Second appeal by defendants against decrees ordering dismantling of a waiting shed built on the road margin obstructing the plaintiff's access to the highway. The court upheld the appellate court's finding that the defendants were involved in the construction and held the Panchayat not a necessary party, dismissing the appeal.
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 M.A.ABDUL HAKHIM
MONDAY, THE 22ND DAY OF JULY 2024 / 31ST ASHADHA, 1946
RSA NO. 146 OF 2022
AGAINST THE JUDGMENT DATED 18.11.2021 IN AS NO.62 OF 2019 OF II ADDITIONAL DISTRICT COURT,KOLLAM ARISING OUT OF THE JUDGMENT DATED 18.12.2018 IN OS NO.40 OF 2013 OF MUNSIFF'S COURT, S.PARAVOOR APPELLANTS/RESPONDENTS/DEFENDANTS:
BY ADV G.BHAGAVAT SINGH
RESPONDENT/APPELLANT/PLAINTIFF:
SHAHNA, AGED 33 YEARS D/O.SHAJAHAN, ABY, MARUTHIKUNNU P.O., THALOOR, MADAVOOR VILLAGE, VARKALA TALUK, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SHAJAHAN, S/O.MUHAMMED RASHEED, AGED 60 YEARS, RESIDING AT ABY, MARUTHIKUNNU P.O., THOLOOR, MADAVOOR VILLAGE, VARKALA TALUK, THIRUVANANTHAPURAM.
BY ADVS. SASI M R M.THAHA(K/000029/2019) N.P.SILPA(K/471/2015) SREEKUMAR K.V.(K/348/2019) DHARMYA M.S(K/1412/2020) KAVYA KRISHNAN(K/1848/2021)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
RSA No.146 of 2022
JUDGMENT
RSA No.146 of 2022 3
during the pendency of the suit, the Plaint was amended to incorporate a relief for mandatory injunction to remove Plaint B Schedule Shed.
RSA No.146 of 2022 4
Appellate Court and the First Appellate Court allowed the appeal with costs setting aside the judgment and decree passed by the Trial Court and decreeing the suit ordering the defendants 1 to 4 to dismantle the Plaint B Schedule Structure at their cost or in the alternative, permitting the plaintiff to dismantle the structure and recover the entire expenses from defendants 1 to 4 jointly and severally. A permanent prohibitory injunction was also issued restraining the defendants, their men and agents from marking any construction interfering with the free enjoyment of the plaint A schedule property by the plaintiff and obstructing or reducing the road frontage of the plaint A schedule property .
RSA No.146 of 2022 5
Panchayat, the Panchayat is a necessary party in the suit and hence the suit is bad for non joinder of necessary parties. According to him, the construction of the plaint B schedule waiting shed was not a new construction, it is only a reconstruction of the existing bus stop. He also contended that, the defendants are not the persons who constructed the plaint B schedule waiting shed and hence decree should not have been passed by the Appellate Court against them.
RSA No.146 of 2022 6
waiting shed situated at 'Puramboke'. It is stated in Ext.B1 that, the permission was granted on the application submitted by the public seeking to construct a new waiting shed in memory of the previous Chairman of the Development Standing Committee of the Panchayat, late Sri.Sugathan after demolishing the existing waiting shed. It appears that Panchayath also supported the defendants to make Plaint B Schedule Shed. Though the counsel for the appellant said that Ext.B1 indicates that, there was an existing waiting shed the Advocate Commissioner who visited Plaint B schedule during its construction has not mentioned anything about the remnants of the old construction. Though the defendants contended that several persons are using Plaint B scheduled shed as a waiting shed none of them were examined to prove the said contention. No evidence was adduced to prove that a bus stop was there. The First Appellate Court specifically found that there is no evidence is show that the plaint B schedule waiting shed is constructed in a bus stop. The Advocate Commissioner has reported that in Ext.C1 Commission Report and Ext.C3 Sketch that the waiting shed is constructed on the northern compound wall of plaint A
7
RSA No.146 of 2022
schedule property.
RSA No.146 of 2022 8
details, the defendants do not disclose the name of the persons who collected money and made the construction. It also indicates the active role of the defendants in Plaint B Schedule construction.
RSA No.146 of 2022 9
land and for restoration of the same for the common use of the villagers of the village. Admittedly, the Plaint B schedule shed is on the road margin in front of the plaint A schedule property which obstructs the access of plaint A schedule property to the main road. Admittedly, Plaint B schedule shed is constructed as a monument for the departed leader of the defendants Sri.Sugathan. The role of the defendants in construction of Plaint B schedule shed is sufficiently proved in this case. Filing of this appeal itself would indicate that the defendants are the persons interested to maintain the plaint B schedule Shed. Since the suit was only for permanent prohibitory injunction and mandatory injunction with respect to the action on the part of the defendants and not for any declaratory relief, the Panchayat is not a necessary party in the suit. Accordingly, there is no
merit in this appeal.
Accordingly, this appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM JUDGE
Anu
3 issues framed by the court
Whether the suit was bad for non-joinder of the Grama Panchayat as a necessary party.
Whether the defendants had a sufficient role in the construction of the waiting shed to justify injunction against them.
Whether the first appellate court's decree for dismantling the encroaching structure was sustainable.
Colour shows how this judgement treated each authority
Jagpal Singh v. State of Punjab & OthersReferred¶16
Jagpal Singh V. State of Punjab & Others (2011) 11 SCC 396 · Who else cites this
2 provisions across 1 enactments
Vijayan
Renjan
Shaji
Ganeshan
Shahna (represented by power of attorney holder Shajahan)
M.A.ABDUL HAKHIM
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
M.A.ABDUL HAKHIM
Parties & counsel
