IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA MONDAY, THE 4TH DAY OF JULY 2011/13TH ASHADAH 1933 SA.No. 965 of 2001 (F) ---------------------- AGAINST THE ORDER/JUDGMENT IN AS.57/1998 of SUB COURT, NEDUMANGAD AGAINST THE ORDER/JUDGMENT IN OS.355/1995 of PRL.MUNSIFF COURT,NEDUMANGAD APPELLANT(/PLAINTIFF: -------------------------- JOSEPH NADAR VARGHESE, VARUVILA PUTHEN VEEDU, PARAVOORKONAM, CHERIYAL COTTAH, POONJAMKOTTU MURI, PERUMKULAM VILLAGE. BY ADV. SRI.R.KRISHNAKUMAR (CHERTHALA) RESPONDENT(S)/DEFENDANTS: ------------------------------------- 1. ANOSE STEPHENSON, SYMALAYAM CHEMPUVILA , POONJAMKOTTU MURI, PERUMKULAM VILLAGE. 2. P.K.ROBERT,S/O.KOCHUKUNJU, CHANDRIKA NIKETHAN, -DO- -DO- 3. ENOSE ROBINSON, AJI NIVAS, CHERIYAL COTTAH, KATTAKODU,PERUMKULAM VILLAGE. 4. VELU SASI, CHERIYAL COTTAH, NADUKANI, OTTAPLAVILA VEEDU, -DO- -DO- 5. J.D. VINCENT ALIAS APPURAJ, KATTAKOTTU THADATHARIKATHU VEEDU, -DO- -DO- 6. VELLANADU BLOCK DEVELOPMENT OFFICER, VELLANADU. 7. STATE. REP. BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R5 BY ADV. SRI.P.V.VARGHESE R1 TO R5 BY ADV. SRI.K.SATHEESH KUMAR R1 TO R5 BY ADV. SRI.T.A.UNNIKRISHNAN R6 & R7 BY GOVERNMENT PLEADER SRI. P.R JAYAKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. ------------------------- S.A No. 965 of 2001 -------------------------- Dated this the 4th July, 2011 J U D G M E N T Appellant filed a suit before the Munsiff's Court for prohibitory injunction, mandatory injunction as well as for damages. It was dismissed. Hence he filed an appeal before the Sub Court and it was also dismissed. Hence this second appeal is filed by plaintiff-appellant. 2. The suit was filed by appellant mainly on the allegation that defendants 1 to 5 (respondents) with the active assistance of the Panchayat, widened the road situated on the western side of the plaint schedule property which belongs to him and for this purpose defendants committed mischief in the property. The compound wall was demolished, the well was destroyed and thereby a loss was caused to the appellant. He therefore claimed a sum of Rs.14,500/- as damages. 3. The plaintiff-appellant also prayed for a prohibitory injunction restraining defendants from trespassing into the plaint schedule property and also from cutting any way or demolishing any portion of the building or causing any S.A No. 965 of 2001 2 obstruction to the appellant in drawing water from the well. Prohibitory injunction also is sought for against by the 6th defendant-Block Development Officer from granting administrative sanction. Mandatory injunction is also sought for, directing the defendants to restore the property to its original position. He also sought for compensation at Rs.14,500/- from defendants. 4. Defendants 1 to 5 (respondents) filed joint written statement. Defendants 6 and 7, the Block Development Officer and the State also filed written statements. Defendants 1 to 5 took up a contention that they are not liable to pay any compensation and appellant has no right to get injunction as prayed for. According defendants 6 and 7, the owners of the property, which lies on both sides of the road surrendered their property to the Panchayat and thereafter, the said road was included in a particular scheme and permit was granted for tarring road. 5. It is also contended that 6th and 7th defendants have no liability to compensate the plaintiffs. Defendants 1 to 5 also raised similar contentions and according to them, the suit is bad for non-joinder of necessary parties. The S.A No. 965 of 2001 3 building was constructed by trespassing into the way belonging to the Panchayat and that itself is illegal. Without sending a notice under Section 80 of Code of Civil Procedure, the suit will not be maintainable. 6. Several issues were framed and both the courts concurrently found that the suit is bad for non-joinder of necessary parties and also for want of notice under Section 80 of C.P.C. The courts below also found that some mischievous act was done by somebody in the property, as evidenced by Ext.C1 and Ext.C2 commission report and plan. But, plaintiff could not establish that defendants committed the mischief. Therefore, it was held that appellant is not entitled for getting a prohibitory injunction or mandatory injunction and also damages. 7. In this appeal, appellant raised several substantial questions of law as (a) to (g) in the appeal memorandum. It appears from a reading of the records that the substantial questions of law which arise for consideration in this appeal are as follows: (i) Is dismissal of the suit for want of notice under Section 80 CPC is bad, since such issue did not arise? S.A No. 965 of 2001 4 (ii) Is dismissal of the suit is wrong in the absence of any pleading that the Panchayat was a necessary party and hence suit is bad for non-joinder of Panchayat as a party? 8. On hearing both sides and on perusal of records, it appears that there is some merit in the contention raised by the appellant, with respect to issue relating to notice under Section 80 of CPC. A reading of the plaint as well as the written statement reveals that there is no assertion or averment that notice under Section 80 of CPC was not sent nor was it received by defendants. Appellant, on the other hand contended that notices were issued and the acknowledgment card were also produced as Exts.A2 and A2 (a). 9. At any rate, in the absence of a specific pleading that the suit is not maintainable for want of issuance of notice under Section 80 C.P.C,the trial court did not frame any issue relating to such notice, as pointed out by learned counsel for appellant. It is in the appellate court that a point is seen raised whether the suit is bad for want of notice under Section 80 CPC. In the above circumstances, the S.A No. 965 of 2001 5 dismissal of the suit on the ground that there is no notice under Section 80 CPC, in the absence of any specific assertion or pleading that no such notice was issued is certainly illegal. 10. It can also be seen that there is no specific averment in the pleading that the Panchayat is a necessary party. Though certain pleadings are made vaguely about involvement of the Panchayat, it is not pleaded that the Panchayat is a necessary party or that non-joinder of the Panchayat is fatal to the suit. Hence,the suit ought not to have been dismissed on the ground that there is non-joinder of necessary parties. 11. It is relevant to said at this juncture that in the written statement filed by defendants 1 to 5 it is pleaded that the road is used by several people of the locality and hence, the suit is bad for non-joinder of necessary parties. It cannot be said from the said averments that the suit is bad for non-joinder of Panchayat as party. Thus, in the absence of any pleading, assertion or denial by the respective parties in respect of non-joinder of Panchayat as a necessary party, such an issue did not arise. S.A No. 965 of 2001 6 12. However, trial court has raised an issue generally whether the suit is bad for non-joinder of necessary parties. Appellate court held that Panchayat is a necessary party, since according to appellate court the disputed road belongs to Panchayat. Such a finding cannot be sustained in the light of the evidence adduced in this case. PW1 deposed that he did not surrender the property lying on the western side either to the Government or to the Panchayat and it was not acquired also. He made it clear in the evidence that the Panchayat did not trespass into the property. According to him, defendants trespassed into the property and committed the mischief. 13. On the side of the plaintiff, PW5 who is the Secretary of the Panchayat was also examined. She categorically stated that no records are available in the Panchayat relating to the disputed road. She also stated that there is no resolution passed by the Panchayat relating to the road in question. Plaintiff also has a case that no resolution was passed to broaden the way and Panchayat did not take any decision to get it tarred. These facts are admitted by PW5 in her evidence. She categorically S.A No. 965 of 2001 7 deposed that there was no proposal by the Panchayat for construction of the road and there was no decision by the Panchayat for tarring etc. 14. PW5 also stated that no records are available in the Panchayat showing that the plaintiff had surrendered the property in favour of the Panchayat. She also stated that the property is being acquired by the block and that no files are available in the office of the Panchayat relating to the disputed road. Of course, she also gave a statement that the responsibility is that of the Panchayat to acquire the property. 15. However, PW5 stated in the cross-examination that the road belongs to Panchayat. On the sole admission, made by PW5 in her cross-examination, appellate court proceeded to conclude that the road belongs to the Panchayat. Such finding is not consistent with her own evidence to show that none of the documents available in Panchayat will show that the road belongs to Panchayat. The court below therefore, committed an error in concluding that the road belongs to the Panchayat. 16. Ordinarily this Court is not permitted to re- S.A No. 965 of 2001 8 appreciate the evidence. But in the light of the conclusion arrived at by the trial court which is totally inconsistent with the evidence adduced in this case, I am constrained to refer to the evidence let in in this case. This course is permitted as per law. This court can examine in a Second Appeal whether findings are contrary to the evidence adduced in the light of the contentions raised in the appeal. 17. There is a clear and concurrent finding of facts by both the courts below regarding the entitlement of the appellant to get prohibitory injunction and mandatory injunction against the defendants. It was found from evidence that there is no sufficient evidence to connect defendants 1 to 7 with the alleged incident of causing mischief. Both the courts below appreciated the pleadings and evidence and entered such findings. 18. In the appeal memorandum, appellant however raised a point “have not the lower court failed to appreciate oral and documentary evidence adduced in this case”. There can be no doubt that such a question cannot be treated as substantial question of law. No substantial question of law is involved and hence, it cannot be raised in respect of findings S.A No. 965 of 2001 9 relating to the entitlement of the appellant for getting a prohibitory and mandatory injunction and damages. Both the courts answered this issue against appellant. 19. In the light of the concurrent finding of facts by the trial court and appellate court that the appellant failed to prove that Defendants 1 to 5 are responsible for the mischief caused and in the absence of anything to show that those findings are perverse or that any substantial question of law is involved relating to those findings, I am not inclined to interfere in those findings. 20. Hence, in the light of the above findings, it can be seen that appellant is not entitled to get a decree against defendants as prayed for. Even though this Court has answered two substantial questions of law in favour of the appellant, the suit cannot be decreed for the above reasons. The dismissal of suit is only justifiable and it does not require intervention. This appeal is dismissed. Sd/-K.HEMA, JUDGE ma /True copy/ P.A to Judge