Regular second appeals challenging a decree for injunction affirmed by the District Court. The High Court held findings of the lower appellate court regarding trespass were based on evidence and overturned the trial court dismissal. The anticipatory threat to set aside the decree was rejected.
Appeals dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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:
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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:
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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.
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.
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.
RSA Nos.831 & 833/09
4
Commissioner's reports and plan were also marked.
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.
5
RSA Nos.831 & 833/09
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.
RSA Nos.831 & 833/09 7
produced the same, is without force.
8
RSA Nos.831 & 833/09
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.
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
2 issues framed by the court
Whether the High Court should interfere with the appellate court's finding that defendants trespassed into the plaintiffs' property.
Whether a threat of unauthorized encroachment justifies setting aside a decree for injunction merely by apprehension of future mischief.
Johnson
Varghese
Bharathan
Thomas
Sunil
Devassy
P. BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
