M.O. Varghese v. The Assistant Engineer, Irrigation Project, Irrigation Office, Thumboormuzhi, Chalakudy; The Executive Engineer, Irrigation Project, Irrigation Department, Chalakudy; The Chief Engineer, Major Irrigation Department, Thiruvananthapuram; The Village Officer, Pariyaram Village, Mukundapuram Taluk, Thrissur District; State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID FRIDAY, THE 9TH DAY OF MARCH 2012/19TH PHALGUNA 1933 SA.No. 507 of 2001 ( ) ---------------------AS.281/1998 of PRINCIPAL SUB COURT,IRINJALAKUDA OS.1419/1997 of PRINCIPAL MUNSIFF'S COURT, IRINJALAKUDA APPELLANT/RESPONDENT No.1/PLAINTIFF --------- M.O.VARGHESE, AGED 68 YEARS, S/O.MALIYEKKAL OUSEPH, RESIDING AT KUTTIKKAD DESOM, PARIYARAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV.SRI.V.V.SURENDRAN ADV.SRI P.A.HARISH RESPONDENTS/APPELLANT AND RESPONDENTS 2 TO 6/DEFENDANTS ----------- 1. VARGHESE, S/O.KIDAYAM ANTONEY, KUTTIKKAD, PARIYARAM VILLAGE. 2. THE ASSISTANT ENGINEER, IRRIGATION PROJECT, IRRIGATION OFFICE, THUMBOORMUZHI, CHALAKUDY. 3. THE EXECUTIVE ENGINEER, IRRIGATION PROJECT, IRRIGATION DEPARTMENT, CHALAKUDY. 4. THE CHIEF ENGINEER, MAJOR IRRIGATION DEPARTMENT, THIRUVANANTHAPURAM. 5. THE VILLAGE OFFICER, PARIYARAM VILLAGE, MUKUNDAPURAM TALUK, THIRISSUR DISTRICT. 6. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, THRISSUR. R2 TO R6 BY GOVERNMENT PLEADER SRI PADMALAYAN R1 BY ADV. SRI.K.I.ABDUL RASHEED R1 BY ADV. SRI.K.A.SHAMSUDEEN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23-02-2012, THE COURT 09/03/2012 DELIVERED THE FOLLOWING: S.A.No.507/2001 ORDER ON C.M.P.NO.1124/2001, I.A.NOS.1032 & 580/2007 IN S.A.NO.507/2001 --------------Dismissed 9/3/2012 Sd/Harun-Ul-Rashid, Judge. True Copy P.S. TO JUDGE. ## **HARUN-UL-RASHID,J.** ## **-------------------------------** ## **S.A. NO.507 OF 2001** ## **------------------------------DATED THIS THE 8TH DAY OF MARCH, 2012** ## **JUDGMENT** The substantial questions of law formulated in the appeal are as follows: _“i) Whether a mandatory injunction can be claimed without a prayer for declaration?_ _ii) Can an individual approach the court seeking a direction for compelling the authorities concerned to do an act, which they are, bound to do, especially when the person concerned is affected by the inaction of wrong action of the authorities?_ _iii) Can the court decide on a point, which is not pleaded nor raced as an issue to be decided in the suit._ _iv) What is the evidentiary value of a possession certificate issued by the Tahsildar without proving the same and without considering the title of the person to whom the said certificate is issued?_ _v) Whether a plea of adverse possession can be taken in respect of Government land, if so what are its requirements?_ **-2-** **S.A.No.507/2001** 2. Plaintiff is the appellant. The appeal is directed against the judgment and decree in A.S.No.281/98 on the file of the Principal Sub Court, Irinjalakjuda arising from the judgment and decree in O.S.No.1419/97 on the file of the Principal Munsiff's Court, Irinjalakuda. The suit was filed for mandatory injunction directing the 6[th] defendant to reinstate the plaint B schedule property into its original position and directing defendants 1 to 4 to take possession of the B schedule property. The trial court decreed the suit and directed the 6[th] defendant to demolish the building and reinstate the original position of the B schedule property so as to have the free ingress and egress of the plaintiff to the A schedule property and directed defendants 1 to 5 to take appropriate steps to evict the 6[th] defendant from the B schedule property within six months failing which the plaintiff is entitled to execute the decree with the assistance of the court. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 3. Plaintiff is the owner and in possession of plaint A schedule property. There is no dispute regarding the title of the plaintiff. The eastern side of A schedule property is a canal and in between the canal and A schedule there is a vacant puramboke land. The said puramboke land is scheduled as B in the plaint. **-3-** ## **S.A.No.507/2001** Further east of this vacant plot lies a distributory canal. On the eastern side of the canal there is a road, which is used by the public. Plaint B schedule property is lying in front of the plaintiff's property. According to the plaintiff, the only way for ingress and egress from the A schedule property to the road on the canal bund is through the plaint B schedule property situated as stated above. On the southern side of the plaint B schedule some neighbouring people trespassed into the said plot and put up sheds in it. Plaintiff alleged that on 9/8/1996 the 6[th] defendant trespassed upon the plaint B schedule property and obstructed the plaintiff's free ingress and egress to the canal road. It is also alleged in the plaint that after trespassing into the plaint B schedule property, the 6[th] defendant put up a shed in it and due to the existence of the shed, the plaintiff is unable to use plaint B schedule property as means of access to the plaint A schedule property. It is also stated in the plaint that the Government had not taken any steps to evict the encroachers from the vacant plots and therefore the suit was filed for mandatory injunction directing the 6[th] defendant to remove the structure and directing defendants 1 to 5 to remove encroachment in the plaint B schedule property. 4. The distributory canal No.2 is situated about 70 feet east to the plaint A schedule property. The irrigation department **-4-** ## **S.A.No.507/2001** has acquired the property from several persons including from the ancestors of the plaintiff for the purpose of constructing an irrigation canal. The property situates between A schedule property and the canal belongs to Government and is remaining as vacant land after the construction of the distributory canal. 5. Defendants 1 to 5 in their written statement admitted that a portion of property left between A schedule and the canal bund belongs to Government and even if any person has trespassed into the Government land, they would be taking steps to evict the encroachers as per law. The 6[th] defendant, who is occupying plaint B schedule property, contended that though he has purchased the property recently, his ancestors were possessing the property since 1968 onwards. The trial court examined the oral and documentary evidence. The trial court evaluated Ext.X1 plan, X2 mahazar, Ext.B1 residential certificate, C1, C1(a), C2 and C2 (a) commission reports and plans. Ext.B1 is the residential certificate issued by the Grama Panchayat wherein building number of the 6[th] respondent is shown an V/209A and that was seen assessed in the year 1997-98 to 1998 till 1999 and the said certificate issued to the 6[th] defendant for the purpose of obtaining electrification. The suit is of the year 1997. After perusing Ext.B1 certificate, the trial court found that from Ext.B1 it can be seen that **-5-** ## **S.A.No.507/2001** only in the year 1997 the building was numbered by the Grama Panchayat. The court further found that there is absolutely no evidence to prove that the building was constructed in the B schedule property prior to 9/8/1996. The allegation in the plaint is that the 6[th] defendant had constructed a house on 9/8/1996. Defendants 1 to 5 who are the Government Officials admitted in the written statement that they would be taking appropriate steps to evict the 6[th] defendant and other trespassers from the puramboke land. The Commissioner in the reports and plans has noted that the house of the 6th respondent is situated in front of the plaint A schedule property that belongs to the plaintiff. He has also reported that the building number found on the shed constructed by the 6[th] defendant was written on a paper and affixed it in front of the said shed and that no reliance can be placed upon the paper affixed in front of the shed of the 6[th] defendant. The Commissioner also reported that the plaintiff has no other way except the B schedule property to have free ingress and egress to the canal bund road. It is reported that the plaintiff's property is blocked by surrounding properties namely, the properties of one Rossa, Anthony and B schedule property. The Commissioner further reported that if the plaintiff goes further to north he can enter into the property of Rossa, who is the wife of the plaintiff, **-6-** ## **S.A.No.507/2001** and reach plaint A schedule property and now Rossa has started construction of a compound wall on the eastern side of her property. The trial court, after considering the facts, circumstances and the contentions raised by the parties, held that it is clearly proved that the building has been constructed in front of the plaint A schedule property by obstructing the free ingress and egress of the plaintiff. 6. The trial court also considered and followed the settled principles of law that the owner of a road side property, whose right of access to the public road is infringed by an obstruction to the public road has a cause of action both as a member of public and as owner of the road side property. In such case no damage can be adequate to compensate the owner for the harm suffered by him which is of a continuing nature and hence he is entitled to have the obstruction removed. The trial court held that the cause of action arose immediately when the 6[th] defendant constructed a shed by obstructing the free ingress and egress of the plaintiff to the canal bund road. The trial court followed the decision of this Court reported in **(Vavakkavu Muslim Thaikkavapally v. Narayanan Purushan (1991 (2) K.L.T. 477).** This Court considered the similar issue in the said case. This Court held that the a strip of land lying in between the road and the plaint **-7-** ## **S.A.No.507/2001** schedule property can only be considered as either part of the road or as land kept for the purpose of the road and that the plaintiff, who are the owners of the adjoining land, namely plaint A schedule property, have got a natural right to have ingress and egress to the canal bund road lying on the eastern side of the plaint A schedule property separated only by the plaint B schedule property, which is also the land of the Government. It was held that such rights are liable to be protected against the interference by all others except by the State in exercise of the superior right. In the said case also the plaintiff's access to the road was blocked, which is a strip of land lying on the side of the main road. Following the said principles laid down, the trial court held that the plaintiff is entitled to get mandatory injunction directing the 6[th] defendant to remove the shed constructed by him infringing the right of way to the public road. 7. The 6[th] defendant filed an appeal. The Appellate Court reversed the findings of the trial court, allowed the appeal and dismissed the suit. The Appellate Court appreciated the facts and circumstances in a different way. Relying on Ext.C1 report the Appellate Court observed that the Commissioner has stated that there is no pathway through the B schedule property for ingress and egress to the plaint A schedule property. The very case of the **-8-** ## **S.A.No.507/2001** plaintiff is that his ingress and egress to plaint A schedule property is blocked by putting up a shed at the instance of the 6[th] defendant. That is a reason why a Commissioner was deputed for site inspection. The Appellate Court observed that the Commissioner reported that there is no pathway through the B schedule for ingress and egress to the plaint A schedule property, that 15 years old trees were standing in the boundary of A schedule as well as B schedule was reported by the Commissioner and that the age of the hut seen in the B schedule is also stated by the Commissioner as 5 to 6 years. The aforesaid facts are stated to be the main reason for non-suiting the plaintiff. The report of the Commissioner was not properly appreciated by the Appellate Judge. At the time of Commissioner's visit, there is a shed in the plaint B schedule property. The very case of the plaintiffs is that shed was put up by the 6[th] defendant and thereby his access to the plaint A schedule property is blocked. Therefore, it is natural for the Commissioner to report that there is no pathway through the plaint B schedule property at the time of inspection. It is the very case of the plaintiff that the Commissioner reported that the hut in the plaint B schedule property is seen aged 5 to 6 years. In fact what is reported is that it is seen that the shed situated in the property appears to be aged 5 to 6 years. He has reported in a casual way as **-9-** ## **S.A.No.507/2001** to the age of the shed. The report submitted by the Commissioner was not appreciated in the background of the facts and circumstances of the case and the learned Judge came to the conclusion that the shed was in existence in the plaint B schedule property for about 5 to 6 years. In fact the trial court considered the very same question in the light of oral and documentary evidence. The trial court reached the conclusion that the shed was put up during the year 1996 as contended by the plaintiff. 8. The Appellate Court further held that the plaintiff have access to the canal bund road through the northern property, that belongs to the wife of the plaintiff and the said aspect was concealed by the plaintiff in the suit. The scope of the suit was not appreciated in the right perspective. The suit itself was filed for removal of the shed put up by encroaching plaint B schedule property blocking the plaintiff's ingress and egress to the canal bund road. Therefore, the fact that the plaintiff has got access through another person's property, even if she is his wife, is not a reason for rejecting the contentions raised by the plaintiff. There is no basis for concluding that the property might have been in possession of the 6[th] defendant prior to 1/1/1992. The Lower Appellate Court observed that the canal road was not used as a pathway by the people in that locality and therefore the decision **-10-** ## **S.A.No.507/2001** relied on by the trial court is not applicable to the facts of the present case. The said finding also is liable to be interfered with. The very case of the plaintiff is that he is using the plaint B schedule property as an access to the canal bund road that lies east to the canal. The plaintiff has no case that he is using the western portion of the canal bund as a pathway for access to his property. His case is that that portion is used as access to the road that exists on the eastern side of the canal. The Appellate Court failed to follow the principles laid down in the decision referred above. The Court held that there is no evidence to show that the disputed plot is part of public road or a public street and is a national highway. The right to use the vacant portion of the land that is lying by the side of the road need not be an area lying by the side of a national highway. People have the right to use as a means of access to the road any vacant space lying in between the tarred portion of the road and the boundary of the private property. Therefore, the reasons stated by the trial court wrongly reading the principles of law laid down by this Court are not sustainable in law. In the said facts and circumstances of the case, this Court is of the view that the matter requires re-consideration by the Lower Appellate Court. Lower Appellate Court has failed to appreciate the facts, circumstances and the principles of law applicable to the present **-11-** ## **S.A.No.507/2001** case in the right perspective. In the result, the appeal is allowed. The judgment and decree passed in A.S.No.281/98 on the file of the Sub Court, Irinjalakuda are set aside. The case is remanded to the Sub Court, Irinjalakuda for fresh consideration. The Sub Court shall dispose of the appeal within a period of eight months from the date of receipt of a copy of this judgment. No order as to costs. **HARUN-UL-RASHID, JUDGE.** **kcv.** **-12-** ## **S.A.No.507/2001** HARUN-UL-RASHID, J. -----------------------------------S.A.NO. OF ------------------------------------ JUDGMENT March, 2012