IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 RSA.NO. 1215 OF 2009() ---------------------- AS.64/2006 OF SUB COURT, KASARAGOD OS.470/2001 OF MUNSIFF COURT, HOSDRUG .................... APPELLANT/APPELLANT/PLAINTIFF --------------------------------- M.P.MOHAMMED, AGED 48 YEARS, S/O. ABDULLA MUSALIYAR, RESIDING AT MANIKOTH, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): RESPONDENT/DEFENDANT ----------------------------------- KANHANGAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KANHANGAD POST, HOSDURG VILLAGE, KASARAGOD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1215 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of November, 2009 J U D G M E N T --------------------- Aggrieved by the dismissal of the suit for prohibitory injunction and its confirmation by the first appellate court plaintiff has come up in Second Appeal. Suit concerned four items of properties. Item Nos.1 to 3 belonged in jenm to one H. Ramakrishna. Item No.4 as originally stated in the plaint was obtained by the appellant on kumki right. Appellant and others purchased item No.4 as per Ext.A2, assignment deed dated 15.3.1995. It is also the case of the appellant that himself and others obtained purchase certificate in respect of item Nos.1 to 3 as per Ext.A1. Appellant is managing the property on behalf of other co-owners also. There is a public road along the east of the suit property. During rainy season that road was partially damaged. Appellant apprehends that respondent-Municipality is attempting to trespass into the suit property for the purpose of formation of a new road. Respondent while not disputing title and possession of others over item Nos.1 to 3 claimed that the description of item No.4 is not correct. According to the respondent, appellant or anybody else have no right, title or interest over item No.4 which is a road puramboke R.S.A. NO.1215 of 2009 -: 2 :- vested with it. It is also contended by the respondent that road was formed along the properties comprised in the survey numbers referred to in the written statement about eleven months back. In the light of that contention plaint was amended and relief was confined to that part of the suit property excluding the newly formed road. Respondent filed written additional statement contending that there is no violation of order of injunction as alleged by the appellant and that appellant has no right to claim injunction over any portion of item No.4. Trial court found that appellant was not able to prove title and possession claimed by him in respect of item No.4 and consequently dismissed the suit. That was confirmed by the first appellate court against which this Second Appeal is preferred. Learned counsel for appellant contended that finding of the courts below is not correct. 2. Exhibit A2 is the assignment deed as per which appellant along with other co-owners claim title and possession over item No.4. Courts below observed that in Ext.A2 dealing with the schedule descriptions in respect of item Nos.1 to 3 there is a recital that the property includes kumki land. It has also come in evidence that on the north and east of item Nos.1 to 3 there is a road. Commissioner has reported in Ext.C6, plan after measurement of the properties with the relevant records that item No.4 is the plot marked as 'AFGMN' which is comprised in R.S. No.206/2 measuring 4 cents. Claim of appellant over item No.4 is that himself and others are enjoying the R.S.A. NO.1215 of 2009 -: 3 :- said item for the beneficial enjoyment of item Nos.1 to 3 on kumki right. In the amended plaint it is stated that appellant and others have got natural right to use the kumki land. It has come in evidence that appellant and others have applied for assignment of item No.4 under the provisions of the Kerala Land Reforms Act in LA No.3/2004. That application was preferred after the institution of the suit. From Exts.C1, C3 and C5 courts below observed that it is not possible to identify whether item No.4 has any common boundary with item Nos.1 to 3 referred to in Ext.A2. Trial court also observed that in spite of the claim of appellant that himself and others are in possession of item No.4, Commissioner could not find any physical boundary for item No.4. Nor did the Commissioner find any improvements made in that portion. On the other side respondent produced Ext.B1 which described disputed item No.4 as comprised in R.S.No.206/2A while in the plaint schedule item No.4 is described as comprised in . R.S.No.206/2. Exhibit B2 is the field map of the property comprised in R.S.No.206/2A where the property comprised in that survey number is mentioned as road. Appellant admitted that abutting that property there is the road. Leaned Munsiff observed that under Section 207 of the Kerala Municipality Act, Municipality has right over road puramboke notwithstanding provisions in the Land Conservancy Act. That finding was based on the non-obstante clause in Sec.207 of the Kerala Municipality Act. Courts below found that appellant was not R.S.A. NO.1215 of 2009 -: 4 :- able to prove title and possession over item No.4. At any rate that appellant has no title over item No.4 is revealed from his subsequent conduct in filing application for assignment of that item. It is settled position of law that no injunction could be granted against a true owner unless such person has a settled possession and has a right to remain in such possession under at least any colour of title. On going through the judgment and decree under challenge I find that no substantial question of law is involved requiring admission of this Second Appeal and notice to respondent. 3. Learned counsel for appellant requested that appellant may be permitted to pursue the application for assignment made as per L.A. No.3 of 2004 and that the decision in this Second Appeal may not affect that right of the appellant. I make it clear that it will be open to the appellant to pursue the application if otherwise he is entitled to such a course and that dismissal of this Second Appeal will not affect that right of the appellant. With the above observations, Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.1215 of 2009 -: 5 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.1215 of 2009 =================== J U D G M E N T 24TH NOVEMBER, 2009