IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 AS.No. 76 of 1997(E) -------------------- {OS.184/1991 OF SUB COURT, SULTHAN BATHERY} .................... APPELLANT(S)/PLAINTIFF: ----------------------------- SIMON ABRAHAM, S/O.ABRAHAM, PLANTER, RESIDING AT AYIRUR ESTATE, PADINHARETHARA VILLAGE, VYTHIRI TALUK, WAYAND DISTRICT. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN SRI.S.PRAKASH SMT.A.PARVATHI MENON RESPONDENT(S)/DEFENDANTS: ----------------------------------- 1. K.S.E.B. REPRESENTED BY ITS CHAIRMAN, VYDYUTHI BHAVAN, PATTOM, TRIVANDRUM. 2. EXECUTIVE ENGINEER, K.S.E.B, NO.I DIVISION, THARIODE PO 3. EXECUTIVE ENGINEER, NO.2 DIVISION, K.S.E.B., KUTTIADI AUGMENTATION SCHEME, POST THARIODE. 4. M/S.VILAKKUPATTATHIL CONSTRUCTION COMPANY, REPRESENTED BY ITS PROPERTIOR, KURIAN E. KALATHIL, S/O. EAPEN, RESIDING AT T.C.15/1004, VAZHUTHACAUD, TRIVANDRUM. ADV. SRI.S.RAMESH BABU THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- A.S.No.76 of 1997 --------------------------------------- Dated this the 16th day of June, 2010 JUDGMENT THOTTATHIL B.RADHAKRISHNAN, J. This appeal is by the plaintiff in a suit for mandatory injunction and other reliefs. 2. According to the plaintiff , out of the entire extent scheduled as item A in the plaint, an item was acquired for the purpose of the Kerala State Electricity Board, the defendant. That acquired item is shown as B schedule, though without mentioning its actual extent. The land remaining in his possession, after such acquisition, is described as 'C' schedule, again without stating its actual extent. 3. The plaintiff's case is that the Board dug a portion immediately touching the land left after acquisition and available with the plaintiff, to a depth of 30 feet and this resulted in loss of lateral support to plaint A.S.No.76 of 1997 :: 2 :: 'C' schedule. He, therefore, sought a decree of mandatory injunction directing the first respondent Board and its officers, to provide lateral support using cement mortar and other materials. He also sought damages for loss caused by land sliding and loss of land and improvements. 4. Among other things, defendants 1 to 3, the Board and two of its officers, challenged the plaintiff's right over the plaint schedule property and also the extent and description of the property. We notice this at this point of time because, the property belonging to the plaintiff, in relation which the relief is sought for, is not identified even going by the commissioner's report and plans, which are available in the lower court records. 5. Acting on the commissioner's report, the court below concluded that out of Rs.20,020/- found by the commissioner as assessable loss, damages reckonable A.S.No.76 of 1997 :: 3 :: to the loss of land and land sliding is only Rs.14,270/-. It, therefore, granted a decree for realisation of Rs.14,270/-. On the question of mandatory injunction, the court below came to the conclusion that the facts do not lead to the requirement of exercise of the discretionary jurisdiction, in terms of the Specific Relief Act and to grant the mandatory injunction sought for. It was noticed that cement mortar retainer wall having sufficient foundation, strength and width may have to be constructed along the boundary. The Board had not acceded to that request. The court below found that the construction of such a boundary wall would be obviously costly and there is nothing on record to conclude as to the nature of the structure that has to be put up to provide such lateral support or to assess the expenditure to be incurred for it. Accordingly, it was concluded that even if the mandatory injunction as sought for is to be granted, it is not one that A.S.No.76 of 1997 :: 4 :: could be enforced with the assistance of the court, since with the materials on record the court was not in a position to decide as to the nature of the lateral support to be provided and the expenditure to be incurred for putting up such a structure. Proceeding to Section 40 of the Specific Relief Act, the court below found that the plaintiff could have claimed damages in substitution of the mandatory injunction sought for, however that, in the absence of such relief being sought for, no such relief could also be granted. It is also a matter of record that there was no legal evidence before the court below to adjudicate and decide on, as to what could be the damages that could be awarded under Section 40 of the Specific Relief Act. 6. Under the aforesaid circumstances, we are not impressed with the plaintiff's appeal for enhancement of the damages and also for reversal of the refusal of the A.S.No.76 of 1997 :: 5 :: decree for mandatory injunction. The materials on record and the findings of the court below, may not conclude that the plaintiff in any subsequent suit on title and possession and even in identifying the boundary and for further reliefs attendant thereto. Leaving such questions open, we confirm the decree. In the result, the appeal fails and it is dismissed. No costs. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/ //true copy// P.S. to Judge.