IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 RSA.No. 1323 of 2011() ---------------------- AS.71/2008 of ADDL.DISTRICT COURT (ADHOC)-II, MANJERI OS.50/2004 of MUNSIFF COURT, MANJERI .................... APPELLANTS/APPELLANTS/DEFENDANTS ----------------------------------------- 1. KOCHUMUTTATH BENNY, AGED 44 YEARS, S/O. THOMAS, PULLIPPADAM AMSOM, DESOM, P.O.PULLIPPADAM (VIA) MAMBAD, NILAMBUR TALUK. PIN-679329. 2. SHAFI, AGED 43 YEARS, S/O. PUNNAPPALA ABU, PULLIPPADAM AMSOM DESOM, P.O.PULLIPPADAM, NILAMBUR TALUK, (VIA) MAMBAD, MALAPPURAM-679329. 3. PAIKKATTUPARAMBIL MUHAMMEDKUTTY, AGED 45 YEARS, S/O. VEERANKUTTY, THARISU, PULLIPPADAM AMSOM DESOM, P.O.PULLIPPADAM, MALAPPURAM DISTRICT-679329. BY ADV. SRI.M.A.ABDUL HAKHIM SRI.M.G.ANON RESPONDENT(S):/RESPONDENT/ PLAINTIFF ------------------------ SARADA, AGED 70 YEARS, D/O. THEKKETHIL RAMAN PILLAI, NILAMBUR AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT-679329. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1323 OF 2011 --------------------------------------------- Dated 19th November, 2011 JUDGMENT Appellants are defendants in O.S.50/2004 on the file of Munsiff Court, Manjeri. Respondent is the plaintiff. Respondent instituted the suit seeking a decree for permanent prohibitory injunction apprehending widening of the beaten track which lies on the south of the plaint schedule property, contending that respondents have no right to trespass into the plaint schedule property or widen the existing way without her consent or permission. Plaint schedule property is 1 acre in survey No.104/1 of Pullippadam village of Nilambur Taluk in Malappuram District. Respondent has admittedly title RSA 1323/11 2 to the plaint schedule property under Ext.A1. Appellants resisted the suit contending that a pakka road exists both on the south and west of the plaint schedule property and it is panchayat road formed by the people of the locality and there was no attempt to widen the existing way as the road was existing on the date of the suit. According to the appellant the original way was widened by the people and respondent is not entitled to the decree sought for. Along with the suit the respondent had taken out a commission. The Commissioner submitted Ext.C1 report and C2 plan. Commissioner did not note any road either on the south or west of the plaint schedule property. On the allegation that subsequent to the filing of the suit appellants widened the way on the south and west and formed a road, RSA 1323/11 3 the respondent got a direction to the Commissioner to inspect the property again. The Commissioner inspected the property and submitted Ext.C3 report and C4 plan. When the Commissioner inspected for the second time, it was found that the way which was in existence on the south and the west when he inspected originally, were widened into pakka roads by demolishing the western mud wall of the plaint schedule property and the southern boundary encroaching upon a portion of the plaint schedule property. Respondent thereafter filed an application under Rule 17 of Order VI of Code of Civil Procedure to amend the plaint seeking a decree for mandatory injunction to restore the property to its original position and for realisation of Rs.10,000/-, which is necessary for restoring the property alleging RSA 1323/11 4 that after institution of the suit appellant demolished the boundary wall and encroached upon portion of the property and destroyed rubber plants and constructed pakka road. Appellants filed additional written statement contending that the road was in existence and the way was widened by the general public, though after the suit and respondent is not entitled to a decree for mandatory injunction or restoration of the property. 2. Learned Munsiff on the evidence of Pws.1 to 5, DWS.1 and 2,Exts.A1 to A8, B1 to B4 and C1 to C6 found that though the suit was instituted on 13/2/2004 and order of temporary injunction was also granted against the appellants on the same day, as 14/2/2004 and 15/2/2004 were holidays,the order was served on the application only on 17/2/2004. But the RSA 1323/11 5 Commissioner inspected the property on 13/2/2004 itself and Ext.C1 report with Ext.C2 plan establish that when the Commissioner inspected the property, there was only a beaten track on the south and west of the plaint schedule property. Learned Munsiff also found that when the Commissioner inspected subsequently for submitting Ext.C3 report and C4 plan on 8/3/2004, a pakka road was constructed both on the south and west and it was done subsequent to the date of his first inspection. Learned Munsiff on appreciation of the evidence entered a factual finding that it was done by the appellants subsequent to the suit and it is not a Panchayat road and appellants have no right to trespass into the plaint schedule property or widen the road either on the south or west. Therefore, he RSA 1323/11 6 granted a mandatory injunction directing the appellants to restore the plaint schedule property to its original position as per the measurement given in Ext.A1 title deed and on the failure of the appellants to restore the way, respondent was permitted to realise Rs.10,000/- from the appellants. 3. Appellants challenged the decree before Additional District Court, Manjeri in A.S.71/2008. Learned Additional District Judge on reappreciation of the evidence confirmed the factual findings and held that as appellants have widened the existing beaten track on the south and west of the plaint schedule property into pakka road by encroaching upon the plaint schedule property, respondent is entitled to get the plaint schedule property restored to its original position and therefore, decree for RSA 1323/11 7 mandatory injunction granted is perfectly correct. But holding that trial Court should not have fixed the quantum of expenses for restoration at Rs.10,000/-, it was provided that it is to be fixed in execution. Appeal was disposed accordingly. It is challenged in the second appeal. 4. Learned counsel appearing for the appellants was heard. 5. Argument of the learned counsel is that Ext.C1 report does not show that there was a beaten track on the south and west of the plaint schedule property and the application for amendment filed by the respondent claiming a decree for mandatory injunction shows that there existed a beaten track on the west of the plaint schedule property and neither Ext.C1 report nor Ext.C3 RSA 1323/11 8 report give any data with regard the actual width of beaten track which existed, when the Commissioner inspected the property immediately after institution of the suit and in such circumstances, direction to restore the plaint schedule property to its original position is not sustainable. Learned counsel argued that evidence of PW3 show that respondent has lost some property on the east and therefore, if one acre is to be fixed from the present existing boundary, it would result in providing land to the further south to the respondent and respondent is not entitled to such a decree. Learned counsel also argued that the existing way was widened not by the appellants but by the general public and in such circumstances, decree granted is not sustainable. RSA 1323/11 9 6. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Title of the respondent to the plaint schedule property under Ext.A1 title deed is not disputed. Ext.A1 establishes that respondent has title to the plaint schedule property. Though Commissioner did not measure the property with reference to title deed when he inspected the property for the first time immediately after institution of suit, at the time of the second inspection, as seen from Ext.C3 report, plaint schedule property was identified with reference to the title deed and it was found that the plaint schedule property is inclusive of the encroached portion taken for widening the road viz. plot BAFEG. Learned Munsiff based on the evidence entered a factual finding that when RSA 1323/11 10 the suit was filed, there was only beaten track both on the west and south of the plaint schedule property. It is true that in Ext.C1 report the Commissioner has not specifically reported that there is a beaten track on the west of plaint schedule property and he has only reported about the way attempted to be widened on the south. Evidently when the suit was filed respondent was unaware of the intention of the appellants to widen the western beaten track also and that could be the reason why it is not alleged in the plaint and the Commissioner did not specifically reported existence of the beaten track on the west, in Ext.C1 report as it was not found to be relevant at that time. But when the Commissioner inspected the property for the second time and submitted Ext.C3 report, RSA 1323/11 11 Commissioner has unambiguously reported that when he inspected the property for the first time, there existed a beaten track both on the south and west. The Commissioner found that beaten track on the south and west were widened by encroaching into the plaint schedule property by destroying the western mud wall which separates the plaint schedule property from the existing beaten track as well as the boundary on the south. That factual finding was confirmed by the learned District Judge on reappreciation of evidence. In the light of Exts.C1 and C3 reports and the evidence on record, even if this Court is to reappreciate the evidence, the factual finding cannot be interfered. 7. When the suit was filed, there existed no road either on the west or south of RSA 1323/11 12 the plaint schedule property. Evidence establish that after institution of the suit and the respondent obtained an interim order of temporary injunction restraining the appellants from widening the road, the existing way was widened by encroaching a portion of the plaint schedule property. True, order of temporary injunction was not served immediately after the order was passed and it was served only on 17/2/2004 and thereby the appellants could save themselves from proceeding for violation of order of temporary injunction. But when after the institution of the suit, appellants widened the existing way, courts below rightly found that respondent is entitled to a decree for mandatory injunction and for restoration of the plaint schedule property into its original position. RSA 1323/11 13 8. Though learned counsel argued that as the respondent lost property on the east and if the plaint schedule property is to be fixed with reference to the extent seen in Ext.A1, respondent would claim property further towards the south and west, for which he is not entitled to. The decree granted by the trial Court makes it absolutely clear that the property is to be identified by the executing Court, with reference to the measurement given under Ext.A1 title deed. Courts below need not specifically show that the property has to be identified from the undisputed point as, that is the only method to identify the disputed property. As by the decree, respondent could claim only the property covered under Ext.A1 title deed, both on the west and south, appellants cannot have RSA 1323/11 14 any grievance for the decree for mandatory injunction on that ground. 9. Learned counsel then argued that though trial Court fixed Rs.10,000/- as value for restoration of the plaint schedule property to its original position, first appellate Court set aside that quantum and directed it to be fixed by the executing Court. It is submitted that it may even exceed Rs.10,000/- and respondent has only claimed Rs.10,000/- and paid court fee only for that amount and in such circumstances, it cannot exceed Rs.10,000/-. There is force in the submission. Trial Court fixed quantum at Rs.10,000/-. Respondent did not challenge the quantum, even by filing a cross objection. First appellate Court only found that quantum is to be fixed by the executing Court. That does not mean that RSA 1323/11 15 quantum could exceed Rs.10,000/- which was awarded by the trial Court. It would only mean that cost for restoration of the property is to be fixed by the executing court and it shall not exceed Rs.10,000/-, and shall be limited to the actual expenses. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.