IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 SA.No. 328 of 1998(E) ---------------------------------- AS.72/1992 of SUB COURT, OTTAPPALAM OS.251/1988 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANT(S): ------------------------ (PLAINTIFF IN THE TRIAL COURT AND APPELLANT IN THE LOWER APPELLATE COURT.) GOPALAKRISHNAN, SON OF MULLAPARAMBIL KRISHNAN CHETTIAR, KANNIAMPURAM AMSOM AND DESOM, KANNIAMPURAM P.O., OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV.SRI.G.SREEKUMAR(CHELUR) RESPONDENT(S): ------------------------- (DEFENDANTS IN THE TRIAL COURT AND RESPONDENTS IN THE LOWER APPELLATE COURT). 1. THE STATE OF KERALA REP.BY THE DISTRICT COLLECTOR,PALAKKAD. 2. THE TAHSILDAR, OTTAPALAM, PALAKKAD DISTRICT. R1 & R2 BY GOVERNMENT PLEADER SRI.DILIP.S. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------- S.A No.328 of 1998 -------------------------- Dated this the 17th August, 2010 J U D G M E N T It is unnecessary to go into the facts of the case in detail as the appeal can be disposed of on a short ground. 2. Suffice to say that apprehending possible dispossession by the respondent, plaintiff approached the court for reliefs. Plaintiff runs a tea shop. According to him, he had not encroached into the puramboke land. He was running a tea shop in the shed put up by him over land in respect of which he had tenancy right. 3. Respondent contested the suit pointing out the claim of plaintiff is not true and is having a tea shop in the puramboke land. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and Exts.A1 to A2 (c) were marked from the side of plaintiff. Defendant had examined DW1 and Exts. B1 to B20 were marked. Exts. C1 to C.4 are the commission report and plan. S.A No.328 of 1998 2 5. On an appreciation of evidence, the trial court came to the conclusion accepting various statements in the commission report and plan filed against the plaintiff and non-suited the plaintiff. 6. Plaintiff carried the matter in appeal as A.S. No.72/1992 before the Sub Court, Ottappalam. The lower appellate court found that Exts. C3 and C4 is acceptable but declined relief to the plaintiff on the ground that he had not come to the court with clean hand. The appeal was dismissed. Hence the Second Appeal. The following questions of law have been formulated in this appeal. "A. Having found that a portion of the plaint schedule property is not included in the Government poramboke and that over that portion of the plaint schedule property, Government have no claim, was the court below justified in not granting the relief of injunction in respect of the portion of the property which is admittedly in the possession of the plaintiff and over which the Government have no claim? B. Was the court below justified in declining the relief of injunction on the ground that whole of the case putforward by the plaintiff is not true? S.A No.328 of 1998 3 7. Learned counsel appearing for the appellant pointed out that the finding of the lower appellate court is that a major portion of the tea shop is situated in a private land and a small portion projected into a puramboke land. 8. Learned counsel drew attention of this Court to the fact that even if he had encroached on a portion of poramboke land no action can be taken by the respondent as against him for running the tea shop situated in the private property. 9. There is considerable force in the above submission. The lower appellate court has given convincing and cogent reasons as to why Exts. C3 and C4 could be accepted. The reasons given for overruling the decision of the trial court are convincing. It is found by the court below that major portion of the tea shop run by the appellant is in private property and small portion of the shop projected into the poramboke land. Respondent can take action only against the encroachment of puramboke land. It is submitted that, that portion has already been S.A No.328 of 1998 4 demolished. 10. If that be so, respondents have no right to take action against the plaintiff in respect of the property comprised in Sy. No.28/5A which is a private land. In case the plaintiff had not removed the encroached portion, respondents will be at liberty to take action as are available to them, in law. With the above observations, the appeal is allowed to the above extent. There will be no order as to costs. P.BHAVADASAN, JUDGE ma