IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 FAO.No. 54 of 2011() ------------------------------ IA.1517/2010 IN AS.130/2010 OF SUB COURT, NEYYATTINKARA .................... APPELLANT/PETITIONER ---------------------------------------- M.S. JAYAMOHAN, CHEMPILAVUNINNATHATTU VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK, KOTTUKAL. P.O. BY ADV. SRI.GEORGE VARGHESE (PERUMPALLIKUTTIYIL), SRI.A.R.DILEEP, SRI.V.SUNIL KUMAR (PANACHAMOODU). RESPONDENTS/COUNTER PETITIONERS ------------------------------------------------------------ 1. M.S. JAYAPRASAD, ASA NIVAS, NEAR PUNNAKULAM JUNCTION, KOTTUKAL DESOM, KOTTUKAL VILLAGE, KOTTUKAL. P.O., FROM CHEMPILAVUNINNATHATTU VEEDU, KUZHIVILAKONAM, KOTTUKAL DESOM, KOTTUKAL VILLAGE, NEYYATTINKARA TALUK, KOTTUKAL. P.O. 2. KOTTUKAL GRAMA PANCHAYATH, KOTTUKAL. P.O., THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY SECRETARY, KOTTUKAL GRAMA PANCHAYATH OFFICE, KOTTUKAL. P.O. R1 BY ADV. SRI.P.KESAVAN NAIR. R2 BY ADV. SRI.B.S.SWATHY KUMAR, SMT.ANITHA RAVINDRAN, SMT.M.G.AISHWARYA. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - F.A.O.No. 54 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December , 2011 J U D G M E N T Aggrieved by the order dated 21.10.2010 in I.A.No1517 of 2010 in A.S.No.130 of 2010 petitioner before the court below has come up in appeal. By the said order, an interlocutory application filed by him for interim injunction was dismissed by the court below. 2. The appellant instituted O.S.No.306 of 2008 for prohibitory injunction and mandatory injunction. The case put forward by the plaintiff is that the plaint A schedule property is a public road comprised in Re.Sy.No.153/8. Property lying on the western side in Re.Sy.No.152/12 belongs to the plaintiff and the property lying on the southern side is comprised in Re.Sy.No.153/5, property lying on the northern side in Re.Sy.No.153/3 and property lying on the eastern side is comprised in Re.Sy.No.153/7 are roads. It is pointed out in the plaint that the resurvey had become final on 08.05.1990. The road has been used by public for considerably long period and road is vested -:2:- F.A.O.No. 54 of 2011 with the 2nd defendant in the suit, panchayat. 1st defendant in the suit had no manner of right over the road puramboke. The plaint makes mention of two suits filed by the 1st defendant which ended in failure. Alleging that the 1st defendant is trying to trespass into and make constructions in C schedule property, the suit was laid. 3. The 1st defendant resisted the suit by pointing out that in O.S.No.209/2003, which he had filed against the panchayat the issue had been gone into at length and it was found that there was no puramboke land in Re Sy.No.153/8 and a decree was granted in favour of the 1st defendant. Accordingly it is contended that there is no basis for the allegations made by the plaintiff and there is no merit in the case. Suffice to say, after trial, the trial court found in favour of the 1st defendant and dismissed the suit. 4. The plaintiff carried the matter in appeal as A.S.No.130 of 2010 before the Sub Court, Neyyatinkara. He filed I.A.No.1517 of 2010 seeking an interim injunction -:3:- F.A.O.No. 54 of 2011 against the 1st respondent in the I.A. That prayer was declined by the court below. 5. The learned counsel appearing for the appellant pointed out that reliance based on Exts.B3 and B4 and so also the decree in O.S.No.209 of 2003 are without justification for the reason that the re-survey has become final as on the date of 08.05.1990 and it clearly shows that Re.Sy.No.153/8 is the puramboke land. Reliance based on the documents produced by the defendants cannot be justified in view of the re-survey plan. Accordingly it is contended that there is no justification in declining the prohibitory injunction as prayed for. 6. The learned counsel appearing for the respondent pointed out that the court below has considered all these aspects and had found that there was no puramboke in Re.sy.No.153/8. The lower appellate court has considered the various aspects and had come to the conclusion that there is no basis for granting an interim injunction. -:4:- F.A.O.No. 54 of 2011 7. The main dispute is with regard to 650 square links of property comprised in Re.Sy.No.153/8 according to the plaintiff. While according to the 1st defendant it is in Re.Sy.No.153/3. The contention is that Re.Sy.No.153/8 is road puramboke as contended by the appellant while the 1st respondent would say that this was established in O.S.No.209 of 2003 which was a suit filed by panchayat that there is no puramboke land in Re.Sy.No.153/8. 8. The lower appellate court while considering the I.A. has adverted to the discussion made by the trial court and also noticed the various documents which is produced by either side and came to the conclusion that appellant has no prima facie case. Further it is observed by the lower appellate court that it is not as if the plaintiff has no direct access to his property. The lower appellate court found the issue in favour of the 1st defendant. 9. The issue as already noticed is whether the property comprised in Re.Sy.No.153/8 is puramboke and if -:5:- F.A.O.No. 54 of 2011 the 1st defendant has any claim over the suit property. Whatever that be, issue had been gone into at length in O.S.No.209 of 2003 which was a suit filed by the present defendant against the panchayat. It is true that the plaintiff in the present suit was not party to that proceedings and he had no opportunity to contest the claim made by the 1st defendant in the present suit. However the documents produced in that suit and in this case also, prima facie show that there is no puramboke land in Re.Sy.No.153/8. Whether the documents produced by the 1st respondent can be accepted or not, is the matter to be gone into at the time of hearing of the appeal. Anyhow one of the courts has found that there is no basis for the claim made by the plaintiff and dismissed the suit. 10. It is to be noticed that the issue to be gone into both at the interlocutory stage and at the time hearing of the appeal are identical. 11. On going through the order of the lower court, it -:6:- F.A.O.No. 54 of 2011 cannot be said that the order is perverse or unwarranted by the materials on record. It is a possible view. If that be so, no interference is called for in the said order. While dismissing this appeal, the lower appellate court is directed to dispose of A.S.130 of 2010, as expeditiously as possible, at any rate, within a period of 3 months from the date of receipt of a copy of this judgment. There will be no order as to costs. Send a copy of this judgement to lower appellate court. P.BHAVADASAN, JUDGE kkj