IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 RSA.NO. 267 OF 2008() --------------------------------- AS.22/2005 OF SUB COURT, QUILANDY OS.53/1998 OF MUNSIFF COURT, QUILANDY .................... APPELLANT – APPELLANT/PLAINTIF: ------------------------------------------------- KURUNKATTIL MALU AMMA, D/O.KALYANI AMMA, SWASTHAM, EDAKKARA AMSOM, AND DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------- 1. M.V.MOHANAN, S/O.UNNIPERAVAN, AGRICULTURIST, MEETHAL VEETTIL HOUSE, EDAKKARA AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE DIST. 2. BHASKARAN, S/O.CHATHAN, AGRICULTURIST, MUNNORE HOUSE, EDAKKARA AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE DIST. 3. C.MAHESH, S/O.MADHAVAN NAIR, AGRICULTURIST, CHAKYATH HOUSE, EDAKKARA AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 4. THALAKULATHUR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, THALAKULATHUR AMSOM AND DESOM, KOZHIKODE DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ================================= R.S.A. NO.267 of 2008 ================================= Dated this the 30th day of March, 2010 J U D G M E N T This appeal arises from the concurrent finding entered by the courts below that appellant failed to establish the alleged trespass. According to the appellant/plaintiff plaint A schedule property belonged to her as per partition deed No.95/1970 and there was a lane on the north and west of the said property. Later that lane was converted into a road having a width of 2¾ metres and that road was taken over by the local authority. Appellant alleged that respondents are trying to trespass into the road and widen the road by making use of a portion of plaint A schedule property. Later plaint was amended alleging that on 16.2.1998 respondents trespassed into the suit property and widened the road making use of a portion of the said property. Plaint B schedule is the alleged trespassed portion. Amended plaint included mandatory injunction for restoration of plaint B schedule to its original position and recovery of damages. Respondents denied the allegations and contended that respondent Nos.1 to 3 are not necessary parties to the suit as they have nothing to do with the alleged widening of the R.S.A. No. 267 of 2008 -: 2 :- road. They claimed that road was formed in the year 1970 at the instance of the local authority. It is incorrect to say that width of the road is only 2¾ metres but the road has a width of 3 to 5 metres. Respondent No.4 contended that there was no widening of the road as alleged and instead what was undertaken by it was only improvement of the road. On the side of appellant Exts.C1 to C12 were marked. Trial court found that reports are not acceptable and that even as per the reports there is no deficit in plaint A schedule in the extent stated and appellant is in possession of more extent than what is stated in Ext.A1. It is also seen from Exts.B1 to B3, B5, B14 and B15 that during 1977-78 there was only improvement works done in the road. The alleged trespass on 16.2.1998 was found against. Accordingly trial court dismissed the suit. That was confirmed by the first appellate court. Hence this Second Appeal urging by way of substantial questions of law whether appellant has proved her title and possession of the suit property, whether courts below could have found that the appellant ought to have produced documents to show exact extent of the land which she relinquished earlier and whether the first appellate court having found that reports of the Advocate Commissioner are not helpful should have remitted the same to the Commissioner for fresh report. R.S.A. No. 267 of 2008 -: 3 :- 2. This is a suit for prohibitory injunction and recovery of damages, cause of action being alleged trespass on 16.2.1998. As stated by learned counsel for the appellant none of the reports or plans (Exts.C1 to C12) would show that there was any such trespass on 16.2.1998. On the other hand as seen in Exts.B1 to B3, B5, B14 and B15 and as found by the courts below there was only improvement work done in the road during 1977-78 and that alleged trespass on 16.2.1998 is not proved. If the alleged trespass on that day is not proved then the question of seeking mandatory injunction and recovery of damages did not arise. There was also no reason to remit the reports and plans to the Commissioner. In the circumstances courts below found on evidence that the allegations against the respondents which gave the appellant a cause of action for seeking injunction and damages have not been established and consequently appellant was denied reliefs prayed for. On going through the judgments and hearing learned counsel I find that no substantial question of law do arise for a decision. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv