IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 SA.No. 50 of 2000(E) ------------------------------ AS.35/1993 of PRINCIPAL SUB COURT,IRINJALAKUDA OS.1658/1988 of ADDL.MUNSIFF COURT,IRINJALAKUDA .................... APPELLANT(S): IST RESPONDENT/PLAINTIFF ---------------------------------------------------------------- APPUKKUTTAN, S/O. KARAPPAN, 58 YEARS, MULLOLI HOUSE, PERAMBRA VILLAGE, THRISSUR DISTRICT. BY ADVS. SRI.RENJITH THAMPAN SRI.V.M.KRISHNAKUMAR RESPONDENT(S): APPELLANTS/RESPONDENTS 2,3/ DEFENDANTS ------------------------------------------------------------------------------------------------ 1. KOCHAYYAPPAN, ALIAS KUNJAYYAPPAN, THEKKEDATH VEETIL, PERAMBRA VILLAGE, MUKUNDAPURAM TALUK. 2. VALLOTHI, W/O.VELAYUDHAN, DO. DO. 3. LEELA, W/O. MADHAVAN, KAKKANADAN HOUSE, KANAKAMALA, KODAKARA VILLAGE, THRISSUR DISTRICT. 4. OMANA, W/O.SIVARAMAN, VITHAKKAT HOUSE, PUTHENCHIRA P. O., THRISSUR DT. 5. RAMANI, W/O. MANI, PLARATH HOUSE, VADAMA, MALA 6. THANKA, W/O. MANI, ARIMANPULI HOUSE, CHIRANGARA DESOM, EAST KORATTY P.O., THRISSUR DISTRICT. 7. KUMARAN, S/O. VELAYUDHAN, THEKKEDATH HOUSE, PERAMBRA, THRISSUR DISTRICT. tss S.A. NO.50/2000 8. AYYAPPANKUTTY, DO. DO. 9. RAJAN, DO. DO. 10. BABU, DO. DO. 11. KERALA STATE REPRESENTED BY DEPUTY COLLECTOR, THRISSUR. 12. THE CHALAKKUDY MUNICIPALITY REPRESENTED BY SECRETARY, MUNICIPAL OFFICE, CHALAKKUDY. BY ADV. SRI.SHEEJO CHACKO R1 BY BY SR.GOVERNMENT PLEADER SRI.M.R.SABU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ---------------------------- S.A.No. 50 of 2000 --------------------------------- Dated this the 3rd day of June, 2011 JUDGMENT The plaintiff, who was non-suited by the lower appellate court has come up in appeal. 2. The facts are as follows: The plaint A schedule property belonged to the plaintiff having obtained the same under Ext.A1 dated 17.05.1979. There was a Puramboke channel bund which commenced from the north-western corner of the plaint A schedule property and leading towards the western side. It had a width of 12 feet and it is comprised in survey No.495 of Perambra Village. The properties of the defendant Nos.1 and 2 are lying on the southern side of the aforesaid puramboke channel bund. Both plaintiff and the defendants used to travel along the bund of the puramboke channel to reach their respective properties. The municipal road has been laid recently on the western side of the property of the defendants. Hence the defendant Nos.1 and 2 have got direct access to the said municipal road. Thereafter, S.A.No. 50 of 2000 2 they annexed portion the bund of the puramboke channel to their properties. Though complaints were made the authorities no action was taken. The plaintiff had issued a notice to the State as well as the local authorities informing them about the encroachment and seeking for appropriate actions from them. The third defendant is liable to evict the encroachers. The inaction on the part of the authorities compelled the plaintiff to approach the court for necessary reliefs. 3. Defendants 1 and 2 filed a joint written statement challenging the maintainability of the suit allegations in the plaint. They disputed that the canal bund was ever used as a way. According to the defendants there is no such property as scheduled in the plaint. They disputed that any portion of the puramboke land was annexed and also contended if found to be in possession they have perfected title and adverse possession and limitation. On the basis of these contentions, they prayed for a dismissal of the suit. 4. It appears that during the pendency of the suit the second defendant passed away and his legal heirs are brought S.A.No. 50 of 2000 3 on the party array as additional defendants 5 to 13. 5. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A6 from the side of the plaintiff. Defendants examined as DWs 1 to 3. Exts.C1 to C3 are the reports and plan. The trial court on an evaluation of the evidence in the case found that there is an encroachment as alleged in the plaint and that the claim of adverse possession and limitation has not been substantiated. The findings that the defendants 3 and 4 are bound to take such necessary action to protect the road and the decree was passed in the following terms. In the result, the suit is decreed and the third defendant is directed to take recourse to the provisions of law with regard to the puramboke land in dispute which is shown in Ext.C3 plan as A and B within three months from this date. It is made clear that the state will have every right to deal with the said property in any manner it likes. The defendant Nos.1 and 2 are restrained from causing any obstruction to travelling through the puramboke bund by the plaintiff. Ext.C3 plan will form part of the decree. But the respective parties are directed to suffer their respective costs. 6. The aggrieved defendants carried the matter in appeal S.A.No. 50 of 2000 4 as A.S.35/1993 before the Sub Court, Irinjalakuda. The lower appellate court by strange reasoning, allowed the appeal and dismissed the suit. The lower appellate court opined that no civil rights are involved and even if there was any the plaintiff had only a constitutional right for which the remedy lies elsewhere. The lower appellate court also took the view that even assuming that there is some encroachment the court cannot compel the authorities to take such actions are necessary. Further findings was that unless the plaintiff claimed right of easement, the suit is not maintainable. Accordingly, the appeal was allowed and the suit was dismissed. 7. Notice is seen issued on the following substantial questions of law: 1. Cannot a suit for mandatory injunction against the Government maintainable, in case the government which is duty bound to take action under Kerala Land Conservancy Act, refuses to take action to evict encroachment of Government Land. 2. Is not a person using a puramboke cannal bund for ingress and egress to his property, suffer special damage and hence maintain a suit, if such puramboke bund is encroached by certain people. S.A.No. 50 of 2000 5 3. In such a case is not the civil right of such beneficiary infringed. 4. Cannot the court issue a mandatory injunction, to the Government if it is brought on evidence that Government is not discharging the statutory duties. 5. Whether the appellate court was right in holding that in case of obstruction to use puramboke way, suit for declaration is a condition precedent for obtaining a relief of preventive injunction. 6. Can a relief of declaration of easement right of way prayed for in case of obstruction of way through puramboke land, by a third party by encroaching in to puramboke land. 8. The learned counsel appearing for the appellant pointed out that the lower appellate court has erred both on facts and in law in allowing the appeal and dismissing the suit. The court misdirected itself both in law and on facts. The definite case of the plaintiff was that there was encroachment in the puramboke canal bund by the defendants and they have annexed that portion to their respective properties. This allegation of the plaintiff was found to be true by trial court based on the commissioner's report and plan. Therefore, necessarily the court had come to the aid of the plaintiff to enable him to exercise his rights and direction given and the mandatory S.A.No. 50 of 2000 6 injunction granted by trial court were only just and proper. According to the learned counsel the reasons given by the lower appellate court to non-suit the plaintiff are untenable in law. 9. There seems to be considerable force in the submission made by the learned counsel for the appellant. It has been found by the trial court that there has been an encroachment as alleged in the plaint as evidenced from commissioner report and plan namely Exts.C2 and C3. The trial court was of the opinion that when any encroachment of the puramboke land is brought to the notice of the authority, the authorities are bound to take such action as are necessary to protect the interest of the State as well as the citizen. Under those circumstances, the trial court had decreed the suit. 10. One must remember that the definite stand taken by the defendants were that they had not encroached into any portion of the puramboke land and as an alternate contention they had pleaded that even if any portion was annexed to their property and they had perfected title over the same by adverse possession and limitation. The trial court found against the said S.A.No. 50 of 2000 7 plea. The same plea was agitated before the lower appellate court, but the lower appellate court felt it unnecessary to consider the issue the suit itself was not maintainable. 11. The plaintiff had clearly pointed out that there was a canal bund starting from the south-western corner of the property and running through the western side and that was being used by the people of the locality for ingress and egress to their respective properties. Further allegation was that subsequent to the coming to the existence of the municipal road, defendants 1 and 2 did not need to use the canal bund further for ingress and egress to their properties. They had trespassed into the portion of the canal bund and reduced it into their possession. This allegation of the plaintiff was found correct going by the commissioner's report and plan. 12. It is significant to notice that the plaintiff had complaint to defendants 3 and 4 about the illegal act of the defendants but they did nothing in the matter. Under those circumstances, the plaintiff was constrained to approach the court for appropriate reliefs. S.A.No. 50 of 2000 8 13. It is difficult to understand the observation of the lower appellate court that no civil right of the plaintiff is involved in the suit and therefore, the suit is not maintainable. One needs to refer only the decision reported in 1988 (1) KLT 701 PAILAPPAN v. SEBASTIAN, wherein it was as follows: “A person having access to his compound from a public pathway or road is entitled to certain basic rights and amenities. He has certainly the right of ingress and egress through the road or pathway. No person can meddle with that right or in any manner diminish it by any sort of interference. The right of way through a public pathway or road is not dependent upon any prescriptive right or long user. It stems from the very existence of the road abutting or leading to one’s property. The owner of a property having road access can definitely seek the intervention of the court for redressal of his grievance whenever he apprehends obstruction or nuisance or any sort of Interference to his just and peaceful user of the road. If any such high handed action occurs special damage to the owner of the property can definitely be Inferred. Legal presumption to that effect will not be out of place. In such a case consent In writing of the Advocate General as contemplated under S.91 of the C.P.C. is not necessary.” 14. The act of the lower appellate court in not accepting the principle laid in the above decision cannot be appreciated. Further in the decision reported in (2010 (2) SCC 461) Mandal S.A.No. 50 of 2000 9 Revenue Officer v. Goundla Venkalah it is stated as follows: “ In this context, it is necessary to remember that it is well-nigh impossible for the State and its instrumentalities including the local authorities to keep everyday vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorized occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the state apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty- bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the state to immovable property and give an upper hand to the encroachers, unauthorized occupants or land grabbers.” 15. The trial court had approached the issue in the proper perspective and in view of the fact that the encroachment had been established, the defendants 3 and 4 are bound to take such actions as were necessary to protect the interest of the State as well as the citizens. 16. The lower appellate court on the other hand though that if at all any rights of the plaintiff had been affected, it is his S.A.No. 50 of 2000 10 constitutional rights for which remedy is elsewhere and no civil right of the plaintiff is involved. To much emphasis was laid on that there was no plea of right of way and also no right of easement claimed against the defendants. The court is of the view that unless a right of way or right of easement is claimed suit cannot be entertained. The said view has no support in law. The decision reported in 1988 (1) KLT 701 PAILAPPAN v. SEBASTIAN, held that the person has a right in puramboke land to use it as a way. That rights cannot be interfered by the person who have no right over the puramboke land. The view of the lower appellate court that the court cannot compel the State or Authorities under it to take action to remove the encroachment is without basis, especially in view of the decision reported in (2010 (2) SCC 461) Mandal Revenue Officer v. Goundla Venkalah. 17. It therefore follows that the judgment and decree of the lower appellate court are clearly unsustainable in law. The matter requires reconsideration at the hands of the lower appellate court. S.A.No. 50 of 2000 11 The result is that the appeal is allowed. The judgments and decrees of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh consideration in the light of what has been stated above and in accordance with law. The parties shall appear before the lower appellate court on 21.07.2011. The lower appellate court shall make every endeavour to dispose of the suit as early as possible, at any rate, within a period of six months from the date of appearance of the parties. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln