Dismissed

M.U. Sunny v. M. Mani

Kerala HC23 Jul 2012RSA/888/2012

Case brief

AI extract

What is this about?

This judgment dismisses a second appeal challenging a decree for a prohibitory injunction and damages regarding trespass onto suit property. The High Court upheld the lower courts' findings that respondents proved title and recent unauthorized road construction causing loss, rejecting the appellant's reliance on unexamined Magistrate reports.

What did the court decide?

The Second Appeal is dismissed. All pending interlocutory applications will stand dismissed.

M.U. Sunny Vs M. Mani — 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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MONDAY, THE 23RD DAY OF JULY 2012/1ST SRAVANA 1934

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RSA.No. 888 of 2012 ( )

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AS.83/2006 of DISTRICT COURT,THODUPUZHA OS.175/2003 of MUNSIFF COURT, DEVIKULAM

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APPELLANT(S)/APPELLANTS/DEFENDANTS :

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M.U. SUNNY

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S/O. UTHUPPU, POOZHIKUNNEL HOUSE, PERADIPALLAM KARA KEEZHANTHOOR VILLAGE, DEVIKULAM.

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BENNY

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S/O. SUNNY, POOZHIKUNNEL HOUSE, PERADIPALLAM KARA KEEZHANTHOOR VILLAGE, DEVIKULAM.

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K.N.RAJU

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S/O. NARAYANASWAMI, PERADIPALLAM KARA KEEZHANTHOOR VILLAGE, DEVIKULAM.

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HAMSA

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S/O. MUHAMMED, HOUSE NO.MPV/722, PALLANADU KARA MARAYOOR VILLAGE.

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BY ADV. SRI.JOHN K.GEORGE

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RESPONDENT(S)/RESPONDENTS/PLAINTIFFS :

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M. MANI

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S/O. MANI KURUVILA, AVARAKATTU HOUSE PERADIPALLAM KARA, KEEZHANTHOOR VILLAGE, DEVIKULAM-685613.

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SIMON MANI

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S/O. MANI, AVARAKATTU HOUSE,PERADIPALLAM KARA KEEZHANTHOOR VILLAGE, DEVIKULAM-685613.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23-07-2012, 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.888 of 2012

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Dated this the 23^rd day of July, 2012.

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JUDGMENT

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Defendants in O.S.No.175 of 2003 of the court of learned

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Munsiff, Devikulam challenge the decree for prohibitory injunction and recovery of damages to the tune of `18,000/- as confirmed by the learned District Judge, Thodupuzha in A.S.No.83 of 2006.

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Respondents claimed that the plaint A schedule belongs to them as per Ext.A1, patta No.8167 of 1977, the plaint B schedule building belongs to the 2^nd respondent as per Ext.A2, patta No.13044 of 1993 and the plaint C schedule belongs to the sister of the respondents as per Ext.A3, patta No.10056 of 1983, all issued by the Special Tahsildar (LA), Devikulam. Respondents claimed that they are in possession of plaint A and B schedules and are managing the plaint C schedule on behalf of their sister. They produced Exts.A4 to A6 to show payment of revenue for the said property and Ext.A7, proceedings of the District Collector, Idukki concerning the plaint A to C schedules. It is the case of the respondents that there is a road on the northern side of the suit property upto the eastern boundary of the plaint C schedule. That road has a width of 20 feet towards the north-western corner of the plaint A schedule. That road narrows down in width later. On the east of the plaint C schedule and about a kilometre away therefrom, the appellants have some property. They trespassed into the suit property and opened a new road destroying the crops and causing

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RSA No.888/2012

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damages to the tune of around `50,000/-. Hence the suit for prohibitory injunction and recovery of damages.

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Appellants contended that there is a road passing through the northern side of the plaint A to C schedules having an average width of 14 metres and at certain points, even extending upto 17.9 metres. Themselves and other local people are using the said road. Appellants and others preferred a complaint to the Sub Divisional Magistrate concerned requesting to initiate action. Accordingly the Sub Divisional Magistrate initiated action and the proceeding is pending.

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The Advocate Commissioner (PW2) inspected the property and submitted Ext.C1, report. Based on that report and the oral and other documentary evidence, the trial court accepted plea of the respondent and granted a decree for prohibitory injunction. Accepting the loss assessed by the Advocate Commissioner at `18,000/- a decree for recovery of that amount was also given. That, the first appellate court has confirmed. Hence the Second Appeal.

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The learned counsel contends that apart from Ext.B1, proceeding of the Sub Divisional Magistrate produced in the trial court, appellant had produced in appeal along with an application under Order XLI, Rule 27 of the Code of Civil Procedure (for short, “the Code”) a copy of the report submitted by the Village Officer based on which Ext.B1, proceeding was initiated. It is pointed out that it is without reference to the said report that the first appellate court has

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RSA No.888/2012

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disposed of the appeal confirming the judgment and decree of trial court. According to the learned counsel, the courts below have not properly considered Ext.B1, proceeding of the Sub Divisional Magistrate.

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I am given a copy of Ext.B1 and the report of the Village Officer (produced in appeal) pursuant to which the said proceeding was passed. It is pointed out by the learned Munsiff (and it is not disputed before me as well) that the complaint preferred by the appellants and others before the Sub Divisional Magistrate was after institution of the suit. No doubt, the mere pendency of the civil suit may not bar the Sub Divisional Magistrate from initiating action under Sec.133(1) of the Code of Criminal Procedure Code (for short, “the Cr.P.C.”). But various decisions on the point say that propriety demands the Sub Divisional Magistrate to keep his hands off until the civil court has disposed of the matter. The Sub Divisional Magistrate should not have proceeded with Ext.B1, proceeding and passed final orders and instead, should have waited for the decision of the civil court. At any rate, I am not inclined to prefer the decision of the Sub Divisional Magistrate which is based on a report of the Village Officer (without even examining him as witness) to the decision rendered by the civil court after recording evidence. Nor was the report of the Village Officer acceptable in evidence even if the first appellate court were to invoke the power under Order XLI, Rule 27 of the Code. That report could have been admitted into evidence only after examining the Village Officer who prepared it. No attempt was made to examine the Village Officer to prove the report now pressed into service. Therefore, even the report relied on cannot be looked into.

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RSA No.888/2012

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Title and possession of the respondents and their sister over the plaint A to C schedules is proved by Exts.A1 to A6 and is not very much in dispute. According to them, the road extends upto the eastern boundary of the plaint C schedule and has a width of 20 feet at the north-western corner of the plaint A schedule, but narrows down upto the eastern boundary of the plaint C schedule.

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If as contended by the learned counsel there was a road in existence even prior to the institution of the suit, the Advocate Commissioner would have reported that. Nor have the appellants adduced evidence to prove existence of any road as pleaded by them. Ext.B1 is not sufficient to prove the existence of the road claimed by the appellants.

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Ext.C1 and the evidence of PW2, the Advocate Commissioner show that there was recent trespass into the property of the respondents and their sister and that improvements in large extent were destroyed. The Advocate Commissioner has assessed the loss at `18,000/-.

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Apart from Ext.C1, there is evidence of PW3, who claimed to have taken part in the operation for either construction or widening of the road. He states that he also joined the operation under the impression given to him that it was with the consent of the respondents. He further says that on learning that the operation was without consent of the respondents, he withdrew from it.

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RSA No.888/2012

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Learned counsel submits that evidence of PW3 is totally untrustworthy. But, I must notice that the evidence was acceptable to the courts below.

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In the above circumstances, the courts below accepted the evidence of the respondents and granted a decree as aforesaid. That in my view is a finding of fact based on evidence and involves no substantial question of law.

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The 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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cks

M.U. Sunny v. M. Mani

Case brief

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M.U. Sunny v. M. Mani

Case brief

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