IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 RSA.NO. 1062 OF 2009() ---------------------- AS.189/2005 OF I ADDL. DISTRICT COURT, PALAKKAD OS.71/2001 OF MUNSIFF COURT, CHITTUR .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------------------------------------- PAUL VARGHESE, S/O. VARGHESE, AGED 38 YEARS, RESIDING AT THEKKEKARA VEEDU, PATTUKAD, KAYARADI VILLAGE, CHITTUR TALUK. BY ADV. SRI.JOHNSON P.JOHN SRI.BABY MATHEW RESPONDENT(S): APPELLANT/DEFENDANT ---------------------------------- 1. ASSISTANT ENGINEER, POTHUNDY IRRIGATION PROJECT, KAYANADI SECTION, AYANAMPADAM, NEMMARA, PALAKKAD DISTRICT. 2. ASSISTANT ENGINEER, POTHUNDY SUB DIVISION, POTHUNDY IRRIGATION PROJECT, AYANAMPADAM, NEMMARA, PALAKKAD DISTRICT. 3. KERALA GOVERNMENT, REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD. BY GOVERNMENT PLEADER SHRI P.K. JAYAKRISHNAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO. 1062 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of March, 2010 J U D G M E N T --------------------- Government Pleader takes notice for respondent Nos.1 to 3. 2. Appellant who was successful in getting a decree for prohibitory injunction in respect of the suit property but lost in the first appellate court has come up in Second Appeal. Substantial question of law urged in the Second Appeal is whether first appellate court was justified in non-suiting the appellant in the light of Ext.C1, report of the Advocate Commissioner. 3. Suit property according to the appellant belonged to him as per Ext.A1, assignment deed No.1887 of 1986. Kayaradi Branch Canal of Pothundi Irrigation Project is passing through the side of suit property. While so allegedly for renovation work of the Canal respondent 1 and 2 who are Assistant Engineers of the Irrigation Department under respondent No.3 attempted to trespass into the suit property which has well defined boundaries on sides. Hence the suit. Respondents contended that suit property as described in the plaint schedule does not belong to the appellant and the R.S.A. No.1062 of 2009 -: 2 :- disputed portion belong to the Irrigation Department. There are certain trees within the survey boundary stones of the property of Irrigation Department which the appellant removed and thereafter instituted the suit. It is incorrect to say that respondents 1 and 2 attempted to trespass into the suit property. Advocate commissioner appointed in the case inspected the properties with the assistance of the Taluk Surveyor and measured the properties. Exs.C1 and C2 are the report and plan. Based on Ext.C1 which stated that suit property has well defined boundaries by way of barbed wire fencing and that the disputed mango and coconut trees are situated within the suit property, learned Munsiff granted a decree as prayed for. On appeal at the instance of respondents learned Additional District Judge was not impressed by the claim of the appellant regarding possession based on the barbed wire fencing on the boundaries of the property. It was held that the disputed trees are situated in a different survey sub division in which appellant has no claim of right or possession as per Ext.A1, version of appellant that respondent Nos.1 and 2 who are responsible officers of the Irrigation Department attempted to trespass into the property is not acceptable and consequently allowed the appeal. It is contended by learned counsel for the appellant that in the light of R.S.A. No.1062 of 2009 -: 3 :- Ext.C1 and in the absence of any document to show that the disputed property belonged to the Irrigation Department first appellate court was not correct in refusing to grant relief to the appellant. 4. Mere fact that as on the date of suit, suit property was found to be having barbed wire fencing on its sides is not by itself sufficient to grant a decree in favour of the appellant. It is settled position of law that no injunction could be granted in favour of the true owner. As per Ext.A1, document of title relied on by the appellant his claim is in Sy.No.699/4 and 99/3 while survey made by the Taluk Surveyor with the aid of relevant records revealed that the disputed mango and coconut trees are standing in the property comprised in Sy.No.99/4 over which appellant even as per his claim has no right. In the light of Ext.C2 first appellate court was of the view that finding of the Advocate Commissioner in Ext.C1 that the disputed trees are standing in the property of the appellant as per Ext.A1 cannot be correct. First appellate court has observed that there is nothing to show that respondent Nos.1 and 2 attempted to trespass into the property comprised in Sy.No.699/4 and 99/3 belonging to the appellant as per Ext.A1. In the light of the above appellant cannot seek injunction in respect of the disputed portion. R.S.A. No.1062 of 2009 -: 4 :- But I make it clear that this being only a suit for injunction it will be open to the appellant if he is otherwise entitled, to establish his title over the suit property and seek appropriate relief. With the above observations, Second Appeal is dismissed in limine. Interlocutory Application No.2375 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv