IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 AS.No. 683 of 2000(E) -------------------------------- OS.445/1996 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT - PLAINTIFF: --------------------------------- C.J. JOHN, JOE BHAVAN, THAKADIYEL HOUSE, KOTHANELLOOR KARA, KOTTAYAM DISTRICT. ADDITIONAL APPELLANTS IMPLEADED: ----------------------------------------------------- 2. ALEYAMMA JOHN, W/O. LATE C.J. JOHN, JEO BHAAN, THAKADIYEL HOUSE, KOTHANELLOOR KARA, KOTTAYAM DISTRICT. 3. JEOMON JOHN, S/O. LATE DO. DO. DO. 4. JIJIMON JOHN, DO. DO.DO. 5. SIBICHAN JOHN, DO. DO. DO. THE APPELLANT DIED AND LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 AS PER ORDER DATED 8.1.2001 IN C.M.P. NO.92 OF 2001. BY ADV. SRI.ROY CHACKO SRI.TOMY.P.T. SRI.ROY CHACKO RESPONDENTS - DEFENDANTS: ------------------------------------------- 1. THANKAPPAN, RESIDING AT VADAKKEKAVUMPURAMTHU HOUSE, KOTHANELLOOR KARA, DO. VILLAGE. 2. RAJAN, DO. DO. DO. 3. KESAVAN, DO. DO. DO. 4. HARIDASAN, DO. DO. DO. 5. SANTHOSH, DO. DO. DO. 6. BHAKTAN, DO. DO. DO. 7. SASI @ KUTTAN, DO. DO. DO. 8. RAJAN, DO. DO. DO. 9. THANKAN, DO. DO. DO. 10. CHELLAN, DO. DO. DO. 11. SASI, DO. DO. DO. 12. VENU, DO. DO. DO. 13. PADMAKUMAR, RESIDING AT KANIYAMPARAMBIL HOUSE, KOTHANELLOOR.F 14. GEORGE @ KUNJUNJU, MANNARUVELIL HOUSE, KOTHANELLOOR P.O. 12TH DEFENDANT PASSED AWAY BEFORE THE DECREE. BY ADV. SRI.M.NARENDRA KUMAR SRI.M.NARENDRA KUMAR THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 17.3.2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = A.S. NO.683 OF 2000 = = = = = = = = = = = = = = = = = = = Dated this the 17th day of March, 2008 J U D G M E N T -------------------- This appeal is filed by the sole plaintiff in O.S. No.445 of 1996 on the file of the Prl. Subordinate Judge's Court, Kottayam. During the pendency of the appeal appellant died and his legal representatives are impleaded as additional appellants. 2. Plaintiff filed the suit for recovery of possession of of plaint schedule item No.3 with damages at the rate of Rs.600/- per annum from the date of suit till recovery and for recovery of Rs.20,000/- as damages with interest and also for a decree of permanent prohibitory injunction restraining the defendants or anybody acting under them from using plaint item No.3 as a pathway and for other incidental reliefs. 3. Following were the material averments in the plaint. Plaintiff was the owner of 1.06 acres of land comprised in Sy.No.487/1 of Kothanalloor Village. He purchased the property in the year 1964. He constructed a residential A.S. NO.683 OF 2000 -: 2 :- building in the property and was residing there. He was also the owner of 36 cents of land comprised in Sy.No.487/2 of Kothanallur Village and more particularly described as item No.2. That property was purchased in the year 1968. There was a pathway on the eastern side of plaint item No.1 starting from Vaikom-Ettumanoor road. The said pathway takes a turn on the north-eastern corner of plaint item No.1 and goes west upto item No.2 and thereafter goes to north on the eastern side of item No.2. It had a width of only 3ft. on an average and was only fit for pedestrian traffic. Two feet width of the pathway was voluntarily given by the plaintiff at the request of the people of the locality for their use as a pathway in the year 1965. After surrendering 2ft. of land, plaintiff constructed a compound wall on the eastern side of plaint item No.1 using rubble and put up another structure over and above the rubble compound wall upto the height of 1½ft. and plastered the same with cement. On the northern side of plaint item No.1 also, plaintiff constructed a compound wall having a height of 6ft. inclusive of the foundation, running east-west. In continuation of the compound wall plaintiff had A.S. NO.683 OF 2000 -: 3 :- constructed a Kayyala on the eastern side of item No.2, which was having a height of 5ft. on an average. During the second week of September 1993, some of the defendants approached the plaintiff and requested his permission to widen the above- mentioned pathway by taking some more lands from the plaintiff. He was not agreeable to that request since he has invested a huge amount for the construction of the compound walls and kayyala. But the plaintiff suggested that he will consider the proposal only if persons interested are prepared to meet the entire expenses for the reconstruction of the compound wall on the eastern and northern sides of plaint item No.1 and eastern side of plaint item No.2. Those persons were not amenable to the suggestion made by the plaintiff. On 19.9.1993 at 11.00 a.m. defendants, who were mainly interested in widening the pathway, trespassed into the property of the plaintiff and demolished the compound wall. They also forcibly demolished the entire compound wall on the northern side of item No.1 about 5ft. in length and annexed 3½ft. width of land on the eastern side of item No.2 after destroying the entire kayyala. When the plaintiff and his A.S. NO.683 OF 2000 -: 4 :- sons tried to prevent the highhanded action of the defendants, the defendants tried to attack them and snatched away the gold chain worn by one of the sons of the plaintiff and a Titan watch worn by another son. Hence the suit for recovery of the land and also for damages with interest. In paragraph 7 of the plaint it was specifically stated that the defendants were impleaded in the suit in their individual capacity as well as representing the members of the public of the locality who are numerous in number. Plaintiff has filed a petition under Order I Rule 8 of the Code of Civil Procedure for permission to sue them as defendants in their representative capacity. 4. Defendants filed a written statement contending that the suit was not maintainable. They denied the allegation that they trespassed into the property and demolished the structures. It was contended that the averment that the existing pathway had only a 3ft. width was not correct. It was contended that actually the pathway was having a width of 7ft. It was further contended that public of the locality convened a meeting. The plaintiff also A.S. NO.683 OF 2000 -: 5 :- participated and a unanimous decision was taken for widening the 7ft. road so as to make it better trafficable by taking voluntary surrender of requisite land from adjacent land owners. Plaintiff voluntarily surrendered some portions of his property and the pathway was widened to its present form on 19.9.1993. The allegation that defendants trespassed into the property and destroyed the compound walls, etc. was denied. It was further contended that first defendant in the suit was working as the Head Warden of the Sub Jail, Pala on the date of the incident. The allegation that the defendants snatched away the gold chain and Titan watch worn by the plaintiff's sons was denied. Regarding the averments contained in paragraph 7 of the plaint that the suit is being filed against the defendants in their individual capacity as well as representing the members of the public of the locality it was contended that the defendants have no capacity to represent the public of the locality and the suit is bad for non-joinder of necessary parties. They prayed for dismissal of the suit. 5. A Commissioner was deputed, who filed Exhibit C1 report and C1(a) plan. Trial court found that defendants A.S. NO.683 OF 2000 -: 6 :- demolished the compound wall on the eastern and northern side of item No.1 property of the plaintiff and on the eastern side of item No.2 property. Relying on the commission report, the trial court awarded a compensation of Rs.13,000/-. Suit was decreed in part allowing the plaintiff to recover a sum of Rs.13,362.50. The prayer for mandatory and prohibitory injunction was disallowed. Challenging that part of the decree by which the trial court rejected the prayer for mandatory as well as prohibitory injunction, this appeal is filed. 6. Learned counsel appearing for the appellants has strenuously argued before me that the trial court had found that the report of the Commissioner is correct. It is argued that the court below had found that the defendants trespassed into item No.3 and converted as a pathway. But at the same time without any justification trial court refused the mandatory as well as the prohibitory injunction. It is argued that respondents have not filed any objection to the report of the Commissioner and that fact was found by the trial court and in view of that finding, there was no justification in denying the relief of injunction. Learned A.S. NO.683 OF 2000 -: 7 :- counsel appearing for the respondents argued that the finding of the trial court that respondents have not filed any objection is not correct. It is argued that an objection was filed, but the trial court did not consider that aspect. It is also argued that in paragraph 7 of the plaint it was specifically admitted by the plaintiff that people of the locality are using the pathway and the plaintiff wanted the respondents to represent the general public which they have denied. It is also argued that though there was an order for publication of notice under Order I Rule 8, no such publication was made. 7. According to the appellants, the disputed pathway had only a width of 3 ft. The report of the Commissioner shows that at the place where the pathway starts it was having a width of 3.25 metres and on the north portion of item No.2 it was having a width of 3.25 metres. According to the Commissioner at some places of item No.3 the pathway was having a width of 1.42 metres and on the northern most extremity it was having a width of 85 cms. and in some places it was having a width of 1.23 metres. What exactly was the width of the undisputed pathway was not stated by the A.S. NO.683 OF 2000 -: 8 :- Commissioner in the plan at all. In the report also he had not stated about the width of the old pathway. Respondents had filed an objection to the report, but it was belated. But the fact remains that objection was filed by the respondents to the report of the Commissioner. The main challenge was regarding the identification of the property by the Commissioner. So the finding of the court below that the correctness of the Commission report was accepted by the respondents is not correct. The Commissioner was examined. He was cross-examined at length also. Plaintiff was also cross-examined on this point. 8. It was admitted by the plaintiff in paragraph 7 of the plaint that the suit was filed in a representative capacity. It was specifically stated therein that the defendants were impleaded in the suit in their individual capacity as well as representing the members of the public of the locality. Defendants have specially denied their right to represent the general public. It was admitted by P.W.1 in the box that in spite of the contention raised by the respondents, he has not published any notice Under Order I Rule 8 CPC. In paragraph A.S. NO.683 OF 2000 -: 9 :- 10 of the original of the deposition he had admitted that others were also using the pathway. So the other public who were using the pathway were not given opportunity to put forward their defence. 9. There is yet another aspect. In the plaint it was averred that the defendants approached the plaintiff. He informed them that he will consider their request provided the defendants meet the entire expenses for shifting the existing boundary wall and reconstruction of the same. So it is clear that the plaintiff was willing to surrender the land free of cost. So he is not entitled to claim value of the land. 10. Section 39 of the of Specific Reliefs Act reads as follows: “39. Mandatory injunction.- When, to prevent the breach of an obligation, it is necessary to compel the performance of certain performance of certain acts which the court is capable of enforcing the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts”. 11. It is trite law that relief by way of mandatory A.S. NO.683 OF 2000 -: 10 :- injunction is discretion. It is an admitted fact that the property in question is being used as part of a pathway by the general public. I do not think it just and proper to exercise the discretion in favour of the plaintiff at this distant point of time. So the dismissal of the suit regarding mandatory as well as prohibitory injunction is only to be upheld. 12. The compensation awarded by the court below appears to be very meagre. According to the plaintiff he had lost more than Rs.25,000/-, but limited his claim to Rs.16,000/-. But towards mental agony and pain plaintiff claimed another Rs.4,000/-. Commissioner fixed the compensation at Rs.13,362.50. Considering all aspects of the matter, I am of the view that the court below ought to have passed a decree for Rs.10,000/- more, making the defendants liable for the same also. 13. In the result, appeal is allowed in part. The prayer for mandatory as well as prohibitory injunction is disallowed. But the compensation awarded by the court below is enhanced. The appellants are granted a decree for Rs.10,000/-. The respondents are directed to pay or deposit A.S. NO.683 OF 2000 -: 11 :- before the court below for payment to the appellants that amount also within two months from today. If they fails to pay or deposit before the court below for payment to the appellants the amount of Rs.10,000/- they will have to pay interest at the rate of 6% per annum for the entire amount from the date of suit till date of realisation. Civil Miscellaneous Petition No.6230 of 2000 shall stand dismissed. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== A.S. NO.683 OF 2000 ===================== J U D G M E N T ------------------------------------------- 17TH MARCH, 2008