitled to damages. The evidence reveal that there had been an act by the defendants to widen the pathway through some one else's property without having their consent and knowledge and that had resulted in the suit. So from this discussion, I find that the court below has granted an appropriate decree and it does not call for any interference. Therefore the appeal fails and the same is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. cl : 7 : A.S.NO.304 OF 1999 M.N. KRISHNAN, J. ........................................... A.S.NO.304 OF 1999 ............................................. 7th day of June, 2010. J U D G M E N T