IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 RSA.No. 1053 of 2008() ---------------------- AS.77/2002 of SUB COUURT,THALASSERY OS.155/1999 of MUNSIF COURT.,KANNUR .................... APPELLANTS:APPELLANTS/PLAINTIFFS ---------------------------------------------------- 1. CHINNAPPA ABDUL MAJEED,S/O. ABDURAHIMAN AGED 45 YEARS, NO OCCUPATION, RESIDING AT CHINNAPPA HOUSE, FORT ROAD, KANNUR. 2. CHINNAPPA RUKIYA, D/O. ABDURAHIMAN AGED 43 YEARS, NO OCCUPATION, RESIDING AT CHINNAPPA HOUSE, FORT ROAD, KANNUR.(DIED) 3. CHINNAPPA RABIYA,D/O.ABDURAHIMAN AGED 35 YEARS, NO OCCUPATION, RESIDING AT CHINNAPPA HOUSE, FORT ROAD, KANNUR. BY ADV. SRI.K.M.MOHAMMED KUNHI RESPONDENT(S): RESPONDENTS -------------------------- 1. THE MUNICIPAL COUNSIL, KANNUR MUNICIPALITY REPRESENTED BY ITS COMMISSIONER, KANNUR. 2. THE SECRETARY, KANNUR MUNICIPALITY, KANNUR. 3. SUPPL. DEFENDANTS, STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR,KANNUR. 4. THANOOJA, D/O. RUKIYA, AGED 28 YEARS RESIDING AT CHINNAPPA HOUSE,FORT ROAD,KANNUR TALUK 5. THANSEER,S/O.LATE RUKIYA,AGED 26 YEARS RESIDING AT CHINNAPPA HOUSE,FORT ROAD,KANNUR TALUK 6. RABEELA,D/O.LATE RUKIYA,AGED 22 YEARS RESIDING AT CHINNAPPA HOUSE,FORT ROAD,KANNUR TALUK 7. RASEELA,D/O.LATE RUKIYA,AGED 20 YEARS CHINNAPPA HOUSE,FORT ROAD,KANNUR . THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 1053 of 2008 ---------------------------------------- Dated this the 10th day of August, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 77 of 2002 on the file of the Sub court, Thalassery which arises from the judgment and decree in O.S. No. 155 of 2009 on the file of the Munsiff's Court, Kannur. The suit filed for permanent injunction was dismissed by the trial court and confirmed in appeal by the lower appellate court. Hence the Second Appeal .The parties hereinafter referred to as plaintiffs and defendants as arrayed in the suit. 2. The plaintiffs' case is as follows:One Ahammed Haji assigned 3 cents of property to Aloor Pakeer Muhammed as per Ext.A1 registered assignment deed. The said Aloor Pakeer Muhammed lateron assigned one cent out of it to the mother of the plaintiffs as per Ext.A2 assignment deed. The said one cent of property is the plaint schedule property. After the death of the mother of the plaintiffs, the plaintiffs have been in continuous and uninterrupted possession of the plaint schedule property . According to the plaintiffs the plaint schedule property which lies by the side of a cut road has been in their possession since Ext.A2. While so, the 1st defendant- Municipality issued Ext.A5 notice stating that the plaintiffs are unauthorisedly occupying a portion of the pathway. The plaintiffs are R.S.A. No. 1053 of 2008 -2- challenging Ext.A5 notice issued by The 1st defendant-Municipality to the 2nd plaintiff, demanding vacant possession of the plaint schedule property stating that the same is vested with the1st defendant-Municipality. 3, The defendants 1 to 2 are the Kannur Municipality represented by its Commissioner and the Secretary of the Kannur Municipality. The State of Kerala represented by District Collector, Kannur, is arrayed in the suit as a supplemental 3rd defendant. 4. Before the trial court the parties let in evidence viz. PW1, Exts.A1 to A5, B1 to B6, .C1 and C2 5. The defendants 1 and 2 filed a joint written statement. According to them neither the plaintiffs nor their predecessors had any right, possession or ownership over the plaint schedule property at any point of time. It is a vacant land located on the northern side of Labba Street and is used as a pathway and vested with the Panchayat. It is a part of a strip of land lying between T.S. No. 867 and 865 and is used as a pathway by persons on its northern and southern sides. The plaintiffs with intention to annexe the plaint schedule property effected some improvements on it six months back by planting plantains without the consent of the 1st defendant -Municipality. They also filed application before the Tahsildar Kannur to get the survey plan by showing the plaint schedule property as part of their property. According to defendants 1 and R.S.A. No. 1053 of 2008 -3- 2 , on getting application from the plaintiffs the officials of 3rd defendant measured the property and found that the pathway is vested with the 1st defendant-Municipality and informed the plaintiffs with copy to defendants 1 and 2 that the plaintiffs are not entitled to get the survey plan with respect to the plaint schedule property 6. The Commissioner also identified the plaint schedule property as plot PQEF. The contested issue in the suit is whether plot PQEF is a part of Public road leading from Labba street . The Commissioner also reported that the property( ABCDEF) in Ext.C1 is the item No6 of Ext.A1 property ,that the said property is marked as a lane in the plan maintained by the Kannur Municipality 7. The specific contention raised by the defendants 1 and 2 is to the effect that the plaintiffs have no right or title over the plaint schedule property, The trial court observed that the plaintiffs had a bounden duty to prove their title over the plaint schedule property and for that purpose the plaintiffs ought to have amended the the plaint incorporating the prayer for a relief of declaration as to their title. Even though the plaint has been amended repeatedly, no such declaratory relief is prayed for by the plaintiffs. 8. Ext.B1 to B6 are the proceedings initiated by the defendants directing the plaintiffs to vacate the plaint schedule property. Ext.B1 is the letter sent by the Tahsildar to the 2nd defendant informing that the R.S.A. No. 1053 of 2008 -4- mother of the plaintiffs have committed trespass into the plaint schedule property Ext.B2 proceedings of the Tahsildar dated 29.8.1998 shows that the survey plan with respect to the plaint schedule property cannot be issued to the plaintiffs as the plaint schedule property is the property vested with defendants 1 and 2. Ext.B3 is the notice issued under Section 376(3) of the Kerala Municipalities Act to the mother of the plaintiffs by 2nd defendant directing her to vacate the plaint schedule property within 7 days from 24.9.1998. Ext.B4 is another notice dated 14.1.1999 issued under Section 376 (3) of the same Act by the 1st defendant- Municipality to the 2nd plaintiff with respect to the plaint schedule property .Exts. B1 to B4 documents supports the contention of the defendants. 9. The trial court relied on Ext.B1 to B4 and held that the plaint schedule property forms part of the cut road and that the same is vested with the 1st defendant-Municipality. The trial court also held that on receipt of a notice under Section 376(3) of the Municipalities Act,the remedy available to the plaintiffs, is to file a statutory appeal under Section 509 of the said Act before the Appellate Authority, that since plaintiffs have not resorted to the remedies as per the above said Section,and that Section 563 of the said Act bars the filing of the suit The report of the Commissioner indicates that the plaint schedule property along with the rest of the property tallies with the survey plan showing the same to be a lane. For the aforesaid reasons and placing reliance on Exts.B1 to B6 the trial court held that possession over the plaint schedule property is not R.S.A. No. 1053 of 2008 -5- substantiated by the plaintiffs and that despite receipt of Ext.B3 and B4 notices, no statutory appeal is preferred, the prayer for injunction cannot be allowable. 10. The plaintiffs re-agitated the issues before the lower appellate court. The lower appellate court also agreed with the findings of the trial court on the basis of evidence and concluded that the appeal is without any merit. The lower appellate court also came to the same conclusion of the trial court that the plaintiffs have failed in proving the possession of the plaint schedule item . The lower appellate court also held that the remedy open to the plaintiffs to challenge the Exhibits B3 and B4 notices are not availed of, by them. The lower appellate court concluded that since no grounds are made out by the plaintiffs to interfere with the judgment and decree passed by the trial court, the appeal is liable to be dismissed.. 11. Before this Court the matter was again agitated by the plaintiffs. I find that the judgments and decrees passed by the courts below are justifiable for the reasons stated in the earlier paragraphs. The confirmation of the trial court's judgment and decree, by the lower appellate court, cannot be said to be wrong. In the circumstances the only conclusion possible is that the plaintiffs have failed to prove the possession over the plaint schedule property and therefore they are not entitled to injunction as prayed for. The grounds urged in this Second Appeal are not sufficient enough to invoke this Court's jurisdiction under section 100 of the C.P.C. The questions are decided by the courts below R.S.A. No. 1053 of 2008 -6- purely on the basis of facts, evidence and circumstances. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and dismissed in limine. 12. The learned counsel for the plaintiffs/ appellants requested this court to give an opportunity to challenge Exts.B3 and B4 notices issued by the 1st defendant-Municipality before the Appellate Forum as provided under the Municipalities Act I am of the view his request is reasonable. The courts below found that the plaintiffs have not approached the Appellate Authority for redressing their grievances. In the circumstances the plaintiffs are at liberty to file the statutory appeal against Exts. B3 and B4 notices before the Appellate Authority provided under the Kerala Municipalities Act and agitate their contentions . The Appellate Authority shall consider the case of the plaintiffs on merit and pass appropriate orders as expeditiously as possible, if a statutory appeal is filed by the plaintiffs irrespective of the fact that the said appeal is barred by the limitation period mentioned in the Kerala Municipalities Act. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 1053 of 2008 ---------------------------- JUDGMENT 10th November, 2009