IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 SA.No. 597 of 2000(D) --------------------- OS.1080/1994 of III ADDL. MUNSIFF COURT,THRISSUR A.S.196/1996 OF I ADDL. DISTRICT COURT, THRISSUR .................... APPELLANT(S): -------------------- THRISSUR MUNICIPALITY, REP. BY ITS SECRETARY, THRISSUR. BY ADV. SRI.K.P.VIJAYAN SRI.V.M.SYAM KUMAR SMT.KRIPA ELIZABETH MATHEWS SRI.V.N.HARIDAS RESPONDENT(S): --------------------- 1.SMT.NARAYANIKUTTY AMMA, D/O.MOOTHEDATH KOCHUKUTTY AMMA, MOOTHEDATH LANE, VALIYANNUR DESOM, THRISSUR TALUK (DIED ADDL.R2 IMPLEADED) ADDL.R2 IMPLEADED : 2. M.MADHAVANKUTTY, S/O.SMT.NARAYANIKUTTY AMMA, MOOTHEDATHU HOUSE, VELIANNUR P.O., THRISSUR - 4. ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE FOR R2 SMT.MINI JOHN PAREMALIL SMT.M.M.DEEPA FOR R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2011, THE COURT ON 25.11.2011 DELIVERED THE FOLLOWING: M.L.JOSEPH FRANCIS, J. ----------------------------------------------- Second Appeal No.597 of 2000 ----------------------------------------------- Dated 25th November, 2011. J U D G M E N T This Second Appeal is filed by the defendant Municipality in O.S.1080/94 on the file of III Additional Munsiff Court, Thrissur. The respondent herein was the plaintiff in that suit, which was filed by her for a permanent prohibitory injunction. 2. O.S.1080/94 was filed by the respondent herein against the appellant seeking a perpetual injunction restraining the appellant from trespassing into the plaint schedule property and preventing them from demolishing the compound wall and from filling up the well allegedly situated in the plaint schedule property. According to the appellant, in fact, 0.0252 hectares of land comprised in Sy.No.1047/2-5 of Thrissur village which includes part of the plaint schedule property was acquired by the Tahsildar (L.A.), Thrissur as per Award No.7/91 for the purpose of widening the Municipal road. The respondent had received the compensation for the acquired land and for all the structures and improvements thereon as per Award No.7/91 S.A.597/2000 2 and the possession of the property was taken over by the appellant on 19.12.91. But thereafter the respondent encroached into the acquired property and constructed a new compound wall having a length of 46.6 meters from east to west. The compound wall has been constructed so as to pass on the well in the acquired property into the balance property in the possession of the respondent. 3. In the trial court, PW1 and PW2 were examined and Exts.A1 to A3 were marked. From the side of the appellant, the Municipal Surveyor was examined as DW1 and Exts.B1 and B2 series were marked. The Advocate Commissioner's report and rough sketch were marked as Exts.C1 and C1(a). 4. The learned Munsiff, on considering the evidence, found that the plaintiff failed to prove that she is the owner of the property where she built up the new boundary wall and that the plaintiff is not entitled to get an injunction as prayed for and the suit was dismissed with costs. Against that judgment and decree, the plaintiff filed an appeal as A.S.196/96 before the I Additional District Court, Thrissur, which was allowed and the appellant/plaintiff was granted a decree for permanent S.A.597/2000 3 prohibitory injunction restraining the respondent and its men from demolishing/destroying the compound wall, well or other structures in the schedule property. It was, however, made clear that the decree granted will not debar the respondent from measuring the property with notice to the appellant, issuing notice/provisional order in case it is satisfied about the alleged trespass and initiating further action on its basis, as provided under law. Against that judgment and decree, the defendant filed this Second Appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the respondent. 6. At the time of argument, learned counsel for the appellant raised the following contentions : The appellate court failed to appreciate Section 41(i) of the Specific Relief Act, 1963 in its full ambit and import. The appellate court failed to appreciate that injunction is a discretionary form of specific relief and that the court should refuse an injunction where the state of things complained of is the outcome of the plaintiff's own conduct, and where he does not satisfy the court that his own acts and dealings in the matter have been fair and honest. S.A.597/2000 4 The court failed to appreciate the well accepted legal dictum that before granting the relief of perpetual injunction, the court must find or declare the existence of such right in the plaintiff and that such right is being illegally invaded. The trial court had correctly gone into the question of legal right of the respondent at the first instance and had rightly ascertained from the evidence that no such legal right existed with the respondent. The finding of lower appellate court, that the trial court was wrong when it straight away went into the question whether there was any trespass or not, is patently wrong and a deviation from the well settled principles of law. Learned counsel for the respondent/plaintiff supported the judgment of the lower appellate court. 7. Section 41(i) of the Specific Relief Act makes it clear that the grant of equitable relief of injunction is discretionary and the court must very well refuse it, if a party has by his conduct forfeited its claim for the same. Being an equitable remedy, injunction cannot be granted to a plaintiff who has not come with clean hands. A perusal of the Munsiff Court judgment shows that the learned Munsiff, after verifying S.A.597/2000 5 the acquisition proceedings contained in Ext.B1 file in detail, found that the respondent had received compensation to the tune of Rs.5,734.32 and Rs.1,722.37 respectively for the well and the compound wall situated in the acquired property. When the plaintiff was examined as PW1, she deposed that there was only one well in the original 18 cents of her property and that the said well was in the northern portion of the land which was subsequently acquired by the Municipality. She reiterated the same in her cross examination and in the plaint too, she did not have a case to the contrary. Subsequently in her re-examination she improved her earlier version and deposed that she had dug up a new well in the north eastern corner of the plaint schedule property and it is over this well that the Municipality was alleging encroachment. The learned Munsiff noted that in Ext.C1 report, the Commissioner has reported that the well in the disputed property is an old one. In the plaint the respondent had only averred about the cost of the newly constructed compound wall in the plaint schedule property and there was not even a whisper about the cost incurred for the digging up of a new well. So it was clear that S.A.597/2000 6 the story of digging up of a new well was an after-thought and the same was taken note of by the learned Munsiff. Taking into consideration all these facts, the learned Munsiff rightly came to the conclusion that the existing well in the plaint schedule property was the same as that mentioned in the acquisition proceedings, for the acquisition of which the respondent had already been adequately compensated. The trial court found that after receiving the compensation amount, the respondent had constructed a new compound wall so as to reduce the well into her possession. The court having found so, applied the well accepted legal dictum that no injunction can be issued in favour of a person who gained unlawful possession or interest in the subject matter and dismissed the suit with costs. The lower appellate court granted prohibitory injunction without considering these vital aspects of the matter. 8. The decree refusing prohibitory injunction is in the discretion of the trial court and ordinarily, the appellate court will not interfere with the exercise of discretion by the trial court and substitute its own discretion. But, interference with the discretionary decree may be justified if the trial court S.A.597/2000 7 acts arbitrarily or perversely or in disregard to the sound legal principles or without taking into consideration all the relevant records. Since the learned Munsiff refused to grant prohibitory injunction based on sound legal principles, the lower appellate court is not justified in interfering with that discretion of the trial court and as such, the judgment and decree of the lower appellate court have to be set aside and the suit has to be dismissed. 9. Accordingly, this Second Appeal is allowed. The judgment and decree in A.S.196/1996 on the file of the I Additional District Court, Thrissur in granting prohibitory injunction is set aside and that appeal is dismissed and O.S.1080/1994 on the file of III Additional Munsiff Court, Thrissur is dismissed without costs. Parties are directed to suffer their respective costs in this Second Appeal. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.