Premalatha and Rajesh v. Puthiaypurayil Abdul Rahiman (deceased) and Kungappally Aboobacker

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 15[TH] DAY OF SEPTEMBER 2021 / 24TH BHADRA,** ## **1943** **OP(C) NO. 35 OF 2019** **CMA 5/2017 OF SUB COURT, VADAKARA, KOZHIKODE** ## **PETITIONER/S:** 1 PREMALATHA AGED 61 YEARS W/O.LATE RAJAN, AMBALA PARAMBATH, PERUVATTAM THAZHE, CHORODE AMSOM, ERAPURAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. 2 RAJESH AGED 1 YEARS S/O.LATE RAJAN, AMBALA PARAMBATH, PRUVATTAM THAZHE, CHORODE AMSOM, ERAPURAM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS. B.KRISHNAN SRI.R.PARTHASARATHY ## **RESPONDENT/S:** 1 PUTHIYAPURAYIL ABDUL RAHIMAN (DIED) S/O.KUTTIALI, PUTHIYAPURAYIL HOUSE, THALASSERY TALUK, KANNUR DISTRICT-670 101, BY POWER OF ATTORNEY HOLDER SURESH BABU, S/O.SUNDARESWARAN.P., SKYLINE GARNET, K.T.GOPINATHAN ROAD, KOTOOLY, KUTHIRAVATTOM POST, KOZHIKODE DISTRICT-673 001. 2 ADDL. RESPONDENT KUNGAPPALLY ABOOBACKER AGED 66 YEARS SUCCESSOR OF DECEASED P.ABDURAHIMAN CHAIRMAN, PARCO INSTITUTE OF MEDICAL SCIENCES PVT LTD, CHORODE AMSOM ERAPURAM DESOM, VATAKARA TALUK P O, CHORODE, KOZHIKODE 673106. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER HANEEFA, S/O KHALID, AGED 31 YEAR, CIVIL ENGINEER, THARAKANDY, 2 **O.P.(C)No.35 of 2019** KOTTAKKAL P O, KOILANDY TALUK, KOZHIKODE 673521. IS IMPLEADED AS ADDL. RESPONDENT VIDE ORDER DTD 28.10.2020 IN I.A.NO.1/2020 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.07.2021, THE COURT ON 15.09.2021 DELIVERED THE FOLLOWING: **O.P.(C)No.35 of 2019** 3 ## JUDGMENT Dated this the 15[th] day of September, 2021 The petitioners are the plaintiffs in O.S.No.134 of 2017. The suit is filed for a permanent prohibitory injunction restraining the defendant/respondent from encroaching upon the pathway (B schedule) lying on the east of the properties of the petitioners (A schedule). The plaint averments are to the following effect; The petitioners, along with two others, are in ownership, possession and enjoyment of the plaint A schedule property. The only access to the property is through B schedule lane on the east, having a length of 60 metres and width varying from 4.5 to 5.00 metres. The property of the respondent is situated on the eastern side of B schedule lane and is comprised in old Sy.No.43/12A2, 12/B, 43/9, 43/10, 43/8B and 43/17 4 ## **O.P.(C)No.35 of 2019** C. The respondent is constructing a huge multispeciality hospital in his property. The defendant constructed the compound wall on the western boundary of his property, adjoining the B schedule lane, at the portion opposite to A schedule was attempted to be constructed by encroaching upon a portion of the lane, thereby reducing its width. Hence the suit for permanent prohibitory injunction. 2. Along with the suit, petitioners filed an application for interim injunction. The trial court allowed the application by Ext.P1 order, restraining the respondent from constructing the compound wall on the eastern side of B schedule lane by reducing its width and also restraining petitioners from widening the lane at the disputed portion. The appeal preferred by the respondent was allowed by Ext.P2 order. In this original petition, the petitioners are challenging the 5 ## **O.P.(C)No.35 of 2019** appellate order. 3. Heard Sri.B.Krishnan, learned Counsel for the petitioners and Sri.Chethan Krishna R, learned Counsel for the respondent. 4. Learned Counsel for the petitioners contended that the trial court had granted injunction, after careful consideration of the available evidence and all relevant factors, namely, _prima facie_ case, balance of convenience and the irreparable damage to which the petitioners will be put to, if the injunction is declined. Referring to the observations in Ext.P1 order, it is pointed out that the petitioners had succeeded in proving that the respondent is holding land in excess of his title deeds. The trial court also found that the respondent will not be put to any prejudice by restraining the construction of a small portion of the compound wall. On the other hand, if the construction is **O.P.(C)No.35 of 2019** 6 permitted to be completed, access to the petitioner's property will be affected. It is contended that the trial court having exercised its discretion reasonably and judiciously, the appellate court should not have interfered, even if it would have taken a different set of facts. In support of the contentions, reliance is placed on the following decisions of the Honourable Supreme Court; _[_ _**Maharwal Khewaji Trust (Regd), Faridkot v. Baldev Dass [(2004) 8 SCC 488], Seema Arshad Zaheer and others v. Municipal Corpn of Greater Mumbai and others [(2006) 5 SCC 282], Neon Laboratories Ltd v. Medical Technologies Ltd and others [(2016) 2 SCC 672]**_ 5. Learned Counsel for the respondent contended that the suit is not maintainable since the hospital is being constructed by a Company named “Parco Institute of Medical Sciences Pvt. 7 ## **O.P.(C)No.35 of 2019** Ltd, of which the defendant is the Chairman, and not by the defendant in his individual capacity. It is submitted that trial court had granted the injunction without there being any material to prove the width of the lane or the alleged encroachment. It is submitted that the reference to the old survey fields in the plaint is misleading and that the re-survey of the lands in question had taken place years back. At present, the plaint B schedule property is in re-survey field No.18/22 of Chorode Village. As a matter of fact, when the petitioners alleged encroachment and attempted to obstruct construction of the compound wall, the respondent had approached the Tahasildar, Vadakara for getting the survey boundaries identified and fixed. Accordingly, the survey authorities had identified the survey boundaries of re-survey field No.18 with special reference to Sub Division 22. As per the resurvey 8 ## **O.P.(C)No.35 of 2019** map, the average width of the lane is less than 2 metres. The trial court had grossly erred in assuming that the respondent is in possession of excess land, without there being any material to support such assumption. Surprisingly, the trial court went on to hold that a supplemental BTR was prepared by adding additional property to the name of the respondent and that the excess land is the portion of the lane encroached upon. The construction of a multi-speciality hospital was stalled by the injunction order. Hence, the order was liable to be vacated in public interest also. 6. The specific pleading in the plaint is that B schedule lane is having a width of 4.5 to 5.0 metres. There is no material to support the said contention. It is an undisputed fact that resurvey was conducted in the year 2011 and the petitioners have not raised any objection or filed appeal. As per Ext.P7 plan prepared by the Taluk 9 ## **O.P.(C)No.35 of 2019** Surveyor, the average width of the lane is only 2 metres. Even as the Advocate Commissioner’s report and plan, the lane is not having a width of 4.5 to 5.0 metres at any point. On the contrary, the maximum width of the lane is noted as 3 metres, that too at its beginning. In such circumstances, the finding of the appellate court that the petitioners had failed to prove the existence of a lane having a width of 4.5 to 5 metres between B schedule property and the property of the respondent, and had thereby failed to establish a _prima facie_ case, is well founded. 7. In the decisions relied on by the learned Counsel for the petitioners, it is held that an appellate court should not flimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court, unless such exercise is palpably perverse. Further, the appellate court should not reassess the materials and seek to 10 ## **O.P.(C)No.35 of 2019** reach a conclusion different from the one reached by the court below, if the conclusion reached by the court below was reasonably feasible. 8. In the instant case, there was no material before the trial court to hold that B schedule lane had a width of 4.5 to 5 metres and the width got reduced by the alleged encroachment. On the other hand, the available materials indicated the width to be much less than the width claimed by the petitioners. Being so, the trial court could not have assumed that the respondent had encroached into the lane, solely based on an averment that the respondent is in possession of land in excess of his title deeds. The other relevant factors, viz; balance of convenience and irreparable damage are also in the respondent’s favour. Hence, interference by the appellate court cannot be faulted. The contention of the respondent regarding maintainability of the suit, ## **O.P.(C)No.35 of 2019** **==> picture [12 x 9] intentionally omitted <==** on the premise that the Company, and not the defendant, is constructing the hospital building, is left open to be decided by the trial court. In the result, the original petition is dismissed. **sd/V.G.ARUN JUDGE** Scl/ 12 ## **O.P.(C)No.35 of 2019** ## **APPENDIX OF OP(C) 35/2019** PETITIONER EXHIBITS EXHIBIT P1 CERTIFIED COPY OF THE ORDER PASSED IN I.A.NO.1231/2017 IN O.S.NO.134/2017 ON THE FILE OF THE MUNSIFF COURT, VATAKARA DATED 21.10.2017. EXHIBIT P2 CERTIFIED COPY OF THE ORDER PASSED BY SUBORDINATE JUDGE'S COURT, VATAKARA IN CMA 5/2017 DATED 11.12.2018.