Abel Antony v. Alagappanagar Grama Panchayath and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **WEDNESDAY,THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940** ## **OP(C).No. 184 of 2019** **AGAINST THE ORDER/JUDGMENT IN OS 983/2017 of PRINCIPAL MUNSIFF COURT ,IRINJALAKUDA** ## **PETITIONERS:** |**1**|**ALAGAPPANAGAR GRAMA PANCHAYATH**| |---|---| ||**REPRESENTED BY SECRETARY,**| ||**ALAGAPPANAGAR GRAMA PANCHAYATH KARYALAYAM, VENDORE,**| ||**AMBALLUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR**| ||**DISTRICT.**| |**2**|**RAJESWARI,**| ||**PRESIDENT ALAGAPPANAGAR GRAMA PANCHAYATH,**| ||**ALAGAPPANAGAR GRAMA PANCHAYATH KARYALAYAM, VENDORE,**| ||**AMBALLUR VILLAGE,**| ||**MUKUNDAPURAM TALUK,**| ||**THRISSUR DISTRICT.**| |**3**|**SECRETARY,**| ||**ALAGAPPANAGAR GRAMA PANCHAYATH KARYALAYAM, VENDORE,**| ||**AMBALLUR VILLAGE,**| ||**MUKUNDAPURAM TALUK,**| ||**THRISSUR DISTRICT.**| |**4**|**K. PRADEEPKUMAR,**| ||**KSHEMAKARYA STANDING COMMITTEE CHAIRMAN,**| ||**ALAGAPPANAGAR GRAMA PANCHAYATH KARYALAYAM, VENDORE,**| ||**AMBALLUR VILLAGE,**| ||**MUKUNDAPURAM TALUK,**| ||**THRISSUR DISTRICT.**| |**5**|**P.K. VINOD,**| ||**MEMBER OF ALAGAPPANAGAR GRAMA PANCHAYATH,**| ||**ALAGAPPANAGAR GRAMA PANCHAYATH KARYALAYAM, VENDORE,**| ||**AMBALLUR VILLAGE,**| ||**MUKUNDAPURAM TALUK,**| ||**THRISSUR DISTRICT.**| ||**BY ADVS.**| ||**SRI.K.S.BHARATHAN**| ||**KUM.S.SWATHY**| OP(C).No. 184 of 2019 2 ## **SRI.ABEL ANTONY** |**RESPONDENTS**<br>**:**|**RESPONDENTS**<br>**:**|| |---|---|---| |**1**||**GEORGE**| |||**AGED 62 YEARS**| |||**S/O. NEREPARAMBIL VAREED,**| |||**MANNAMPETTA DESOM,**| |||**AMBALLUR VILLAGE,**| |||**MUKUNDAPURAM TALUK,**| |||**THRISSUR DISTRICT 680 301.**| |**2**||**ALEX CHUKKARI,**| |||**KODAKARA BLOCK PACHAYATH MEMBER,**| |||**KODAKARA BLOCK PANCHAYATH OFFICE,**| |||**PUTHUKKAD DESOM, THORAVU VILLAGE, MUKUNDAPURAM**| |||**TALUK,**| |||**THRISSUR DISTRICT 680 301,**| |||**(WRONGLY MENTIONED AS ALEX CHUKKARI, MEMBER OF**| |||**KODAKARA GRAMA PANCHAYATH MEMBER KODAKARA GRAMA**| |||**PANCHAYATH OFFICE, THORAVU VILLAGE, MUKUNDAPURAM**| |||**TALUK, 680 301.**| |||**BY ADVS.**| |||**SRI.C.JOSEPH JOHNY**| |||**SMT.R.RAJITHA**| |||**SMT.SMINI JOSE**| |||**SRI.SANTHOSH P.PODUVAL**| **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** OP(C).No. 184 of 2019 3 ## **JUDGMENT** Defendants 1 to 5 in O.S.No.983 of 2017 on the files of the Munsiff's Court, Irinjalakuda are the petitioners in this original petition. 2. O.S.No. 983 of 2017 is a suit for injunction. The case set out by the plaintiff in the plaint is that the plaint schedule property abutting the Amballoor-Varantharappilly public road on its north belongs to the plaintiff and others; that the plaint schedule property was surrounded by compound walls on all its four sides and that the defendants have trespassed into the plaint schedule property and demolished its northern compound wall on 25.3.2017. The suit was, therefore, for a decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property and causing acts of destruction therein. The plaintiff obtained in the suit, an order of temporary injunction on the same lines and the same is in force. The defendants are the local Grama Panchayat, its President, Secretary and some of the members of the committee. Though the defendants denied the allegations levelled against them in the plaint, it was contended by them that the northern compound wall of the plaint schedule property was one constructed encroaching upon the public road. An Advocate Commissioner was appointed in the suit to conduct a local inspection. Ext.P5 is the report of the Advocate Commissioner. In Ext.P5 report, the Advocate Commissioner has OP(C).No. 184 of 2019 4 reported that the foundation on which the northern compound wall of the plaint schedule property was constructed exists at the site. In the light of the report of the Advocate Commissioner, the plaintiff preferred Ext.P3 application seeking an order of temporary injunction restraining the defendants from causing obstructions to him in the matter of restoring the northern compound wall of the plaint schedule property on the foundation of the demolished compound wall existing at the site. Ext.P3 application was opposed by the defendants on the ground mainly that the plaintiff is not entitled to an order of injunction as prayed for in the application. The trial court allowed Ext.P3 application subject to the rider that the construction shall be carried out under the supervision of the Advocate Commissioner appointed in terms of the order. Ext.P7 is the order passed by the court in this connection. It was also clarified by the court in Ext.P7 order that the construction of the compound wall as aforesaid shall be at the risk of the plaintiff and if it is found later that the construction is not on the exact boundary of the property, the same is liable to be removed by the plaintiff at his risk. The defendants though challenged Ext.P7 order in appeal, the appellate court affirmed Ext.P7 order. Ext.P9 is the judgment delivered by the appellate court in this connection. Ext.P7 order and Ext.P9 judgment are under challenge in the original petition. 3. Heard the learned counsel for the petitioners as also the OP(C).No. 184 of 2019 5 learned counsel for the contesting respondent, the plaintiff. 4. The learned counsel for the petitioners contended that Ext.P3 application is one that falls beyond the scope of the suit and therefore, the trial court ought not have entertained the same. It was also contended by the learned counsel that Ext.P7 is in the nature of an interim mandatory injunction and that an interim mandatory injunction can be passed by a court only to restore status quo as on the date of the suit. According to the learned counsel, an interim mandatory injunction cannot be passed as done in the instant case to restore status quo as on a date prior to the institution of the suit. The learned counsel relied on the decisions of the Apex Court in **Dorab Cawasji Warden** v. **Coomi Sorab Warden and others** [(1990) 2 SCC 117] and **Samir Narain Bhojwani** v. **M/s.Aurora Properties and Investments and another** (2018 KHC 6615), in support of the said contention. It was also contended by the learned counsel that the court has not considered the question as to whether the foundation on which the plaintiff is permitted to put up the superstructure lies on the exact boundary of the plaint schedule property and that therefore, the order passed by the court has the effect of permitting the plaintiff to put up a compound wall encroaching on a public road. It was also contended by the learned counsel for the petitioners that if the impugned decisions are allowed to stand, the plaintiff would be in a position to retain his compound wall on the encroached land by OP(C).No. 184 of 2019 6 withdrawing the suit after implementing the decisions. 5. Per contra, the learned counsel for the contesting respondents submitted that what is sought for in Ext.P3 is an order of temporary prohibitory injunction and an order of temporary prohibitory injunction can be sought even to restore status quo as on a day prior to the institution of the suit. The learned counsel relied on the decision of this Court in **Appukuttan Nair** v. **Hydrose** (2004(1) KLT 350), in support of the said proposition. It was also contended by the learned counsel that in the absence of any prayer in the form of a counter claim by the defendants and in the absence of any proceedings against the plaintiff by the competent authorities for removal of the alleged encroachment made by him, the only issue in the suit is as to whether the plaintiff was in possession of the plaint schedule property for the purpose of sustaining the decree of permanent prohibitory injunction claimed in the suit and therefore, it is unnecessary for the court in the present suit to consider whether the compound wall is permitted to be restored on the exact boundary of the plaint schedule property. 6. I have considered the contentions raised by the learned counsel on either side. The claim made by the plaintiff that the plaint schedule property belongs to him is not seen disputed by the defendants. The fact that there was a compound wall on the northern side of the plaint schedule property abutting the public road and the OP(C).No. 184 of 2019 7 fact that the same was removed by some miscreants are also not seen disputed by the defendants. The case of the defendants is only that the northern compound wall of the plaint schedule property was not on the exact northern boundary of the plaint schedule property and that the same was one constructed encroaching upon the public road. The stand of the plaintiff, on the other hand, is that the northern compound wall of his property was on the exact boundary of his property and that he has not encroached upon any portion of the public road. As pointed out by the learned counsel for the petitioners, the suit being one for injunction, the plaintiff has to establish possession of the suit property for sustaining the relief claimed in the suit. In so far as the plaintiff claims possession based on his title and in so far as he asserts that he is not in possession of any puramboke, the plaintiff has to establish the identity of the suit property based on his title deed for the purpose of establishing possession over the same. As such, the contention raised by the learned counsel for the plaintiff that it is not necessary for the court go into the correctness of the boundary of the plaint schedule property for the purpose of deciding the suit cannot be accepted. Be that as it may, the question arises for consideration is as to whether the plaintiff is entitled to the order of injunction claimed in Ext.P3 application. OP(C).No. 184 of 2019 8 As noted, the fact that there was a compound wall in existence on the northern boundary of the plaint schedule property and the fact that the same was removed by some miscreants prior to the institution of the suit and also the fact that the foundation of the said compound wall is still available at the site are not disputed by the defendants. The case of the plaintiff is that he is entitled to restore the northern compound wall of his property on the existing foundation and that he is not permitted by the defendants do so. It is on that basis that he sought an order of injunction in Ext.P3 application. There is nothing on record to indicate that any steps have been taken by the competent authorities to remove the encroachments alleged to have been made by the plaintiff. The defendants are also not claiming any relief in the suit in such a way as to restrain the plaintiff from constructing the northern compound wall of his property in any particular manner. In the above circumstances, according to me, the plaintiff is certainly entitled to claim an order of temporary injunction as claimed by him in Ext.P3 application. I take this view also for the reason that if such a view is not taken, the plaintiff will be constrained to keep his property opened without any protection during the pendency of the suit. No prejudice whatsoever would be caused to the defendants by this order as the court has made it clear that the OP(C).No. 184 of 2019 9 compound wall ordered to be restored is liable to be removed, if it is found at the time of disposal of the suit that the same is not on the exact northern boundary of the plaint schedule property. This is the view taken by this court in **Appukuttan Nair** _(supra)_ . It was held by this court in the said case that a prohibitory injunction can be granted for restoring status quo anterior to the date of the suit as well, if found necessary. As Ext.P7 order is not an order of temporary mandatory injunction, the principles laid down by the Apex court in the decisions cited by the learned counsel for the petitioners do not apply to the facts of the present case. The contention taken by the learned counsel for the petitioners that if the impugned decisions are allowed to stand, the plaintiff would be in a position to retain his compound wall on the encroached land by withdrawing the suit after implementing the decisions is also without merit as in such an event, the plaintiff may not get the aid of the court to protect his property. In the said view of the matter, I do not find any merit in the original petition and the same is, accordingly, dismissed. **Sd/-** **P.B.SURESH KUMAR** **SKS** **JUDGE** OP(C).No. 184 of 2019 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE OS NO. 983/2017 BEFORE THE PRINCIPAL MUNSIFFS COURT, IRINJALAKUDA.** **EXHIBIT P2 TRUE COPY OF ORDER DATED 29.3.2017 IN IA NO. 2037/2017 IN OS NO. 983/2017.** - **EXHIBIT P3 TRUE COPY OF I.A. NO. 2038/2018 IN OS NO. 983/2017 ALONG WITH THE AFFIDAVIT DATED 6.4.2018** - **EXHIBIT P4 TRUE COPY OF THE COUNTER DATED 9.4.2018. EXHIBIT P5 TRUE COPY OF THE ADVOCATE COMMISSION REPORTED AND PLAN DATED 5.4.2017** - **EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT DATED 19.12.2017** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 14.9.2018 IN IA NO. 2028 OF 2018 IN OS NO. 983 OF 2017** - **EXHIBIT P8 TRUE COPY OF THE MEMORANDUM OF CIVIL MISCELLANEOUS APPEAL C.M.A. NO. 61/2018 DATED 24.09.2018** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 3.1.2019 BY THE PRINCIPAL SUB COURT, IRINJALAKUDA IN CMA. NO. 61/2018** - **EXHIBIT P10 TRUE COPY OF THE PLAINT IN OS NO. 1227/2017 DATED 11.4.2017 BEFORE THE PRINCIPAL MUNSIFFS COURT, IRINJALAKUDA.** **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 14.9.2018 IN I.A. NO. 2332/2017 IN OS NO. 1227/2017. RESPONDENT'S EXHIBITS : NIL** OP(C).No. 184 of 2019 11