IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 RSA.No. 1068 of 2008() ---------------------- AS.60/2000 of PRINCIPAL SUB COURT,ATTINGAL OS.177/1996 of MUNSIFF COURT,ATTINGAL .................... (S): APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- JOYILAL, W/O.SASIDHARAN, AGED 53 YEARS, VALIYAKATTACKAL VEEDU, KARETTE, VAMANAPURAM, PULIMATH, THIRUVANANTHAPURAM. REPRESENTED BY THE POWER OF ATTORNEY HOLDER, SASIDHARAN, S/O.BHANU, RESIDING AT -DO- BY ADV. SRI.V.S.BABU GIREESAN RESPONDENT(S): RESPONDENT/DEFENDANT ----------------------------------- KRISHNANKUTTY, S/O.RAMALINGAM, BANDEEP TOWER, VAMANAPURAM, PULIMATH VILLAGE, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.1068 of 2008 = = = = = = = = = = = = = = Dated this the 5 th day of November, 2008 JUDGMENT The plaintiff in O.S.No.177 of 1996 on the file of the Munsiff's Court, Attingal is the appellant in this Second Appeal. The said suit was one for prohibitory and mandatory injunction against the construction carried on by the defendant in the plaint B Schedule Property shown as admeasuring 1.766 cents allegedly in violation of the Building Rules as well as the Kerala Panchayat Raj Act, 1994. 2. The case of the plaintiff can be summarised as follows:- The plaintiff is the owner in possession of the plaint A Schedule Property admeasuring 15 cents comprised in Survey No.1782/1 of Pulimath village in Cherayinkeezhu Taluk. The plaint B Schedule Property belonging to the dependant lies on the western boundary of the plaint A Schedule Property. The total extent of plaint B Schedule Property is 1.766 cents comprising in Survey No.1782/3. To the further west of the plaint B Schedule Property is the M.C.road. The defendant has R.S.ANo.1068 of 2008 2 started the construction of a terraced building in the plaint B Schedule Property. For the construction of pillars, the defendant had removed earth after encroaching into the plaint A Schedule Property for about 1.85 meters. The construction of the pillars on the western side is against the provisions of the Kerala Panchayat Raj Act in not leaving sufficient open space from the M.C.Road. The construction is carried out in violation of the provisions of the Kerala Panchayat Raj Act and the Building Rules. Hence the suit. 3. The suit was resisted by the defendant contending, inter alia, as follows:- The case of the plaintiff that the defendant is in possession of only 1.766 cents of land is not correct. This defendant had purchased 4 cents of land as evidenced by Ext.B1 registered sale deed dated 16.8.1977. Ever since then, this defendant is in possession and enjoyment of the said property. This defendant has already started the construction work after obtaining permission from the Panchayat authorities. The plaint allegation that the defendant has violated the Building Rules and the provisions of the Kerala Panchayat Raj Act is not correct. This defendant has left sufficient open space as required by the Rules. R.S.ANo.1068 of 2008 3 This defendant has not encroached into the plaint A Schedule Property. The plaintiff did not raise any objection when this defendant removed the earth from the Plaint B Schedule Property. The property of the plaintiff was formerly a paddy field which was raised by him years back. There was a thodu between the plaint A and B Schedule properties. The plaintiff had filled up the said thodu and had levelled the remaining paddy field. The boundary between the plaint A and B Schedule was the said thodu which is not in existence now. This defendant had obtained permission from Pulimath Panchayat. The said panchayat is a necessary party to the suit which has to be dismissed. 4. On the side of the plaintiff Exts.A1 to A4 were marked. Four witnesses were examined as PWs.1to 4 of whom PW1 is the husband of the plaintiff. On the side of the defendant Exts.B1 to B4 were marked and DWs. 1 and 2 were examined of whom DW1 is the defendant himself. The learned Munsiff, after trial, as per judgment and decree dated 18.8.2000, dismissed the suit holding, inter alia, that since the Building Rules were not applicable to the Pulimath Panchayat at the time of the starting of the construction, the allegation of the plaintiff that the R.S.ANo.1068 of 2008 4 defendant had violated the Building Rules is not sustainable, that going by the Commissioner's report and plan prepared with the assistance of the surveyor and the evidence of the Advocate Commissioner as well as that of the Surveyor it was not safe to accept the report of the Commissioner to the effect that the distance between the western pillars of the construction and the retaining wall at the eastern extremity of M.C.Road was 3.1 meters. However, the trial court found that notwithstanding the apparent contradiction between the evidence of the surveyor and the report of the Commissioner, except filing her objection to the report and plan, the plaintiff did not apply for remitting the same to the Commissioner, nor did she apply for an additional report and plan. In that view of the matter the trial court dismissed the suit holding that the plaintiff had failed to prove that the defendant had violated the Building Rules or the provisions in the Kerala Panchayat Raj Act. On appeal preferred by the plaintiff as A.S.No.60/2000, the lower appellate court also concurred with the conclusions reached by the trial court and dismissed the appeal as per the judgment and decree dated 27.10.2007. Hence this Second Appeal. 5. The learned counsel for the appellant/plaintiff reiterated R.S.ANo.1068 of 2008 5 the contentions of the plaintiff. He made the following further submissions before me:- Both the courts have come to the conclusion that Exts.C2 report and C2(a) plan cannot be fully relied on in the light of the apparent contradictions between the distance shown therein and the testimony of the surveyor examined as PW3. If so, it was not open to the courts to blame the plaintiff for not filing an application for remitting the report and plan or for applying for an additional report since there is no such requirement under Rules 10,12 and 14 of Order XXVI C.P.C. On the concurrent finding that the report and plan of the Commissioner could not be fully relied on, the court itself should have suo motu set aside the report and plan and remitted the same to the Commissioner. The courts below went wrong in casting the burden on the plaintiff. 6. I am afraid that I cannot agree with the above submissions. Firstly, the plaintiff came to the court alleging that the Building Rules were violated by not leaving sufficient space at the boundary between the plaint A Schedule property of the plaintiff and the plaint B Schedule property situated to the west of the plaint A schedule property. Both the courts below have R.S.ANo.1068 of 2008 6 held that since the Building Rules were not applicable to the said building where the construction is carried out, the plaintiff could not complain of not giving sufficient space at the boundary. Moreover, the Commissioner noted that a space of 1metre has been left between the eastern pillar of the construction and the eastern extremity of the Plaint B Schedule Property. The defendant has a specific case that the boundary between plaint A and B schedule properties was a thodu and the plaint A schedule property which was a paddy field was filled up by the plaintiff who had also levelled the thodu. The said case of the defendant appears to be true. The Commissioner has specifically noted that there was no temporary boundary between A and B schedule properties. The distance of one meter has been seen left from the eastern pillar to the extremity of the plaint B Schedule Property. Eventhough the Building Rules are not applicable, sufficient space has been left on the eastern side of the plaint schedule property and the plaintiff cannot be heard to complain that no space was left. 7. Now coming to the western side of the construction, it is seen that there is a triangular plot in between the plaint B Schedule property and the M.C.Road. So, the plaint B Schedule R.S.ANo.1068 of 2008 7 property is not technically abutting the M.C.Road which is on the west. Eventhough Exts.C2(a) plan C2 report were prepared with the assistance of the Taluk surveyor, the Taluk Surveyor when examined as PW3 would take exception to which was noted by the Advocate Commissioner. Having subscribed his signature to Ext.C2(a) plan, it was not open to PW3 to depose at variance from what has been shown in Ext.C2(a) plan. Even if implicit faith could be attributed to the testimony of PW3 as has been done still sufficient space has been left on the western side of the construction on the plaint B Schedule Property. C2(a) plan does not show any encroachment into the road puramboke as well. Whether the vacant space leaves 3.1 meters as noted by the Commissioner or a lesser space as asserted by PW3, Taluk Surveyor, the fact remains that sufficient space has been left on the western side of the construction in between the construction and the triangular plot abutting of the M.C.Road. It is essentially for the panchayat which has permitted the defendant to put up the construction to take exception to the violation, if any, of the provisions of the Kerala Panchayat Raj Act. It is pertinent in this connection to note that the defendant had specifically raised a contention in the written statement that the R.S.ANo.1068 of 2008 8 Panchayat is a necessary party to the suit. In spite of raising such a contention, the plaintiff did not think it necessary to implead the Panchayat as an additional defendant. The plaintiff cannot now come forward with a plea that there is infraction of the provisions of the Kerala Panchayat Raj Act. I see no good ground to interfere with the Judgments concurrently passed by the courts below. No questions of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 5 th day of November, 2008. V. RAMKUMAR, JUDGE sj