IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 SA.No. 467 of 2002(E) ----------------------------------- AS.31/1998 of SUB COURT, NEDUMANGAD OS.421/1996 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT/APPELLANT/ADDL.3RD DEFENDANT: NELLANADU GRAMA PANCHAYATH, REP. BY ITS SECRETARY, PANCHAYATH OFFICE, VENGARAMOODU. BY ADV. SRI.T.H.ABDUL AZEEZ SMT.ZEENA.K.S RESPONDENTS/RESPNTS/PLAINTIFFS & DEFENDANTS 1 & 2: 1. RAVEENDRAN CHETTIAR, S/O. VELAYUDHAN CHETTIAR, NEERCHALIL VEEDU, ALANTHARA, MUDAKKAL MURI, NELLANADU. 2. CHELLAMMA KRISHNAMMA, KUNNATHUVILA PUTHENVEEDU, DO. DO. 3. KRISHNAN CHETTIAR, S/O. SUBBAYYAN CHETTIAR, DO. DO. 4. MADHAVA KURUP, S/O.NARAYANA KURUP, NEERCHALIL VEEDU, DO. DO. 5. PREMAKUMARAN NAIR, S/O.KUTTAN PILLAI, CHEERUVEEDU, DO. DO. BY ADV. SRI.MVS.NAMBOOTHIRY SRI.P.RAHIM THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- S.A.No. 467 of 2002 --------------------------- JUDGMENT The Nellanadu Grama Panchayat, who was the additional third defendant in O.S.No.421/96 on the file of the Principal Munsiff's Court, Nedumangadu, is the appellant and the respondents are the plaintiffs and defendants 1 and 2. 2. Respondents 1 to 3 as plaintiffs instituted O.S.No.421/96 aforesaid for a decree of permanent prohibitory injunction restraining the defendants or their men from trespassing into plaint A and B schedule properties or from demolishing its boundaries on the eastern side or constructing pathway annexing portions from those properties or committing any sort of waste therein and from interfering with plaintiffs' possession and enjoyment over the scheduled properties alleging, inter alia, that the first plaintiff is the owner in possession of items 1 and 2 in plaint A schedule property by virtue of Sale Deed No.3877/80 (Exhibit SA 467/02 2 A1) and Sale Deed No.3388/94 (Exhibit A2); that plaint A schedule property is lying as a compact plot; that plaintiffs 2 and 3 are the owners in possession of plaint B schedule property as per Settlement Deed No.1396/67 (Exhibit A3); that there is a total extent of 91 cents in Sub Division 4 of R.S.No.733, including plaint A and B schedule properties; that there is a thadom on the southern and western sides of the above 91 cents; that the defendants have no manner of right or possession over the plaint schedule properties and they are owners of the property on the north eastern side of the scheduled property; that the defendants have started construction of a pathway through their property in the east west direction and construction has reached on the north eastern side of plaint A schedule property; that on 21.7.1996, the defendants and their men attempted to extend the pathway through plaint schedule property and then towards south and demolishing the boundaries SA 467/02 3 and thus, to extend the pathway to the thadom that is passing through the south eastern side of the plaint B schedule property; that the attempt of the defendants was thwarted by the timely intervention of the plaintiffs; that the defendants have thereafter also openly declared that they would construct pathway through plaint schedule properties and demolish the monthirana boundary on the eastern side of the plaint A schedule property and the compound wall of plaint B schedule property and would convert into a motorable road; that in that event the plaintiffs would be put to irreparable loss and hardship; that the local Panchayat has issued a notice to the plaintiffs at the instigation of the defendants stating that there is puramboke land within the plaint schedule property; that in fact there is no puramboke land within the scheduled property and if at all there is any puramboke, the right of the Panchayat and the Government over that portion is lost by adverse SA 467/02 4 possession and limitation and hence, the suit. 3. Defendants 1 and 2 remained ex parte. The Nellanadu Grama Panchayat was impleaded as the additional third defendant and they filed written statement advancing also counter claim raising, inter alia, the following contentions: The suit is not maintainable; that the suit is bad for mis-joinder of causes of action; that the plaintiffs have no title or possession over the entire plaint schedule properties; that they have not issued any statutory notice to the Panchayat as provided under the Panchayat Raj Act; that the sale deeds and the settlement deeds relied on by the plaintiffs are forged ones; that execution of these documents are specifically denied; that since the suit is one in public interest, the plaintiffs should have filed the suit after obtaining permission from court; that they have not complied with Sections 91 and 92 of the Code of Civil Procedure; that the pathway having twelve cents SA 467/02 5 comprised in R.S.No.733/5 belongs to the Panchayat; that the said pathway is in possession of the Panchayat and is in use as a public pathway by the local people; that in re-survey records also it is shown as pathway; that the plaintiffs have no manner of right or possession over the property in R.S.No.733/5; that the Panchayat received a complaint on 1.7.1996 from the local people stating that the plaintiffs have trespassed into the pathway and attempted to construct a compound wall annexing portions from there; that on inspection by the Panchayat authorities, they could realise that the plaintiffs have trespassed into the pathway and a notice was issued to the third plaintiff on 11.7.1996 to remove the obstructions and illegal constructions made in the pathway; that on 16.7.1996, the plaintiffs submitted a reply to the Panchayat contending that they have not encroached into any portion of the pathway; that again, the Panchayat issued a notice on 13.8.1996 SA 467/02 6 to the second defendant; that the Panchayat has got every right to restore the pathway to its original position and to remove the obstruction caused in the pathway; that it is incorrect to say that the plaintiffs were in possession of the puthuval for the last more than hundred years; that the plaintiffs have no cause of action and the suit is to be dismissed with costs; that the third defendant Panchayat is entitled to restore the pathway to its original position removing the obstruction caused in the pathway. Hence, they prayed for declaration of title and possession of the Panchayat over the property mentioned in the schedule attached to the counter claim and to have recovery of possession thereof. 4. A replication was filed by the plaintiffs contending that the property mentioned in the counter claim is not lying separately; that there is no such pathway in existence; that the right, if any, of the Government or the Panchayat over the SA 467/02 7 property in R.S.No.733/5 is lost by adverse possession and limitation; that the plaintiffs have issued replies to the notices issued by the Panchayat and the third defendant is not entitled to any of the reliefs advanced in the counter claim and the counter claim is to be dismissed. 5. On the above pleadings the trial court raised necessary issues for trial and after considering the evidence adduced at trial, which consisted of oral evidence of PWs 1 to 4 and documentary evidence Exhibits A1 to A8(a) and C1, decreed the suit granting decree of permanent prohibitory injunction restraining the defendants from demolishing its boundaries on the eastern side or from constructing a new pathway annexing portions from plaint A and B schedule properties or from committing any waste and from interfering with the plaintiffs' possession and enjoyment over the scheduled properties. The counter claim was dismissed. SA 467/02 8 6. The third defendant Panchayat filed A.S.No. 31/98 impleading the plaintiffs and defendants 1 and 2 assailing the decree passed by the trial court as aforesaid. The first appellate court dismissed the appeal concurring with the findings of the trial court and hence this second appeal by the aggrieved third defendant Panchayat. 7. It is vehemently contended before me by the learned counsel for the appellant that the appellant had applied for issue of a commission before the first appellate court and that was disallowed; that there is no evidence to show that the plaintiffs had perfected title by adverse possession and that a decree as prayed for should not have been granted in as much as the plaintiffs have not sought to get declared their title and possession over the scheduled properties. 8. It is to be noted that the suit is one for injunction only. It is on the basis of the evidence adduced by the plaintiffs that the courts below SA 467/02 9 concurrently found that the plaintiffs are in possession of plaint A and B schedule properties and consequently, injunction, as prayed for, was granted. The burden is on the appellant to establish that the plaintiffs have trespassed into any portion of the public pathway, if any, that was in existence. That has not been established by the appellant and no evidence at all was adduced on the side of the appellant to establish their contentions. In the circumstances, the contentions advanced on behalf of the appellant is devoid of merit and does not deserve consideration in this second appeal. Further, it is not the first appellate court to issue a commission and if at all the appellant wanted to have a commission issued, they should have sought for issuance of a commission before the trial court. Grant of injunction as prayed for by the plaintiffs is definitely based on the conclusion arrived at by the court below that the plaintiffs have SA 467/02 10 established their possession over the scheduled properties on the basis of the title deeds. Though, as many as five substantial questions of law are attempted to be formulated in the appeal memorandum, I am not of the view that those are substantial questions of law arising for consideration in this second appeal, but were matters which would have been considered, had they been advanced before the trial court and those cannot be agitated for the first time in the second appeal. There is absolutely no merit in the second appeal and it deserves only to be dismissed in limine refusing admission. In the result, I dismiss this second appeal in limine refusing admission. 3rd June, 2008 (K.P.Balachandran, Judge) tkv SA 467/02 11 K.P.Balachandran, J. --------------------- S.A.No.467 of 2002 --------------------- JUDGMENT 3rd June, 2008