V.Suseela Bai vs Corporation Of Kochi
2021 Latest Caselaw 11279 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

          THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

THURSDAY, THE 08TH DAY OF APRIL 2021/18TH CHAITHRA, 1943

                    RSA.No.220 OF 2021

      AS 65/2018 OF SUB COURT, KOCHI DTD.21.12.2020

   OS 230/2016 OF MUNSIFF COURT, KOCHI DTD.15.10.2018

APPELLANTS/APPELLANTS/PLAINTIFFS:
      1    V.SUSEELA BAI,
           AGED 59 YEARS,
           W/O. VENUGOPALAN, RESIDING AT C.C.12/266 E,
           ARAKKAPARAMBU ROAD, PANDIKUDI, KOCHI.

     2     VIJAYANAND,
           AGED 32 YEARS,
           S/O.LATE VENUGOPALAN,
           RESIDING AT C.C 12/266 E, ARAKKAPARAMBU ROAD,
           PANDIKUDI,KOCHI.

           BY ADV. SRI.B.KRISHNA MANI

RESPONDENTS/RESPONDENTS/DEFENDANTS:
      1    CORPORATION OF KOCHI,
           REPRESENTED BY ITS SECRETARY,
           CORPORATION BUILDING, NEAR BOAT JETTY,
           ERNAKULAM-682 011.

     2     THE ASSISTANT EXECUTIVE ENGINEER,
           CORPORATION OF KOCHI, ZONAL OFFICE,
           FORTKOCHI, KOCHI-682 001.

     3     THE ASSISTANT ENGINEER,
           CORPORATION OF KOCHI, ZONAL OFFICE,
           FORTKOCHI, KOCHI-682 001.

   R1 BY ADV.SMT.P.Y.SHEHEERA
   SC FOR KOCHI CORPORATION SRI.K.JANARDHANA SHENOY

     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 29-03-2021, THE COURT ON 08-04-2021 DELIVERED THE
FOLLOWING:
 R.S.A.No.220 of 2021


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                              JUDGMENT

This R.S.A. is directed against the judgment and

decree dated 21.12.2020 in A.S.No.65/2018 on the file of

the Sub Court, Kochi (hereinafter referred to as 'the first

appellate court') which arose from the judgment and

decree dated 15.10.2018 in O.S.No.230/2016 on the file

of the Munsiff's Court, Kochi (hereinafter referred to as

'the trial court').

2. The appellants and respondents herein are the

plaintiffs and the defendants respectively before the trial

court. For the sake of clarity, the parties are hereinafter

referred to as the plaintiffs and defendants according to

their status in the trial court unless otherwise stated. The

suit was filed for permanent prohibitory injunction

restraining the defendants from making any

proceeding/action pursuant to the notice dated 30.6.2018

issued by the Assistant Executive Engineer, Corporation of R.S.A.No.220 of 2021

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Kochi/2nd defendant. There is also a prayer to restrain the

defendants from trespassing into the plaint schedule

property or to cause obstruction to the peaceful

enjoyment of the plaint schedule property or to cause any

damages therein. The trial court as per judgment and

decree dated 15.10.2018 dismissed the suit. The plaintiffs

filed an appeal before the first appellate court challenging

the judgment and decree of the trial court. By the

judgment and decree dated 21.12.2020, the first

appellate court dismissed the appeal confirming the

judgment and decree of the trial court. Hence this R.S.A.

3. The gist of the case projected in the plaint is as

follows:-

The plaint schedule properties belonged to the

1st plaintiff as per release deed No.5338/1996 and sale

deed No.2369/1995 of the Sub Registrar's Office, Kochi.

The 2nd plaintiff is the elder son of the 1st plaintiff. He is R.S.A.No.220 of 2021

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managing the plaint schedule properties for and on behalf

of the 1st plaintiff. After obtaining the plaint schedule item

No.2 property, the plaintiff had constructed a compound

wall on the western side of the plaint schedule properties.

Likewise, the property owner on the southern side

constructed a compound wall on the south of the item

No.2 property. After obtaining valid title over the plaint

schedule properties, the 1st plaintiff had renovated and

repaired the compound wall. The property which is

situated on the eastern side was purchased by one

Venkateshwara Prabhu in the year 2014 and thereafter he

started to raise untenable contentions to grab the plaint

schedule properties. There exists a concreted pathway on

the northern side of the plaint schedule property and the

said pathway is vested with the 1st defendant Corporation.

Sri.Venkateshwara Prabhu had filed a frivolous petition

before the 1st defendant alleging that the 1 st plaintiff R.S.A.No.220 of 2021

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trespassed into the Corporation Road. Later,

Sri.Venkateshwara Prabhu had filed an original petition

against the Corporation before this Court as W.P.(C).

No.25959/2015. The said case was disposed on

13.11.2015 directing the Authorities to take action, if any

encroachment is found. Pursuant to the direction, the 1 st

defendant issued notice to both parties. After having

heard both sides, the 2nd defendant issued a notice dated

30.6.2016 to the 1st plaintiff informing that the Secretary

had directed to measure out the property of the 1 st

plaintiff and to file a report. According to the plaintiffs, the

measurements are to be done by the Survey Authorities

and the officers of the 1st defendant are not competent to

measure out the property. Hence the suit is filed.

4. The defendants remained exparte to the suit.

The trial court examined PW1 and marked Exts.A1 to A7,

Exts.C1 to C2(a).

R.S.A.No.220 of 2021

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5. Heard Sri.B.Krishna Mani, the learned counsel

for the appellants and Sri.K.Janardhana Shenoy, the

learned Standing Counsel for the Kochi Corporation.

6. The learned counsel for the appellants

contended that Ext.A6 notice was issued by an

incompetent official of the Kochi Corporation for

measuring the properties. According to the learned

counsel, Ext.A6 does not mention the provision under

which the same was issued and the notice was issued to

measure out a private property travelling beyond the

powers of the Corporation. Elaborating on the submission,

the learned counsel for the appellants would contend that

encroachments, if any, on puramboke land can be

measured only by the officials of the Survey Department.

The learned counsel for the appellants would further

contend that the Commissioner had submitted Exts.C1

and C(2) with the aid of the officials of the Survey R.S.A.No.220 of 2021

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Department which would reveal that the plaintiffs had not

encroached into the puramboke land as alleged.

7. On the other hand, the learned Standing

Counsel for the Corporation submitted that the suit was

filed by the plaintiffs without impleading the aggrieved in

the party array subsequent to the judgment of this Court

in W.P.(C)No.25959/2015. The learned Standing Counsel

for the Corporation submitted that the defendants are

obliged to conduct measurement of the property as

directed by this Court and the plaintiffs have chosen to

challenge the notice issued without resorting to alternative

remedies available before the Tribunal for Local-self

Government Institutions.

8. One Venkateshwara Prabhu filed W.P.

(C).No.25959/2015 before this Court on account of

removal of encroachment in the road puramboke. The

allegation is that Smt.V.Suseela Bhai, who is the 6th R.S.A.No.220 of 2021

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respondent in W.P.(C).No.25959/2015 and the 1 st plaintiff

in the suit, has encroached upon road puramboke. In the

said writ proceedings, defendants 1 and 3 are arrayed as

respondent Nos.4 and 5 respectively. The respondents 1

to 3 in the said writ proceedings are the District Collector,

Revenue Divisional Officer and Tahsildar respectively.

Pursuant to the notice issued by this Court the

respondents 1 to 6 entered appearance in the writ

proceedings. After having heard both sides, this Court

directed the Cochin Corporation to take appropriate

decision in this matter after hearing the writ petitioner

and the 6th respondent/1st plaintiff. This Court further

clarified that, if any encroachment is found, necessary

action shall be initiated to evict the encroachers and the

4th respondent/1st defendant is directed to take

appropriate action within three months from the date of

receipt of a copy of the judgment. It is clear from the R.S.A.No.220 of 2021

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judgment in W.P.(C)No.25959/2015 that the 1 st defendant

is obliged to comply with the directions issued by this

Court on the judicial side. It is pertinent to note that the

1st plaintiff was arrayed as the 6 th respondent in the writ

proceedings and this Court passed an order after hearing

the 6th respondent as well.

9. Pursuant to the judgment of this Court, the 1 st

defendant issued notice for hearing the parties.

Accordingly, the matter was heard on 28.5.2016. Soon

thereafter, the 2nd defendant issued Ext.A6 intimation to

the parties to measure out the properties on 5.7.2016 at

11 am under the supervision of the 3 rd defendant. Feeling

aggrieved, the plaintiffs filed a suit for injunction

simpliciter before the trial court. Strange as it may sound,

the defendants 1 and 3 who entered appearance before

this Court in the writ proceeding remained exparte before

the trial court. The plaintiffs took out a Commission to R.S.A.No.220 of 2021

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measure out the property with the aid of Survey

Authorities and obtained Exts.C1 to C2(a). However, the

trial court dismissed the suit discarding the claim of the

plaintiffs that the plaintiffs have not encroached into the

puramboke land as per the Commission Report and Plan.

10. Initially, the suit was filed for injunction

simpliciter. As per Section 544(2) of the Kerala

Municipality Act, 1994, no statutory notice is required in

which the only relief claimed is an injunction which object

would be defeated by the giving of the notice or the

postponement of the institution of the suit. However,

during the appeal, the plaintiffs amended the plaint for

declaration of the title and possession of the plaintiffs over

the plaint schedule item No.1 property. Further, the

plaintiffs sought for restraining the Corporation Authorities

from measuring out the properties of the plaintiffs other

than by the Revenue Authorities. The judgment of the first R.S.A.No.220 of 2021

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appellate court would indicate that the defendants

remained exparte in the appeal as well. However, the

amendment was allowed without issuing statutory notice

as required under Section 544 of the Kerala Municipality

Act. The plaintiffs were precluded from instituting a suit

for declaration before the trial court without issuing notice

as contemplated under Section 544 of the Kerala

Municipality Act. However, the bar contemplated under

Section 544 of the Kerala Municipality Act was not

considered by the first appellate court while allowing the

amendment application presumably for the reason that

the defendants remained absent before the first appellate

court.

11. Ext.A6 notice was issued by the Assistant

Executive Engineer as directed by the Secretary of the

Corporation. Assistant Executive Engineer and the

Secretary of the Corporation were parties before this R.S.A.No.220 of 2021

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Court in W.P.(C)No.25959/2015. As directed by this Court,

the 1st defendant was obliged to take appropriate action to

comply with the directions issued by this Court. Although,

Venkateshwara Prabhu filed W.P.(C)No.25959/2015, the

plaintiffs deliberately filed the suit against the Corporation

and its officials without the junction of Venkateshwara

Prabhu as a party to the suit. The 1 st defendant initially

issued notice to the parties concerned and after having

heard the parties on 28.5.2016, issued Ext.A6 notice to

measure out the properties on 05.07.2016 at 11 am under

the supervision of the 3rd defendant. On going through

Ext.A6, it is clear that the notice was issued in accordance

with the directions issued by this Court in W.P.

(C)No.25959/2015. In fact, the 1st and 3rd defendants are

obliged to comply with the directions of this Court. Hence,

Ext.A6 order was issued in accordance with law. It is

pertinent to note that Ext.A6 order was passed after R.S.A.No.220 of 2021

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hearing the plaintiffs as well. The plaintiffs did not raise

any contention before this Court in W.P.(C)No.25959/2015

that the survey authorities alone are competent to

measure out the properties. Ext.A6 was only a notice to

measure out the properties as directed by this Court. No

measurement was done. No order was passed by the 1 st

defendant in accordance with the measurement done by

the 3rd defendant as per Ext.A6. Still, the plaintiffs filed a

suit for injunction before the Court and surveyed the

property with the aid of an Advocate Commissioner and

Surveyor. The plaintiffs developed their case and wanted

to get their right declared through the civil court. In fact,

the plaintiffs initially challenged Ext.A6 notice without a

prayer for declaration. The suit was dismissed by the trial

court. To cure the defect, an attempt was made to amend

the plaint incorporating a plea for declaration as well. It

was alleged before the first appellate court that survey R.S.A.No.220 of 2021

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authority alone was competent to survey the properties

for which requisite amendment was sought for and was

allowed by the first appellate court. Although the

amendment was allowed and carried out by the

appellants, the appeal was dismissed on merits.

12. First of all, a suit of this nature is experimental

in nature. No order affecting the rights and liabilities of

the parties was passed by the 1st defendant Corporation.

In case an order affecting the rights and liabilities of the

parties is passed by the Corporation, it is within the realm

of the Tribunal for Local-Self Government Institutions

constituted under Section 271S of the Kerala Panchayat

Raj Act, 1994 by virtue of Section 509(6) of the Kerala

Municipality Act within 30 days from the date of passing of

such order. The plaintiffs have filed the suit without the

junction of the petitioner in the W.P.(C)No.25959/2015.

Initially, the suit was filed for injunction which was later R.S.A.No.220 of 2021

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amended for declaration. The facts that the defendants

are obliged to comply with the directions issued in W.P.

(C)No.25959/2015 have been overlooked by the plaintiffs.

The conduct of the plaintiffs would dis-entitle them to get

a discretionary remedy of injunction from the court.

13. A second appeal is not a matter of right. The

right of appeal is conferred by statute. A second appeal

only lies on a substantial question of law. If statute

confers a limited right of appeal, the Court cannot expand

the scope of the appeal. It was not open to the plaintiffs

to re-agitate facts or to call upon the High Court to re-

analyse or re-appreciate evidence in a second appeal. In

the case on hand, both the trial court and the first

appellate court considered Ext.A6 notice issued by the 1 st

defendant in the light of the oral evidence adduced by

PW1, Exts.A1 to A7 and Exts.C1 to C2(a) and declined the

prayer for injunction and other reliefs. R.S.A.No.220 of 2021

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14. On behalf of the appellants, it has strenuously

been contended with considerable force that the

defendants have no right to measure out the property of

the puramboke land and the competent Authority to

measure out the puramboke land is the Survey

Authorities. However, it has come out in evidence that

Ext.A6 notice was issued by the 1 st defendant in

accordance with the directions issued by this Court in the

writ proceedings after hearing the 1st plaintiff also (6th

respondent in W.P.(C)No.25959/2015). To be

"substantial", a question of law must be debatable, not

previously settled by the law of the land or any binding

precedent, and must have a material bearing on the

decision of the case and/or the rights of the parties before

it, if answered either way. As stated earlier, in a second

appeal, the jurisdiction of the High Court being confined to

substantial question of law, a finding of fact that the R.S.A.No.220 of 2021

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conduct of the plaintiffs dis-entitles to get the relief of

injunction is not open to challenge in second appeal, even

if the appreciation of evidence is wrong. There is no

debatable issue before this Court which is not covered by

settled principles of law or precedents.

15. The trial court and the first appellate court

examined the evidence on record at length and arrived at

a reasoned conclusion that the plaintiffs are not entitled to

get a decree for permanent prohibitory injunction and

other reliefs. The concurrent findings of facts of the trial

court and the first appellate court do not warrant

interference in a second appeal.

16. Last but not the least, the defendants 1 to 3

remained exparte before the trial court and the first

appellate court for the reasons better known to them

despite the directions issued by this Court in W.P.

(C)No.25959/2015. The conduct of the respondents is R.S.A.No.220 of 2021

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suspicious. No written statement was filed before the trial

court. No contention was raised before the first appellate

court, though an amendment was filed seeking to

incorporate a prayer for declaration as well. In the first

appellate court, it is recorded that no vakalath was filed

by the respondents. It indicates that no appearance was

made and no vakalath was filed.

17. In the light of the above circumstances, the

Registry is directed to forward a copy of this judgment to

the Secretary, Local Administration, for appropriate action

against the erring officials in accordance with law.

For the reasons discussed above, the R.S.A. is

dismissed. Pending applications, if any, stand disposed of.

Sd/-

N.ANIL KUMAR, JUDGE skj