IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 RSA.No. 1039 of 2007() ---------------------- AS.257/2003 of ADDL. DISTRICT COURT-II, KOZHIKODE OS.162/1993 of ADDL.M.C.,KOZHIKODE-I .................... : APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------------- UMMACHU UMMA, AGED 53 YEARS, D/O. MARAKKARUTHY, RESIDING AT EYYAMBATH MORATTA, KUNNUMMAL HOUSE, KODUVALLY AMSOM DESOM, KOZHIKODE DISTRICT. BY ADV. DR.K.B.MUHAMED KUTTY (SR.) SRI.K.M.FIROZ RESPONDENTS: RESPONDENTS/DEFENDANTS --------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, CIVIL STATION, NEDUNGATTOR AMSOM AND DESOM, KOZHIKODE DISTRICT. 2. THE ASSISTANT EXECUTIVE ENGINEER, P.W.D., KODUVALLY, KOZHIKODE DISTRICT. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 1039 OF 2007 =========================== Dated this the 8th day of January, 2008 JUDGMENT Plaintiff in O.S.162/1993 on the file of Munsiff Court, Kozhikode is the appellant. Respondents are the defendants. Appellant instituted the suit seeking a decree for injunction restraining respondents from trespassing into the plaint schedule property contending that appellant obtained the property covered under Ext.A1 sale deed 403/1970 of S.R.O. Koduvally and 0.0520 hectares of land from the said property was acquired for the purpose of widening the National PWD road and award was passed on 15.5.1980 and the property on the northern side of plaint schedule property is owned by Kunhipathumma Hajjumma and her property and adjacent properties are also acquired for the purpose of the road. Excluding the portion out of the property covered under Ext.A1 acquired for the road is the plaint schedule property. R.S.A.1039/2007 2 According to appellant, it is in the possession of the appellant and with the assistance of respondents Kunhipathumma Hajjumma altered her southern boundary causing reduction of the width of the road and there are two small shops on the north eastern side of the plaint schedule property which were given on rent from 1980 onwards and those shops were erected with due permission of the Panchayat and second respondent along with his officers came to the plot and measured the approach road from the altered southern boundary of Kunhipathumma Hajjumma and though appellant objected to the same they threatened that the shop rooms are to be removed or they would take possession of the same. Appellant sought a decree for a permanent prohibitory injunction from doing so. Respondents resisted the suit contending that Public Works Department had taken out a scheme for improving koduvalli bazar portion of State High way and also to clean the accident prone area comprised therein by widening the road constructing drain, pedestrian pathway. Accordingly on 10.2.1993, it R.S.A.1039/2007 3 was surveyed to demarcate the correct boundaries and it was noticed that appellant encroached into a portion of PWD land to an extent of 1.394 cents on the left side of koduvalli kizhakkoth road forming a junction and two bunks were put up on the encroached land and a portion of another bunk was also protruding to the PWD land. The bunk constructed by the appellant was a potential danger to the traffic as well as the pedestrians and department took action for evicting the encroachment under Land Conservancy Act. The action of the respondents is perfectly legal and appellant is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 and 2, Dw1 and Exts.A1 to A3 and Exts.C1 to C3 dismissed the suit holding that the disputed portion of the property forms part of the acquired property and therefore appellant is not entitled to the decree sought for. Appellant challenged the judgment before District Court, Kozhikode in A.S.257/2003. Learned Additional District Judge on reappreciation of evidence confirmed the findings R.S.A.1039/2007 4 of learned Munsiff and dismissed the appeal. It is challenged in this second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of learned counsel is that courts below dismissed the suit solely relying on Ext.C2 rough sketch prepared by the Advocate Commissioner and the plan prepared by the Taluk Surveyor and the fact that the acquired property was not correctly demarcated was not taken into consideration and therefore the decree is not sustainable. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. The suit is only one for injunction. The right of the appellant under Ext.A1 sale deed was not disputed. Even appellant admitted that out of the property obtained under Ext.A1, a portion was acquired for widening the road and an award was passed on 15.5.1980. The portion of the property acquired from the property belonging to appellant R.S.A.1039/2007 5 admittedly is 0.0520 hectares equivalent to 12.85 cents. Learned Munsiff and learned District Judge found that the plot B marked in Ext.C3 plan is the acquired property and the disputed portion of the proprety is within the acquired plot B and therefore appellant is not entitled to the decree sought for. Learned counsel argued that even according to respondents, the property acquired is only 0.0520 hectares equivalent to 12.85 cents and Ext.C3 shows that the acquired property is 19.23 cents and therefore on the basis of Ext.C3 appellant should not have been non-suited. Eventhough appellant had filed an objection to the report before the trial court, the correctness of plot B as the acquired property, was not challenged. Plot B is not marked by the Commissioner as the portion of the property acquired from Ext.A1 property. Instead it is the total acquired property on that side of the road which was acquired for the purpose of widening the road. Therefore when appellant did not dispute the identity of plot B as the acquired property before R.S.A.1039/2007 6 the trial court or first appellate court and the disputed property is part of that plot he is not entitled to contend at the second appellate stage that plot B is not the acquired property. In a suit for injunction it is for the appellant to identify the property over which he claims a decree. When appellant himself admitted that a portion of the property was acquired and only the remaining portion of the property is in his possession, it is upto the appellant to prove what is the property acquired and what remains in his possession. When the evidence show that the disputed portion of the property is part of the acquired property, as rightly found by courts below, appellant is not entitled to the decree sought for. Being a suit for injunction, the dismissal of the suit will not debar the appellant from instituting a suit for fixation of the boundary of his remaining property. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006