Kerala High Court
Ramachandran Nair vs P.K Ravi on 28 January, 2025
2025:KER:6576
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 28TH DAY OF JANUARY 2025 / 8TH MAGHA, 1946
RSA NO. 114 OF 2023
AGAINST THE JUDGMENT AND DECREE DATED 31.08.2022 IN AS
NO.29 OF 2017 OF SUB COURT, CHERTHALA ARISING OUT OF THE
JUDGMENT AND DECREE DATED 10.04.2017 IN OS NO.113 OF 2014 OF
PRINCIPAL MUNSIFF COURT, CHERTHALA
APPELLANT IN RSA -APPELLANT IN A.S. - PLAINTIFF IN SUIT
RAMACHANDRAN NAIR
AGED 77 YEARS
S/O PRABHAKARAN NAIR, KUTTAPPA SADANAM,
MATTATHIL BHAGOM MURI,
AROOKUTTY VILLAGE. PIN 688535,
PIN - 688 535
BY ADV HENA BAHULEYAN
RESPONDENT IN R.S.A - RESPONDENTS IN A.S. - DEFENDANTS IN
SUIT
1 P.K RAVI
AGED 73 YEARS
S/O KRISHNAN, PANAKKATTU HOUSE, WARD NO. 2,
PANAVALLI P.O, CHELATTU BHAGOM MURI, AROOKUTTY
VILLAGE., PIN - 688 535
2 KARTHIKEYAN
AGED 59 YEARS
S/O KUMARAN VAIDYAN @ KANAKATTUNNEL, THANKAPPAN
VAIDYAN,VADUTHAL JETTY P.O,
MATTATHILBHAGOM MURI, AROOKUTTY VILLAGE,
PIN - 688 535
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 28.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RSA NO. 114 OF 2023 2 2025:KER:6576
JUDGMENT
1. The appellant is the plaintiff in the suit. The suit was for a
permanent prohibitory injunction.
2. The plaint allegations are that the plaintiff derived the plaint
schedule property having an extent of 5 ½ cents of land as per
Ext.A1 Partition deed of the year 1994. On the southern side
of the plaint schedule property, there is a public road having a
width of 3 ½ meters. There are survey stones on the south-
eastern corner and south-western corner of the plaint schedule
property. When the southern property owner encroached into
the public road, the property having a width of 1 ½ meters from
the property of the plaintiff was used to maintain the width of
the road at 3 ½ meters. The cause of action for the suit alleged
is that the defendants threatened that they will construct a
boundary wall on the northern side of the pathway and deny
the plaintiff's right to enter into the pathway. They attempted to
cut and remove a full-grown coconut tree standing in the plaint
RSA NO. 114 OF 2023 3 2025:KER:6576
schedule property. Hence, the suit was filed seeking a decree
for a permanent prohibitory injunction restraining the
defendants from trespassing into the plaint schedule property,
from cutting and removing the coconut tree standing in the
plaint schedule property, from widening the southern public
road encroaching into the plaint schedule property, and also
constructing a compound wall and denying the plaintiff's right
of entering to the southern public road from his property.
3. The defendant opposed the suit, filing a Written Statement
contending inter alia that the entire plaint schedule property is
not in possession of the plaintiff. The description of the plaint
scheduled property is not correct. There is another way to
have a width of 3 meters on the eastern side of the plaint
schedule property. The southern public was in existence from
1981 onwards. The local public decided to widen the southern
pathway and they entrusted the widening works with the office
bearers of Mathanam Devaswam and the property owners
granted consent to the office bearers of the Mathanam
devaswam for widening the said road, and the width of the said
RSA NO. 114 OF 2023 4 2025:KER:6576
road was widened to 5 meters at a length of 50 meters. A
major portion of the road runs through the property of
Mathanam Devaswam. All local people, including the plaintiff,
have been using the said way. The defendants have no
intention to construct any wall on the northern side of the public
way, as apprehended by the plaintiff. The coconut tree is
standing in a public property, and it is standing in a dangerous
position.
4. The Trial Court dismissed the suit, and on filing an appeal
before the First Appellate Court, the First Appellate Court
dismissed the appeal, confirming the judgment and decree of
the trial court.
5. I heard the learned counsel for the appellant Adv. Hena
Bahuleyan.
6. The learned counsel for the appellant contended that the
defendants have no right or authority to encroach into the
plaint schedule property for widening the road. The plaint
schedule property is correctly identified in the Commission
Report. The title of plaint A schedule property is not disputed
RSA NO. 114 OF 2023 5 2025:KER:6576
by the defendants. The existence of survey stones on the
southern side of the plaint schedule property proves the
boundary of the plaintiff's plaint schedule property.
7. It is seen that the defendants are impleaded in the suit in a
personal capacity. The evidence on record reveals that they
were the office bearers of the Devaswam before filing the suit.
They claim that they have no individual or personal interest in
the matter and they have been residing elsewhere. The
grievance of the plaintiff is against Devaswam. It is the
Devaswam who had been taking action to widen the public
road. Hence the plaintiff has no cause of action against the
defendants.
8. The Trial Court, as well as the First appellate Court, found that
the plaintiff did not prove possession over the entire plaint
schedule property. The First Appellate Court found that Exts.
and C2(a) Plan could not be relied on as the surveyor admitted
that he measured the property starting from one of the
compound wall as the boundary. Even going by Exts.C2 and
C2(a), the extent of the plaint scheduled property will come to
RSA NO. 114 OF 2023 6 2025:KER:6576
2.27 Ares corresponding to 5.608 cents. A portion of the
plaintiff's property, having an extent of 894 Sq Links, is
included in the eastern road. When this extent is deducted
from 5.608 cents, the extent comes to only 4.714 cents. The
plaintiff claims on the 5 ½ cents, which is included in the plaint
schedule property. It is not explained when the title deed
covers 6 cents of land and how the plaintiff included only 5 ½
cents in plaint schedule property. Even after the filing of the
Commission Report and Plan, the plaintiff did not make the
necessary amendment in the plaint. So, it is clear that the
plaintiff is not in possession of the plaint schedule property
having an extent of 5/2 cents.
9. The defendants have specifically stated in their Written
Statement that they have no intention to construct any
compound wall on the northern side of the public way
preventing the plaintiff's access to the public road on the
southern side. Hence the plaintiff could not have any cause of
action in this regard.
RSA NO. 114 OF 2023 7 2025:KER:6576
10. According to the defendants, the coconut tree referred to in the
plaint does not stand on the property of the plaintiff. It is
admitted by the plaintiff that the said tree was cut and removed
by revenue authorities and not by the defendants. Hence the
plaintiff could not have any cause of action in this regard also.
The said action was done during the pendency of the suit. But
those facts were not put on record by making appropriate
pleadings in the matter.
11. In view of the aforesaid discussion, I do not find any reason to
interfere with the judgment and decrees passed by the Trial
Court as well as the First Appellate Court. No substantial
question of law arises in the matter. Hence, the Regular
Second Appeal is dismissed.
M.A.ABDUL HAKHIM
JUDGE
mus
