Dismissed

Local Committee Secretary v. Ali Mohammed

Kerala HC27 Jun 2012RSA/813/2012

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal against a decree for mandatory injunction to remove a flag post and platform found to be erected on the respondent's property. The court held that no substantial question of law arose, noting a plea of irrevocable licence under the Easements Act was never raised in the trial.

What did the court decide?

Second appeal and interlocutory applications dismissed with no relief granted to the appellant.

Local Committee Secretary Vs Ali Mohammed — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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WEDNESDAY, THE 27TH DAY OF JUNE 2012/6TH ASHADHA 1934

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RSA.NO. 813 OF 2012 ()

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AS.188/2006 OF ADDITIONAL SUB COURT, IRINJALAKUDA OS.1091/2001 OF MUNSIFF'S COURT, KODUNGALLUR

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APPELLANT(S)/APPELLANT/DEFENDANT 2:

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LOCAL COMMITTEE SECRETARY, COMMUNIST PARTY OF INDIA (MARXIST) NORTH SIDE OF ERIYAD HIGH SCHOOL ERIYAD, KODUNGALLUR, NOW JOHN AGED 47 YEARS, SOCIAL WORK, S/O.THOMAS, CHIRAYATH HOUSE ERIYAD VILLAGE, DESOM, KODUNGALLUR TALUK.

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BY ADVS.SRI.K.J.MOHAMMED ANZAR SRI.P.M.ABDUL JALEEL (KODUNGALLUR)

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RESPONDENT(S)/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1:

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1. ALI MOHAMMED, AGED 58, S/O.MANDAYIPURATHVEETTIL KUNJIKADER HAJI ERIYAD BLOCK, ERIYAD VILLAGE KODUNGALLUR TALUK-680 666.

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2. MANDALAM PRESIDENT INDIAN NATIONAL CONGRESS NORTH SIDE OF ERIYAD HIGH SCHOOL, ERIYAD KOUNGALLUR

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NOW K.K.ABU, AGED 55 YEARS S/O.KANJIRAPARAMBIL KADIR, ERIYAD VILLAGE, DESOM KODUNGALLUR TALUK-680 666.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No.813 of 2012

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====================================

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Dated this the 27^th day of June, 2012

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J U D G M E N T

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The second defendant in O.S. No.1091 of 2001 of the court of learned Munsiff, Kodungllur is aggrieved by the decree for prohibitory injunction against him as confirmed by the learned Additional Sub Judge, Irinjalakuda in A.S. No.188 of 2006.

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First respondent-plaintiff sued the appellant and second respondent who are political party functionaries for a decree for mandatory injunction directing them to remove the flag post and platform around it they erected/constructed allegedly in the southern corner of plaint A schedule property. First respondent claimed title and possession of plaint A schedule property as per document Nos.167/1984, 399/1984 and 1328/1984 (Exts.A1 to A3 marked in the trial court). It is the case of the first respondent that he demanded the appellant and second respondent to remove the flag post and the platform erected/constructed around it. Thereon appellant and second respondent agreed to remove the same if on measurement of the property it was found to be within plaint A schedule. Accordingly measurement was done and it was revealed that the

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R.S.A. No.813 of 2012

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-: 2 :-

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flag post and platform around it are erected/constructed in plaint A schedule but they refused to remove it. Hence the suit.

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Appellant contended that the flag post was erected sometime in the year 1970 in Government land and a platform was constructed around it in commemoration of memory of a deceased party worker who was the brother of the prior owner of the property. It was with the consent of the prior owner that the flag post and the platform around it were erected/constructed. Appellant further contended that first respondent has no right, title, interest or possession of the place where the appellant has erected/constructed the flag post and platform around it and hence it is not liable to be removed. It is contended that first respondent purchased the property only recently. In the circumstances it was contended that first respondent is not entitled to the reliefs prayed for.

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Trial court on evidence found that appellant and second respondent have erected/constructed flag post and platform around it in a portion of the suit property. Other contentions raised by the appellant and second respondent were negatived and a decree for mandatory injunction was granted. That judgment and decree were confirmed by the first appellate court. Hence this Second Appeal.

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R.S.A. No.813 of 2012

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-: 3 :-

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The learned counsel for appellant contended that Exts.C2 and C2(a) would show that the Taluk Surveyor was not able to identify the suit property based on Exts.A1 to A3 and in the circumstance finding of trial and first appellate courts that the flag post and the platform around it are erected/constructed inside plaint A schedule property is not correct. A further contention is that it was with the permission of the prior owner that appellant had erected/constructed flag post and platform around it, that construction amounts to a work of permanent character and hence the licence is irrevocable under Section 60(b) of the Indian Easements Act (for short, “the Act”).

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I am given a copy of Ext.C2, report submitted by the Advocate Commissioner and Ext.C2(a), plan prepared by the Taluk Surveyor. In Ext.C2, the Advocate Commissioner (examined as P.W.2) stated that properties were measured with reference to documents of title and revenue records. In paragraph 1 of the report it is stated that the property comprised in Sy. No.1380/4 (13 ½ cents) was measured with reference to the village records. In paragraph 2, the Advocate Commissioner states that when the property was measured with reference to document No.1328/84 (referred to in the report as 1338/84), there was found to be some difference with reference to the measurement

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R.S.A. No.813 of 2012

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-: 4 :-

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stated in the documents and hence the Taluk Surveyor told the Advocate Commissioner that the property cannot be identified as per that document. But the property was measured with reference to the the village records and lie of the property (13 ½ cents referred to in plaint A schedule). On such measurement it was noticed that the flag post and platform around it are situated in the 13½ cents belonging to the first respondent.

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Courts below based on Exts.A1 to A3 and Exts.C2 and C2(a) found that the flag post and the platform around it are erected/constructed in a portion of the suit property. I must also notice that it is not the case of the appellant or second respondent (who has not challenged judgment and decree of the trial court) that the property where the flag post and platform around it are erected/constructed belonged to them. Their only case is that it is Government land, which contention is not established. In the above circumstances finding of the trial and first appellate courts that the flag post and the platform around it are erected/constructed in the property of first respondent requires no interference.

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Then the question is whether there is any licence for erection of the flag post and platform around it coupled with grant of interest in the property or on account of any permanent

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R.S.A. No.813 of 2012

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-: 5 :-

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construction made by the first appellant pursuant to the alleged grant, the licence has become irrevocable? The learned counsel for appellant has drawn my attention to Sec.60 of the Act and the evidence adduced through D.Ws.1 to 3.

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The trial and first appellate courts were not impressed by the evidence adduced let in by the appellant as regards the permission allegedly obtained from the prior owner of the property. Under Sec.60 of the Act a licence is revocable by the grantor unless: (a) it is coupled with a transfer of the property and such transfer is in force or (b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution.

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To sustain a contention under Sec.60 of the Act there must be a specific plea that the licence has become irrevocable (as provided under Sec.60 of the Act). I am given a copy of the written statement filed by the appellant where I do not find any whisper of a contention coming under Sec.60 of the Act. A plea of irrevocability not raised in the trial court, nor adjudicated upon cannot be raised for the fist time in appeal (See Chevalier I. I. Iyyappan and another. v. The Dharmodayam Co . - AIR 1966 SC 1017). In the absence of plea, no amount of evidence if any as to irrevocability of the licence (if any) can be looked into.

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R.S.A. No.813 of 2012

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-: 6 :-

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Learned counsel for the appellant has brought to my notice evidence of P.W.2 that the construction of platform is of a permanent character. The question whether a construction is of a permanent character depends on the nature of the construction. I stated that there is no contention in the written statement that the construction made is of a permanent character, and that it is irrevocable. Hence at this stage I cannot permit the appellant to urge a contention under Sec.60 of the Act.

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Having heard the learned counsel and gone through the judgments under challenge I do not find any substantial question of law involved in this appeal requiring decision by this Court.

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Second Appeal is dismissed.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Local Committee Secretary v. Ali Mohammed

Case brief

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Local Committee Secretary v. Ali Mohammed

Case brief

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