IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 RSA.No.16 of 2008 (B) -------------------------- AGAINST THE ORDER IN AS.117/2003 of I ADDL.SUB COURT,TRIVANDRUM OS.951/1999 of II ADDL.M.C.,TRIVANDRUM .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 3 --------------------------------------------------------- 1. THE KERALA STATE HOUSING BOARD, REPRESENTED BY ITS SECRETARY, K.S.H.B.BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 2. THE CHIEF REVENUE OFFICER, K.S.H.B. BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. THE EXECUTIVE ENGINEER, SANTHI NAGAR, THIRUVANANTHAPURAM. BY ADV. POOVAPPALLY M.RAMACHANDRAN NAIR,SC.KSHB RESPONDENTS/RESPONDENTS/PLAINTIFF & FOURTH DEFENDANT: ------------------------------------------------------------------------------ 1. NIRMALA SHANMUGHAN, W/O.DR.V.SHANMUGHAN, PANAVILAGHAM HOUSE, T.C.4/1575, DEVASWOM BOARD, KOWDIYAR VILLAGE, THIRUVANANTHAPURAM. 2. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.16 of 2008 ------------------------------------------------ Dated this the 20th day of June, 2008 JUDGMENT Defendants 1 to 3 in O.S.951/99 on the file of the Second Additional Munsiff's Court, Thiruvananthapuram are the appellants in this appeal and the respondents are the plaintiff and the fourth defendant/the K.S.E.B. First respondent/plaintiff instituted the above suit for demarcation and for putting up of boundary and for a mandatory injunction inter alia on the following allegations:- 2. The plaintiff was having 82 cents of property obtained by her under Ext.A1 partition deed of 1973 and that is scheduled as plaint 'A' schedule property. Out of the said 82 cents, she sold 61 cents to Vidhyadhiraja Vidhya Samajam retaining with her the remaining extent of 21 cents. The entire 82 cents was lying as a single plot. R. S. A. No.16 of 2008 -2- The first defendant notified for acquisition the entire 82 cents, but later the property covered by sale deed in favour of M/s Vidhyadhiraja Vidhya Samajam alone was taken possession of by the first defendant though 21 cents of property of plaintiff was also shown as property proposed for acquisition. The validity of the notification lapsed in course of time. By resolution dt.20/11/85 of the first defendant/Board the ten cents of property from out of 21 cents belonging to plaintiff was exempted from acquisition. Thereby the first defendant made its intention clear that only 72 cents was to be acquired. Sixty One (61) cents which was sold to Vidhyadhiraja Vidhya Samajam is plaint 'B' schedule property; the ten cents exempted from acquisition is Plaint 'C' schedule property and the balance 11 cents of plaintiff which was not acquired is plaint 'D' schedule R. S. A. No.16 of 2008 -3- property. Plaint 'C' and 'D' schedule properties are lying contiguously. The first defendant wrongly treated the 'D' schedule as part of their property and arranged transformer to be installed within the 'D' schedule property. The plaintiff genuinely doubted that there is trespass into her property. The K.S.E.B is made the fourth defendant only as a proper party in the suit for effective adjudication of the dispute in the suit. The plaintiff repeatedly requested the first defendant to measure out and demarcate the 'D' schedule property with the assistance of the Thaluk Surveyor, but there was non co-operation from the side of the first defendant. On 20/11/95, 28/01/96 and 18/11/97 the first defendant was informed of the measuring out of the 'D' schedule property and requested to co-operate, but due to their non co-operation the 'D' schedule property R. S. A. No.16 of 2008 -4- could not be measured and demarcated. Therefore, the plaintiff was not in a position to enjoy the 'D' schedule property. A lawyer notice was issued to defendants 1 to 3 on 17/02/99 requiring them to inform their willingness to put up boundaries separating the 'D' schedule property. The first defendant issued a reply that reports are called for from the Land Acquisition Officer and they are proposing to take necessary action. But despite lapse of three months the first defendant did not take any action. There is sufficient compliance with Section 131 of the Kerala State Housing Board Act. Hence, the suit. 3. The prayers in the plaint are for a decree for demarcation and putting up of boundary separating plaint 'D' schedule property from the 'B' schedule property of the first defendant by constructing granite R. S. A. No.16 of 2008 -5- compound wall at the expense of both sides and for a mandatory injunction directing the defendants to shift and relocate the electric transformer from plaint 'B' schedule property. 4. The appellants filed written statement resisting the suit contending that plaint 'A' schedule property was originally exempted from acquisition proceedings but subsequently that also was proposed to be acquired; that later, that proposal was dropped and only the property sold by the plaintiff to M/s Vidhyadhiraja Vidhya Samajam was acquired; that a total area of 43.83 Ares was acquired from one P.N.Krishna Pillai, the then Secretary of Vidhyadhiraja Vidhya Samajam that the properties of other land holders such as Gouriappan, Sakthi Mohan and Kasthuri were also acquired; that in the year 1995 the Board decided to exempt ten cents of land from acquisition; that there is no demarcation of R. S. A. No.16 of 2008 -6- property between plaint 'C' and 'D' schedule properties; that the first defendant never treated the 'D' schedule property as part of their property; that the plaintiff has never objected or raised any kind of objection, however, when the fourth defendant installed transformer in the property and she had not filed any complaint also; that the defendant never took any non co-operative attitude and they have no malafide intention to deprive 'D' schedule property to the plaintiff; that if the plaintiff has raised any objection at the time of installation of transformer by the fourth defendant, the transformer could not have been installed in the said property; that plaint 'D' schedule property was never acquired or taken possession of by the Board as the property in question is purely a private land; that the Board's office is not in a position to survey and demarcate the R. S. A. No.16 of 2008 -7- boundary and that the plaintiff has no cause of action as the plaint 'C' and 'D' schedule properties were not acquired and taken possession of by the Board. 5. The fourth defendant/K.S.E.B filed a separate written statement contending that the measurement and demarcation of the scheduled property had been done by the Housing Board; that the transformer was erected as per the request of the housing board on work deposit basis for lighting the housing board buildings in Pandit's Colony; that they have not received any objection or complaint against the erection of the transformer; that however, the plaintiff has admitted that the fourth defendant is impleaded only as a proper party and the fourth defendant has nothing to do with the defence in the case. 6. On the above pleadings, necessary issues were raised by the trial court and R. S. A. No.16 of 2008 -8- after conducting a trial of the suit and considering the evidence adduced at trial which consisted of oral evidence of PW1 and documentary evidence of Exts.A1 to A8(a) and C1 and C1(a) decreed the suit in part allowing the plaintiff to put the boundary of 'D' schedule property along the demarcating line as shown in Ext.C1(a) plan namely the ABCDEF line demarcating it from the plaint 'B' schedule property. 7. Aggrieved by the decree so passed allowing relief only in part, the plaintiff preferred A.S.101/01 and defendants 1 to 3 who are appellants herein filed A.S.117/03 to the extent relief was granted to plaintiff. The appellate court vide common judgment dt.06/07/07 dismissed both the appeals confirming the judgment and decree passed by the trial court. It is aggrieved by the judgment dismissing A.S.117/03 that R.S.A. R. S. A. No.16 of 2008 -9- 16/08 is filed by defendants 1 to 3 and it is aggrieved by dismissal of A.S.101/01 that the plaintiff has filed R.S.A.310/08. 8. It is vehemently contended before me by the learned counsel for the appellants in R.S.A.16/08 that the first appellate court should have allowed the appellants to file objections to the Commissioner's Report/Ext.C1 and the plan Ext.C1(a) filed before the trial court and that Exts.C2(a) and C2(b) plans were got down by issuing a Commission from the appellate court after measuring out the properties with the help of a Surveyor and defendants 1 to 3 have filed very serious objections to the said plans and even sought for having the said plans set aside; and that on the basis thereof a decree should not have been passed in favour of plaintiff. 9. The learned counsel also submits that proper evidence has not been adduced in the R. S. A. No.16 of 2008 -10- case to substantiate the contentions of the defendants and that therefore, an opportunity be granted to adduce evidence by remanding the case to the trial court for de novo trial and disposal. 10. I have heard the submissions of the counsel for the first respondent/plaintiff as well who has filed R.S.A.310/08 assailing the correctness of the dismissal of A.S.101/01 by a common judgment which also comes up for admission hearing on this day. 11. It is seen from the judgment of the trial court that the defendants have not adduced any oral or documentary evidence in the case. They had not even filed objections to the Commissioner's Report and plan Exts.C1 and C1(a). In fact, there was no much scope also to adduce evidence, in as much as it is admitted in the written statement filed by defendants 1 to 3 that plaint 'C' and 'D' R. S. A. No.16 of 2008 -11- schedule properties have not been acquired by the Housing Board or taken possession of by them and that the K.S.E.B/the fourth defendant would not have installed the transformer in 'D' schedule property had the plaintiffs raised any kind of objection at the time of its installation. 12. Vehement arguments are advanced by the counsel for the appellants assailing the concurrent judgment of the courts below despite the above admissions made in the written statement by defendants 1 to 3 admitting the case of the plaintiff though no amendment of written statement even is sought for till this time. He submits that there was some fraud committed by the officials of the first defendant Housing Board. I cannot enter a finding or make any observation in that matter basing on the submission made by the counsel for the Housing Board without any R. S. A. No.16 of 2008 -12- basis to substantiate the above submission. Even before this Court the appellants have not taken such a contention except the submission made by the counsel at the time of advancing arguments before me on this day. As rightly observed by the first appellate court, there is no substantial difference seen between Exts.C1(a) plan and plans obtained at the appellate stage namely Exts.C2(a) and C2(b) plans. In Ext.C1(a) plan to which there was absolutely no objection from the side of the appellants the ABCDEF plot is shown as the 11 cents plot described as 'D' schedule to the plaint and that transformer is installed at the north- eastern portion within the said property. It is here that the contentions of appellants/defendants 1 to 3 in their written statement has to be considered. The acquired land of the Housing Board is situated on the North of the 'C' and 'D' schedule plots R. S. A. No.16 of 2008 -13- belonging to the plaintiff and the transformer is installed in the north-eastern corner of 'D' schedule plot which is outside the property of the Housing Board and according to defendants 1 to 3 the K.S.E.B installed the said transformer in that manner because it was not objected to by the plaintiff. In other words, it is a clear case where there is admission from the side of the appellants/ defendants that 'C' and 'D' schedule properties are properties belonging to the plaintiff that 'C' schedule is property specifically exempted from acquisition on the request of the plaintiff and that 'D' schedule is property of the plaintiff which the Housing Board did not want to acquire. I fail to understand the merit in filing this R.S.A in view of the admissions so made. The request advanced before me by the counsel for the appellants to have the Commissioner's Report R. S. A. No.16 of 2008 -14- and plan set aside and to remand the case to the trial court ordering a de novo trial if allowed, would afford the appellants an opportunity to resist the suit raising contentions which they did not have till this point of time. The appellants also have no case that they had advanced a request before the first appellate court to have a remand of the case, but on the other hand, what they wanted was issuance of a fresh commission from the first appellate court and though that was allowed nothing turned out which was favourable to the appellants as Exts.C2, C2(a) and C2(b) plans were also in conformity with Ext.C1(a) plan in the matter of measuring out and locating the 'C' and 'D' schedule properties and fixing the boundaries of plaint 'C' and 'D' schedule properties in the possession of the plaintiff. Thus, there is absolutely no merit in this appeal filed by R. S. A. No.16 of 2008 -15- defendants 1 to 3 and there is no question of law and much less any substantial question of law that arise for consideration in this R.S.A by this Court. 13. In the result, refusing admission, I dismiss this R.S.A in limine. K.P.BALACHANDRAN, JUDGE kns/-