IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 RSA.No. 831 of 2009() ------------------------------- AS.342/2001 of ADDL. DISTRICT COURT (ADHOC) FAST TRACK-I, THRISSUR OS.835/1994 of PRL.SUB COURT, IRINJALAKUDA .................... APPELLANTS/RESPONDENTS 2, 4 TO 9/DEFENDANTS 2, 4 TO 6 AND 8 TO 10: ----------------------------------------------------------------------------------------------------------------- 1. JOHNSON, AGED 44 YEARS, S/O. THEKKETHALA VAREED, AVITTATHUR DESOM, KUDUPPASSERY VILLAGE, MUKUNDAPURAM TALUK. 2. VARGHESE, AGED 49 YEARS, S/O. PATTATH CHAKKUNNY, AVITTATHUR DESOM, KUDUPPASSERY VILLAGE, MUKUNDAPURAM TALUK. 3. BHARATHAN, AGED 48 YEARS, S/O. KUDUKUTTY GOVINDAN, AVITTATHUR DESOM KUDUPPASSERY VILLAGE, MUKUNDAPURAM TALUK. 4. THOMAS,AGED 70 YEARS, S/O. KOKKADAN PAILOTH , KOTTANELLUR DESOM, KUDUPPASSERY VILLAGE, MUKUNDAPURAM TALUK. 5. SUNIL, AGED 45 YEARS, S/O KODALIKKATTIL RAMAKRISHNAN, AVITTATHOOR DESOM, KUDUPPASSERY VILLAGE, MUKUNDAPURAM TALUK. 6. DAVIS, AGED 48 YEARS, S/O. PLAMUTTATH KUTTIYIL MATHEW, KUTTANELLUR DESOM, KUDUPPASSERY VILLAGE, MUKUNDAPURAM TALUK. 7. LAZAR, AGED 63 YEARS, S/O. THUDIYAN KOCHUDEVASSY, AVITTATHUR DESOM, KUDUPPASSERY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.V.M.KRISHNAKUMAR, SMT.P.A.ANITHA. RSA.No. 831 of 2009 RESPONDENTS/APPELLANTS 1 & 2 & RESPONDENTS 1 & 10/ PLAINTIFFS 1 & 2 & DEFENDANTS 1 & 11: ------------------------------------------------------------------------------------------- 1. DEVASSY, AGED 60 YEARS, S/O. OUSEPUNNY KADUKUTTIPARAMBIL HOUSE, AVITTATHUR DESOM, MUKUNDAPURAM TALUK. 2. GLADIS, W/O. KADUKUTTIPARAMBIL DEVASSY, AVITTATHUR DESOM, KADUPPASSERY VILLAGE, MUKUNDAPURAM TALUK. 3. PAULOSE, AGED 65 YEARS, S/O. KADUKUTTIPARAMBIL OUSEPUNNY, AVITTATHUR DESOM, KADUPPASSERY VILLAGE, MUKUNDAPURAM TALUK. 4. VELUKKARA GRAMAPANCHAYATH, REP. BY SECRETARY, VELUKKARA, PANCHAYATH, P.O. KOTTENELLUR, THRISSUR DIST. R1 & R2 BY ADV. SRI.K.G.BALASUBRAMANIAN. R3 BY ADV. SRI.JIJO PAUL. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2010, ALONG WITH RSA NO. 833 OF 2 009, THE COURT ON 21/07/2010 DELIVERED THE FOLLOWING: rs. P.BHAVADASAN, J. ------------------------------------------ RSA Nos.831 & 833 of 2009 ------------------------------------------ Dated 21st July 2010 Judgment These appeals arise from OS No.835/94 before the Sub Court, Irinjalakuda. Defendants 2, 4 to 6 and 8 to 10 are the appellants in RSA No.831/09 and the first defendant in the suit has filed RSA No.833/09. The parties and facts are hereinafter referred to as they are arrayed before the Trial Court. 2. The suit was one for injunction. According to the plaintiffs, plaint Item No.1 was owned by the first plaintiff and Item No.2 was owned by the second plaintiff, they having obtained it under Exts.A1 and A2 sale deeds respectively. Both the items are lying contiguously. Earlier, the properties were paddy lands and they were reclaimed and converted into coconut gardens. There is a ridge on the eastern side of Item No.1 property, having a width of 1½ kole. Similarly, on the southern side of item No.2, there RSA Nos.831 & 833/09 2 is a ridge, having a width of one foot. Those ridges were being used by people in the locality as pathways. 3. The first defendant's property is situated on the eastern side of the plaint schedule property and beyond the ridge on the eastern side. The people of the locality at the instance of the panchayat decided to widen the road on the eastern side and on the southern side. The allegation is that with the intention of widening the road, the defendants trespassed into the property of the plaintiffs, demolished the boundary and tried to annexe a portion of the property on either side. The Panchayat had not acquired the property of the plaintiffs for the purpose of laying the road, nor had the plaintiffs surrendered any portion of their property for the same. On the basis of the above allegations, the suit was laid. 4. The defendants resisted the suit and denied the allegations in the plaint. According to them, there were pathways on the eastern and southern sides of the plaint schedule property and those pathways were being used by RSA Nos.831 & 833/09 3 the people of the locality. The plaint schedule properties are garden lands and therefore, there can be no ridges on the eastern and southern sides of the properties. They disputed the allegation that they tried to trespass into the plaint schedule property and construct a pathway through it. They also disputed that they had any role to play in the laying of the pathway, as alleged in the plaint. There was a proposal by the panchayat for construction of a pathway through the eastern side of the plaint schedule property and on the western side of the first defendant's property connecting the road on the north and south. They disputed the correctness of the schedule of the properties shown in the plaint. On the above grounds, the defendants prayed for dismissal of the suit. 5. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs1-4 and documents marked as Exts.A1 to A19(a) from the side of the plaintiffs. The defendants examined DWs 1 to 3 and had B1 and B2 marked. Exts.C1, C1(a) and C2 RSA Nos.831 & 833/09 4 Commissioner's reports and plan were also marked. 6. The Trial Court found that there was an earlier suit between the first plaintiff and defendants 1 to 3, which was one for injunction. That suit was decreed in favour of the first plaintiff. The Trial Court found that there was no evidence to show that it was the defendants who had done anything to the properties of the plaintiffs. The Trial Court was also of the view that since the allegation was that the property was being used by the public, the suit had to be filed in a representative capacity. Holding so, the suit was dismissed. 7. The plaintiffs carried the matter in appeal as AS No.342/01 before the District Court, Thrissur. The District Court, on a reconsideration of the evidence, found that the Judgment and decree of the Trial Court are clearly unsustainable in law and accordingly, reversed the same. A decree was granted in favour of the plaintiffs. The said Judgment and decree are assailed in this appeal. RSA Nos.831 & 833/09 5 8. When the matter was taken up for hearing, the learned counsel for the appellants in AS No.831/09 represented that while the suit was pending, the Panchayat had laid a road on the eastern side of the property of the plaintiffs and there is no subsisting dispute between the parties as of now. But, the appellants in AS No.833/09 apprehend that if any mischief is committed by any one in the case with regard to the property of the plaintiffs, it is likely that an allegation may be made against the appellants herein as having violated the decree for injunction. It was pointed out that the appellants have no intention to trespass into the property of the plaintiffs at all and there is no necessity to do so. The learned counsel for the respondents, on the other hand, pointed out that merely because a road has come into existence, that does not mean that the threat is over and therefore, the matter needs to be considered on merits. 9. On going through the records and the evidence in the case, it is felt that the findings of the Trial RSA Nos.831 & 833/09 6 Court cannot be supported. The Commissioner's report is very clear regarding the high-handed actions of the defendants with respect to the property of the plaintiffs. Even after there was an interim order of injunction, the defendants appear to have continued the illegal activities and that necessitated the Commissioner to visit the property again at the instance of the plaintiffs. Two reports filed by the Commissioner are sufficient to show that the grievance of the plaintiffs is true. 10. The lower Appellate Court has noticed that even though there was a contention on behalf of the defendants that the description of the plaint schedule properties is incorrect, they were not able to explain as to what was the incorrectness in the description of the properties. It was also found that there was nothing to show that there was a pathway in existence as claimed by the defendants in the suit. The lower Appellate Court also found that the observation of the Trial Court that the plaintiff ought to have obtained a certified plan and RSA Nos.831 & 833/09 7 produced the same, is without force. 11. Ext.B1 is a compromise said to have been entered into between the first plaintiff and the first defendant on 11.06.1999. That agreement shows that the plaintiffs had agreed to surrender property having a width of 2 metres from the middle portion of the varamba for the construction of the road. However, the plaintiffs denied having executed Ext.B1 agreement. The Trial Court has observed that Ext.B1 was entered into after the suit had been instituted and it may not be proper to rely on that agreement. The lower Appellate Court also found it to be unconvincing. The lower Appellate Court has noticed that the so called agreement i.e, Ext.B1 was entered into after four years of the institution of the suit. Taking note of the observations made in the Commissioner's report, the lower Appellate Court was of the view that the claim made by the plaintiffs has been clearly established and they are entitled to the reliefs sought for. RSA Nos.831 & 833/09 8 12. On going through the Commissioner's report, the view taken by the lower Appellate Court seems to be fully justified. The lower Appellate Court, on an appreciation of the evidence, has entered a finding that there has been trespass into the property owned by the plaintiffs. That is a finding on facts, based on evidence in the case. It is not shown that the said finding is either perverse or not warranted by the evidence on record. 13. The apprehension of the appellants in RSA No.833/09 seems to be quite unfounded. If as a matter of fact, a road has already come into existence, there can be no further grievance for anybody. It is too much to believe that if any mischief is committed in the property of the plaintiffs by any body, the defendants will be hauled up. That apprehension by itself is not a ground to set aside the decree and there is no reason to believe that if such a contingency arises, the court will not consider the matter in the proper perspective. No grounds are made out to interfere with the Judgment and decree of the court below. RSA Nos.831 & 833/09 9 These appeals are without merits and they are accordingly dismissed. There will be no order as to costs. SD/- P.BHAVADASAN, JUDGE sta TRUE COPY PA TO JUDGE RSA Nos.831 & 833/09 10