IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 RSA.No. 699 of 2011() --------------------- AS.198/2008 of I ADDL. DISTRICT COURT, PALAKKAD OS.581/2003 of MUNSIFF COURT, CHITTUR .................... APPELLANTS -------------------- 1. RAJANI.A.K, D/O. LATE N. RAJAN, ARIPPARA HOUSE, THIRUVAZHIYAD, AYIRUR, CHITTUR TALUK. 2. RAJITH RAJAN, S/O. -DO- 3. JEEJA, D/O. -DO- BY ADV. SRI.P.R.VENKETESH SRI.R.AZAD BABU SRI.P.R.RAJA RESPONDENT(S): --------------- 1. SARAMMA JOHN, W/O. M.M. THOMAS M. MATHUNNI, RESIDING AT PRAKASH BHAVAN, NENMARA VILLAGE, CHITTUR TALUK, PALAKKAD - 678 508. 2. THE DISTRICT COLLECTOR, PALAKKAD - 678 001. 3. THE TAHSILDAR, CHITTUR, PALAKKAD DISTRICT - 678 101. 4. THE VILLAGE OFFICER, THIRUVAZHIYAD, PALAKKAD DISTRICT - 678 510. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.699 of 2011 ............................................ DATED THIS THE 16th DAY OF AUGUST, 2011 JUDGMENT Fourth defendant in O.S.581 of 2003 on the file of Munsiff Court, Chittur who subsequently got herself impleaded in the suit instituted by the first respondent for permanent prohibitory injunction is the appellant. Respondents 2 to 3 are defendants 1 to 3. First respondent sought a decree for permanent prohibitory injunction restraining respondents 2 to 4 from trespassing into plaint A and B schedule properties or causing any obstruction contending that plaint A schedule property originally belonged to Appu and Madhavan who obtained right from the Government in 1964 under a patta and they transferred the property to Mariyam by sale deed 435/80 and first respondent purchased it from Mariyam by sale deed 14/94 and since then they have been in exclusive possession of plaint A schedule property and plaint B schedule property originally belonged to Murukandi who obtained it from Government under Patta 52/1964 and on the death of Murukandi, first respondent purchased the property by sale deed RSA 699/2011 2 2024/94 from the legal heirs of Murukandi and since then she has been in possession of plaint B schedule property also and the Government has no right over any portion of the property and the public way lies to the south of the plaint A and B schedule properties having a width of 6 -7 metres and on the boundary of the pathway, there is an old and clear fencing and respondents are not entitled to trespass upon the plaint schedule properties. Respondents 1 to 3 in their written statement contended that 4th respondent has made a proposal to construct a new pathway through the northern side of the existing pathway and for this purpose, a local inspection was carried out and at that time it was found that first respondent was claiming a right over the Government land and when the claim was found to be false, first respondent filed WP(C) 19684 of 2003 and later the writ petition was withdrawn with liberty to file a suit and the suit was filed and first respondent has no right, title or possession to any portion of the Government land. Appellant after getting herself impleaded in the suit filed a written statement contending that she had earlier filed a complaint before the RDO alleging that one Preman had trespassed upon the puramboke pathway which lies to the north RSA 699/2011 3 of her properties and the RDO initiated proceedings to remove the encroachment and as per order dated 7.6.2003, 4th respondent RDO inspected the property comprised in Survey No.1170/2 and found that apart from Preman, first respondent and Ramachandran encroached upon the puramboke land and first respondent has actually encroached upon 13 cents of puramboke land and proceedings were initiated against the encroachers and then the suit was filed and first respondent has no right over any portion of the property belonging to the appellant and the puramboke way lies to the north of the private way of the appellant. Therefore, she is not entitled to the decree sought for. 2. Learned Munsiff, on the evidence found that the plaint A and B schedule properties were properly identified by the Commissioner and the puramboke way is in Survey No.1170/2 and the first respondent has title and possession to plaint A and B schedule properties and the puramboke land lies further to the south of plaint A and B schedule properties and therefore granted a decree in favour of first respondent. Appellant challenged the judgment before District Court, Palakkad in RSA 699/2011 4 A.S.198 of 2008. Learned Additional District Judge, on re- appreciation of the evidence found that the puramboke way is in R.S.1170/2 and it is further towards the south of plaint A and B schedule properties and the properties of the appellant is further to the south of that pathway and as identified by the Commissioner, first respondent has encroached upon 1 ¾ cents as shown in Ext.C2 plan and respondents 2 to 4 are entitled to claim that encroached portion as provided under the Kerala Land Conservancy Act. Granting liberty to them to proceed under the Kerala Land Conservancy Act, a decree for injunction granted by the trial court was confirmed. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that the existing way which is identified by the Commissioner is not actually the way, which lies in the puramboke land and instead it was the private way passing through the property of the appellant and the Commissioner has not properly identified the property and therefore a decree for injunction should not have been granted. Learned counsel would argue that the property of the first respondent is in Survey RSA 699/2011 5 No.1065/1 and the pathway now identified is not in survey No.1170/2 but in 1065/1 and therefore the decree is not sustainable. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The suit is only one for injunction. First respondent is claiming right and possession to plaint A and B schedule properties. The case of respondents 2 to 4 is that first respondent has encroached upon the puramboke land. The case of appellant is that the pathway which is passing through the puramboke land is in survey No.1170/2 and to its south is the property of appellant in survey No.1065/1 and the pathway as identified by the Commissioner is actually in R.S.1065/1 and not in 1170/2 and therefore the first respondent is not entitled to the decree as he has encroached upon a portion of the puramboke land. Learned Munsiff and learned District Judge on appreciation of the evidence entered a factual finding that the Commissioner identified plaint A and B schedule properties correctly. Courts below found that as marked in Ext.C2(a) plan, plaint A and B schedule properties lies to the north of puramboke land and though first respondent has RSA 699/2011 6 encroached upon an extent of 1 ¾ cents of puramboke land, respondents 2 to 4 can claim that only by due process of law and reserved the right to the Government to evict the first respondent as provided under Kerala Land Conservancy Act. Though the learned counsel argued that the identification made by the Commissioner is not correct, the question was properly considered by both trial court and first appellate court. Though it was contended that the Commissioner had not identified the property with reference to the original Field Measurement Book (FMB), courts below found that the properties were identified with reference to the copy of FMB and the identification was proper. I find no reason to interfere with the factual finding. Hence when the evidence establishes that plaint A and B schedule properties lie to the north of the puramboke land and the extent of the property which was trespassed upon by the first respondent is 1 ¾ cents, the argument of the learned counsel that the pathway now found by the Commissioner is not in 1070/2 but in 1065/1 cannot be accepted. In the light of the factual finding, I find no substantial question of law involved in the appeal. It is made clear that being a suit for injunction and RSA 699/2011 7 the finding is only that plaint A and B schedule properties lies to the north of puramboke land and the property of appellants is in Survey No.1170/2, I find no reason for any grievance of appellant as the appellant is claiming right only in survey No.1065/1. Appeal is dismissed. Learned counsel also submitted that if there is any encroachment in Survey No.1065/1, the decree may not be a bar to the appellant to claim recovery of possession. There is no finding in the suit with regard to the right or title to survey No.1064/1 and therefore I find no basis for the apprehension expressed. M.SASIDHARAN NAMBIAR, JUDGE lgk