IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 Ex.SA.No. 9 of 2011() ---------------------------- AS.130/2009 of SUB COURT,NEYYATTINKARA E.A.No.783/2008 IN E.P.NO.97/2008 IN OS.551/1999 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANT:-APPELLANT/CLAIM PETITIONER ---------------------------------------------------------------------- THE SECRETARY, PERUMKADAVILA GRAMA PANCHAYATH, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT(S): RESPONDENTS/PLAINTIFFS 1 TO 5 & DEFENDANTS 1 TO 4 ------------------------------------------------------------------------------------------------------------ 1. JOSHWA NADAR RAGHAVAN NADAR, VELIKKUZHI VADAKKE VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM.695121 2. RAGHAVAN NADAR VICTOR, VELIKKUZHI VADAKKE VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM. 3. VELAYUDHAN NADAR KUMARU NADAR, CHARUMKUZHI PUTHEN VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM.695121 4. ANNAMMA, W/O.VELAYUDHAN NADAR KUMARU NADAR, CHARUMKUZHI PUTHEN VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM.695121 5. JOSEPH NADAR (VARGHESE), CHARUMKUZHI PUTHEN VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM.695121 6. MUTHUSWAMI CHRISTUDAS, PUTHUVAL PUTHEN VEEDU, ALATHOOR WARD, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM.695121 7. BHANU NADAR FRANKLIN ALIAS SAJJU, CHARUMKUZHI PUTHEN VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM.695 121 8. LAZER NADAR KUTTAPPAN, CHARUMKUZHI PUTHEN VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM.695121 9. SUKUMARAN JOHNY, CHARUMKUZHI PUTHEN VEEDU, MARAYAMUTTOM DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM.695121 THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/06/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Ex.S.A. No. 9 OF 2011 =========================== Dated this the 21st day of June,2011 JUDGMENT Appellant is the claim petitioner in E.A.783/2008 in E.P.97/2008 in O.S.551/1999 on the file of First Additional Munsiff Court, Neyyattinkara. Repondents 1 to 5 are the decree holders. O.S.551/1999 was instituted seeking a decree for fixation of the boundary contending that respondents 6 to 9 had trespassed into a portion of the property of respondents 1 to 5 and widened the existing way and they have no right to do so and therefore the boundary is to be fixed. The suit was decreed on 26.9.2001. The claim petitioner, Secretary of the Panchayat was summoned in the suit to produce the road register. He was also examined as a witness and produced the document. It is Ex.S.A.9/2011 2 thereafter learned Munsiff granted a decree. Though that judgment was challenged in A.S.46/2002 before Sub Court, Neyyattinkara, appeal was dismissed on 20.9.2007. That judgment has become final. It is thereafter E.P.97/2008 was filed for execution of the decree. It is at that stage E.A.783/2008 was filed by the Panchayat contending that the decree is not binding on the Panchayat as Panchayat is not a party to the suit and Pulimamkode, Charumkuzhy, Thumpode road is a road included in the road register maintained by Perumkadavila Grama Panchayat and a portion of the road passes through the property of respondent 1 to 6 and the Panchayat was attending to the periodical maintenance of the road and spent Rs.7 lakhs for its maintenance and the road is vested in the Panchayat and neither the decree holders nor the judgment debtors have any right over the road vested in the Panchayat and the decree was collusively obtained by the parties and it is not binding on the Panchayat and therefore the decree Ex.S.A.9/2011 3 cannot be executed by restoring any portion of the road vested in the Panchayat to the decree holders. Learned Munsiff on the evidence found that the suit was instituted on 9.6.1999 and Ext.A1 the resolution of the Panchayat itself shows that it was decided to include the road in the road register only on 15.5.1999 and the amounts were spent subsequent to the date of the decree and there is no case that there was any surrender evidenced by any document and there was no acquisition and therefore the Panchayat is not competent to obstruct the decree. Appellant challenged the judgment before Sub Court, Neyyattinkara in A.S.130/2009. Learned Sub Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the Ex.second appeal. 2. Learned counsel appearing for the appellant was heard. 3. The argument of the learned counsel is that Ext.A1 resolution of the Panchayat and Ex.S.A.9/2011 4 evidence adduced establish that the road was included in the road register maintained by the Panchayat and therefore the road is vested in the Panchayat and Rs.7 lakhs was spent by the Panchayat for maintenance of the road and in execution of the decree, the decree holders are not entitled to take any portion of the road into their possession by constructing a compound wall and in such circumstances, courts below should have upheld the claim of the Panchayat and should not have allowed to execute the decree so as to take a portion of the road. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 5. Though the Panchayat was not a party to O.S.551/1999, Ext.B1 judgment in the said suit shows that the very dispute in the suit was with regard to the widening of the existing way. Though respondents 6 to 9, the defendants in the suit, raised a contention that the way was widened by the Ex.S.A.9/2011 5 Panchayat and it is a road vested in the Panchayat, after summoning the records from the Panchayat and examination of the Secretary of the Panchayat, the suit was decreed holding that respondents 6 to 9 had no right to trespass into any portion of the plaint schedule property or to annexe it to the existing way. Though the appellant has a case that the road stands vested in the Panchayat, there is no case that there is any record in the Panchayat to show that the road had vested in the Panchayat before 15.5.1999, the date of the resolution evidenced by Ext.A1 to include the road in the road register. There is no case for the Panchayat that there was any surrender by respondents 1 to 3, evidenced by any written document. There is also no case that there was any acquisition. In such circumstances, the Panchayat cannot contend that any portion of the property of respondents 1 to 5 was converted into a road, in the absence of a valid surrender or acquisition. In such circumstances, the Panchayat is not entitled to Ex.S.A.9/2011 6 contend that portion of the property belonging to respondents 1 to 5 as found by the learned Munsiff in O.S.551/1999, cannot be included within a compound wall to be constructed pursuant to the decree for fixation of the boundary. The appeal is dismissed. It is made clear that the dismissal of the appeal will not effect the right of the Panchayat to seek acquisition of the property, if it is so advised. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006