Partly allowed

P.N. Soman v. Symalakumari

Kerala HC17 Jan 2017SA/192/2002

Case brief

AI extract

What is this about?

This court allowed the second appeals in part. It upheld the findings that defendants violated the interim injunction by cutting trees and creating pathways. However, it set aside the mandatory injunction directing the electricity board to remove the laid electric line, noting it had already been done, while upholding the fine order against all defendants.

What did the court decide?

Second appeals allowed in part. Mandatory injunction to restore property and remove electric line by respondents 4 & 5 set aside. Order for fine in I.A.3712/1998 stands unaltered.

P.N. Soman Vs Symalakumari — Partition | Kerala HC (2017)

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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 K.HARILAL

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TUESDAY, THE 17TH DAY OF JANUARY 2017/27TH POUSHA, 1938

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SA.No. 192 of 2002 (B)

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AGAINST THE JUDGMENT & DECREE DATED 31-10-2001 IN AS.46/2000 of SUB COURT, THIRUVALLA

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AGAINST THE JUDGMENT & DECREE DATED 30-06-1999 IN OS.3/1995 of MUNSIFF COURT, THIRUVALLA

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APPELLANT/APPELLANT/1ST DEFENDANT::

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P.N. SOMAN, ASWATHI BHAVAN,

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PULLADU MURI, KOIPROM VILLAGE, THIRUVALLA TALUK.

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BY ADV. SRI.LIJU.V.STEPHEN

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RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 5::

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1. SYAMALAKUMARI, CHUZHUKUNNEL PUTHENPURAYIL, PULLADU MURI, KOIPROM VILLAGE.

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2. LEELAMMA, VALIYAKUZHICHAL VEEDU, PULLADU MURI, KOIPROM VILLAGE.

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3. THANKAPPAN, THOTTUCKAL VEEDU, PULLADU MURI, KOIPROM VILLAGE.

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4. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM.

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5. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, MAJOR SECTION, VENNIKULAM.

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R4 & R5 BY ADVS. SRI.KODOTH SREEDHARAN, SC, KSEB R2 BY ADV.SRI.GEORGE POONTHOTTAM

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SRI.P.SANTHALINGAM (SENIOR)

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SRI.S.SHARAN, SC, KSEB

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 1701-2017, ALONG WITH SA. 207/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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S.A. Nos. 192 & 207 of 2002

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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Dated this the 17^th day of January, 2017

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JUDGMENT

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~ ~ ~ ~ ~ ~ ~

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Since the parties are common and the matters in issue involved are also one and the same, these Second Appeals are heard together and disposed of accordingly.

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The appellant in S.A.No.192/2002 is the 1^st defendant

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in O.S.No.3/1995 of the Munsiff's Court, Thiruvalla as well as the appellant in A.S. No.46/2000 of the Sub Court, Thiruvalla. The appellant in S.A. No.207/2002 is the 2^nd defendant in the aforesaid Original Suit as well as the appellant in A.S.No.44/2000 of the Sub Court, Thiruvalla. The aforesaid Original Suit was filed by the 1^st respondent herein seeking an injunction restraining the defendants from trespassing into plaint schedule property and from cutting open a new

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way through the plaint schedule property, after cutting down valuable trees standing therein and drawing electric line through it. It is the case of the plaintiff that the plaint

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SA.192 & 207 of 2002 :2:

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schedule property belongs to her and the defendants have no kind of right over the plaint schedule property; but, defendants 2 and 3 are the owners of the property situating at the south and north of the plaint schedule property. There is a pathway through the western side of the plaint schedule property and defendants 2 and 3 are using the said pathway for access to Vallikkalapadi-Chuzhikkunnam Panchayat road. Now the defendants 1 and 3 are making preparations to cut open a new pathway through the eastern side of the plaint schedule property and also for drawing electric line after cutting down valuable trees thereon.

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The 1^st defendant contended that he is residing on the western side of the northern Panchayat road and he is not in need of such a way through the plaint schedule property. But, he contended that defendants 2 and 3 are travelling to their property through the pathway through the plaint schedule property and there is a 'thodu' starting from the Panchayat road on the north, reaching upto the 'thodu' through the eastern side of Ramakrishnan's property and it is by suppressing the said fact the plaintiff has instituted the

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SA.192 & 207 of 2002 :3:

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suit. Defendants 2 and 3 also contended that they have decided to draw an electric line through the pathway on the western side of the defendants' property. But due to the resistance from the husband of the plaintiff now it is decided to draw the electric line through the western side of the plaint schedule property and the present suit is filed to prevent the drawing of electric line through the eastern 'thodu' portion and the plaintiff has no manner of right over the eastern 'thodu'. Defendants 4 and 5 filed a written statement submitting that they have no intention to draw electric line forcibly through the schedule property and, if necessary, the Board will draw electric line only after obtaining permission from the District Magistrate, as per law.

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On the rival pleadings, the parties have adduced evidence consisting of oral testimony of P.Ws.1 and 2, and D.Ws.1 to 3 and produced Exts.A1, A2, B1, B2 and C1 to C3(a). The Commissioner, who prepared the report and plan, was examined as court witness. After considering the evidence on record, the trial court passed a decree of

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SA.192 & 207 of 2002 :4:

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permanent injunction prohibiting the defendants from cutting open any way through the eastern side of the plaint schedule property and drawing electric line through it. Defendants 1 to 3 were directed to restore the plaint schedule property into its original stage, failing which the plaintiff is entitled to do so and to recover cost thereon. Defendants 4 and 5 were directed to remove the electric line drawn through the eastern side of the plaint schedule property within 15 days from the date of receipt of a copy of the trial court judgment, failing which the plaintiff is entitled to get it removed through court and to recover cost thereon.

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In addition to the said decree, I.A. No.3712/1998 was allowed and the defendants 1 to 3 were ordered to pay an amount of Rs.3,000/- each as fine (compensation) to the plaintiff for violation of the order of interim injunction. The 5^th defendant was also ordered to pay an amount of Rs.3,500/- as fine (compensation) to the plaintiff for violation of the interim injunction order.

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Though the defendants preferred the aforesaid appeals, after reappreciating the evidence on record, the

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SA.192 & 207 of 2002 :5:

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lower appellate court confirmed the findings of the trial court with certain modifications. As per the judgment passed by the lower appellate court, all the appeals are dismissed with a direction to the parties to bear the costs, and made it specifically clear that the decree of the lower appellate court will in no way prevent defendants 4 and 5 from drawing electric line through the plaint schedule property with the permission of the District Magistrate as per the provisions of the Indian Telegraph Act. Thus, the legality and correctness of the concurrent findings with slight modification by the lower appellate court have come up before this Court in these Second Appeals.

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Heard the learned counsel for the appellant and the the learned counsel appearing for the respondents, in each case.

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It stands admitted that the defendants have no kind

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of right over the plaint schedule property. But, all the defendants except 4 and 5 specifically contended that there is a 'thodu' on the eastern side reaching upto the northern Panthayat road and another 'thodu' on the southern side.

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SA.192 & 207 of 2002 :6:

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But, in Ext.C1 commission report, the Commissioner has reported that there is no such 'thodu', as claimed by the defendants, on the eastern side of the plaint schedule property at the time of his first inspection. The trial court has granted an order of interim injunction as prayed for against the defendants restraining them from cutting open a new pathway after cutting down the trees and drawing electric lines through the eastern portion of the plaint schedule property. It is the further case of the plaintiff that in violation of the said interim injunction order the defendants have trespassed into the plaint schedule property and cut opened a new pathway, after cutting valuable trees stood on the eastern side of the plaint schedule property, and thereafter defendants 4 and 5 have drawn electric line through the new pathway.

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At the instance of the defendants, a Commissioner was deputed to ascertain the subsequent changes in the plaint schedule property. In Ext.C2 Report, the Commissioner has stated that at the time when he visited the schedule property for the second time, there was a thodu like

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SA.192 & 207 of 2002 :7:

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portion on the eastern side of the plaint schedule property. Besides, he has noted stumps of certain cut down trees. In support of the commission report P.Ws.1 and 2 have deposed before the court that the defendants 1 and 3 and others have committed mischief in the schedule property. It has come out in evidence that in this connection Ext.A2 judgment shows that C.C.No.65/1995 was charge sheeted against the defendants alleging trespass and commission of mischief over the plaint schedule property and the defendants were found guilty of the said offences and convicted accordingly. Therefore, in view of the subsequent changes, causing violation of the interim injunction order passed by the trial court, brought before the trial court, the court passed a temporary injunction as prayed for in the suit. On an analysis of the evidence of P.Ws.1 and 2, which stands supported by Exts.C1 to C3(a) reports and rough sketches appended to it, it could be seen that the courts below have appreciated the evidence in its correct perspective and passed the impugned judgment and decree. I do not find any kind of illegality or perversity in any of the findings whereby

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SA.192 & 207 of 2002 :8:

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the courts below decreed the suit as prayed for.

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Going by the judgment passed by the lower appellate court, it could be seen that the lower appellate court also confirmed the aforesaid findings with a slight modification. The lower appellate court specifically held that the impugned judgment dismissing the appeal will not stand in the way of drawing electric line through the eastern side of the plaint schedule property in accordance with the provisions under the Indian Telegraph Act and Electricity Act. At this juncture, it is pertinent to note that the plaintiff has not filed Cross Objection challenging the aforesaid finding and it was brought out in evidence that electric line had already been drawn through the eastern side of the plaint schedule property. In view of the specific concession granted by the lower appellate court, this Court is of the view that the mandatory injunction directing the respondents to restore the original position of the plaint schedule property after removing the electric line also has become infructuous, though the same has not been specifically mentioned in the judgment passed by the lower appellate court. Therefore, it

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SA.192 & 207 of 2002 :9:

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is clarified that the mandatory injunction directing to restore the eastern portion of the plaint schedule property to its original position and directing the respondents 4 and 5 to remove the electric line drawn through the eastern side of the plaint schedule property within 15 days from the date of receipt of a copy of the judgment also will stand set aside.

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Coming to the order passed in I.A. No.3712/1998, the learned counsel for the 1^st defendant vehemently contended that there is no material evidence to prove the involvement of the 1^st defendant beyond the shadow of doubt so as to punish him for violation of the temporary injunction order. The learned counsel drew my attention to the written statement filed by the 1^st defendant and the depositions of P.Ws.1 and 2 and D.W.1. It is his submission that the 1^st defendant is residing on the northern side of the northern public road and he has no interest in the matters in dispute involved in the Suit and he was in no need of a way through the plaint schedule property. But, the courts below have failed to distinguish his role by arriving at a finding that he is also guilty of the violation of the injunction order. This Court

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SA.192 & 207 of 2002 :10:

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is unable to accept the aforesaid contention in view of the contention raised by the 1^st defendant in the written statement and the depositions of P.Ws.1 and 2 and D.W.1.

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Going by the written statement filed by the 1^st defendant, it could be seen that though he is residing on the northern side of the northern public road, he specifically contended that there was a 'thodu' on the eastern side of the plaint schedule property, and the defendants 2 and 3 are using the pathway passing through the western side of the plaint schedule property for the ingress and egress to their properties, which lie on the southern side of the plaint schedule property. Thus, he has specifically denied the plaint averments. He has gone to the extent of claiming that there was a 'thodu' on the northern side of the plaint schedule property; but the said contention was found unsustainable in view of Ext.C1 commission report. Going by the depositions of P.Ws.1 and 2, it is seen that they have specifically spoken to the role of the 1^st defendant in the commission of mischief by cutting the trees in the plaint schedule property, and P.W.1 has specifically deposed that

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SA.192 & 207 of 2002 :11:

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he has taken away one tree from the plaint schedule property. Thus, I do not find any reason to distinguish the role of the 1^st defendant in the commission of mischief causing violation of the injunction order, though he is residing on the northern side of the northern Panchayat road. More over, it is to be remembered that he is a party in the Original Suit, wherein an injunction order has been issued against him also, restraining him from cutting open a new pathway and cutting down coconut trees. therefore, if there is any violation of the injunction order, he cannot say that he was unaware of the injunction order passed in the suit.

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On a combined reading of the written statement and the depositions, while he was in the witness box, it is discernible that he was more interested to defend the suit than the other defendants. Therefore, this Court finds that there is no reason to distinguish his part in the commission of mischief causing violation of the interim injunction order. I do not find any reason to interfere with the findings whereby the courts below concurrently found that the defendants are guilty of the violation of the order of interim injunction. So,

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SA.192 & 207 of 2002 :12:

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the order passed in I.A. No.3712/1998 will stand as such without any interference. The mandatory injunction issued against the defendants alone will stand set aside. No substantial question of law arises for consideration in these Second Appeals.

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In the result, these Second Appeals are allowed in part. All pending Interlocutory Applications will stand closed.

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Sd/-

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K.HARILAL, Judge.

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okb

P.N. Soman v. Symalakumari

Case brief

What is this about?

What did the court decide?

P.N. Soman v. Symalakumari

Case brief

What is this about?

What did the court decide?

What the court decided

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