IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1068 of 2008()
1. JOYILAL, W/O.SASIDHARAN, AGED 53 YEARS,
... Petitioner
Vs
1. KRISHNANKUTTY, S/O.RAMALINGAM,
... Respondent
For Petitioner :SRI.V.S.BABU GIREESAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :05/11/2008
O R D E R
V. RAMKUMAR, J.
= = = = = = = = = = = = =
R.S.A.No.1068 of 2008
= = = = = = = = = = = = = =
Dated this the 5th day of November, 2008
JUDGMENT
The plaintiff in O.S.No.177 of 1996 on the file of the
Munsiff’s Court, Attingal is the appellant in this Second Appeal.
The said suit was one for prohibitory and mandatory injunction
against the construction carried on by the defendant in the plaint
B Schedule Property shown as admeasuring 1.766 cents
allegedly in violation of the Building Rules as well as the Kerala
Panchayat Raj Act, 1994.
2. The case of the plaintiff can be summarised as follows:-
The plaintiff is the owner in possession of the plaint A
Schedule Property admeasuring 15 cents comprised in Survey
No.1782/1 of Pulimath village in Cherayinkeezhu Taluk. The
plaint B Schedule Property belonging to the dependant lies on
the western boundary of the plaint A Schedule Property. The
total extent of plaint B Schedule Property is 1.766 cents
comprising in Survey No.1782/3. To the further west of the
plaint B Schedule Property is the M.C.road. The defendant has
R.S.ANo.1068 of 2008
2
started the construction of a terraced building in the plaint B
Schedule Property. For the construction of pillars, the defendant
had removed earth after encroaching into the plaint A Schedule
Property for about 1.85 meters. The construction of the pillars
on the western side is against the provisions of the Kerala
Panchayat Raj Act in not leaving sufficient open space from the
M.C.Road. The construction is carried out in violation of the
provisions of the Kerala Panchayat Raj Act and the Building
Rules. Hence the suit.
3. The suit was resisted by the defendant contending, inter
alia, as follows:-
The case of the plaintiff that the defendant is in possession
of only 1.766 cents of land is not correct. This defendant had
purchased 4 cents of land as evidenced by Ext.B1 registered sale
deed dated 16.8.1977. Ever since then, this defendant is in
possession and enjoyment of the said property. This defendant
has already started the construction work after obtaining
permission from the Panchayat authorities. The plaint allegation
that the defendant has violated the Building Rules and the
provisions of the Kerala Panchayat Raj Act is not correct. This
defendant has left sufficient open space as required by the Rules.
R.S.ANo.1068 of 2008
3
This defendant has not encroached into the plaint A Schedule
Property. The plaintiff did not raise any objection when this
defendant removed the earth from the Plaint B Schedule
Property. The property of the plaintiff was formerly a paddy
field which was raised by him years back. There was a thodu
between the plaint A and B Schedule properties. The plaintiff
had filled up the said thodu and had levelled the remaining
paddy field. The boundary between the plaint A and B Schedule
was the said thodu which is not in existence now. This defendant
had obtained permission from Pulimath Panchayat. The said
panchayat is a necessary party to the suit which has to be
dismissed.
4. On the side of the plaintiff Exts.A1 to A4 were marked.
Four witnesses were examined as PWs.1to 4 of whom PW1 is the
husband of the plaintiff. On the side of the defendant Exts.B1 to
B4 were marked and DWs. 1 and 2 were examined of whom DW1
is the defendant himself. The learned Munsiff, after trial, as
per judgment and decree dated 18.8.2000, dismissed the suit
holding, inter alia, that since the Building Rules were not
applicable to the Pulimath Panchayat at the time of the starting
of the construction, the allegation of the plaintiff that the
R.S.ANo.1068 of 2008
4
defendant had violated the Building Rules is not sustainable, that
going by the Commissioner’s report and plan prepared with the
assistance of the surveyor and the evidence of the Advocate
Commissioner as well as that of the Surveyor it was not safe to
accept the report of the Commissioner to the effect that the
distance between the western pillars of the construction and the
retaining wall at the eastern extremity of M.C.Road was 3.1
meters. However, the trial court found that notwithstanding the
apparent contradiction between the evidence of the surveyor and
the report of the Commissioner, except filing her objection to the
report and plan, the plaintiff did not apply for remitting the
same to the Commissioner, nor did she apply for an additional
report and plan. In that view of the matter the trial court
dismissed the suit holding that the plaintiff had failed to prove
that the defendant had violated the Building Rules or the
provisions in the Kerala Panchayat Raj Act. On appeal preferred
by the plaintiff as A.S.No.60/2000, the lower appellate court also
concurred with the conclusions reached by the trial court and
dismissed the appeal as per the judgment and decree dated
27.10.2007. Hence this Second Appeal.
5. The learned counsel for the appellant/plaintiff reiterated
R.S.ANo.1068 of 2008
5
the contentions of the plaintiff. He made the following further
submissions before me:-
Both the courts have come to the conclusion that Exts.C2
report and C2(a) plan cannot be fully relied on in the light of the
apparent contradictions between the distance shown therein and
the testimony of the surveyor examined as PW3. If so, it was not
open to the courts to blame the plaintiff for not filing an
application for remitting the report and plan or for applying for
an additional report since there is no such requirement under
Rules 10,12 and 14 of Order XXVI C.P.C. On the concurrent
finding that the report and plan of the Commissioner could not
be fully relied on, the court itself should have suo motu set aside
the report and plan and remitted the same to the Commissioner.
The courts below went wrong in casting the burden on the
plaintiff.
6. I am afraid that I cannot agree with the above
submissions. Firstly, the plaintiff came to the court alleging that
the Building Rules were violated by not leaving sufficient space
at the boundary between the plaint A Schedule property of the
plaintiff and the plaint B Schedule property situated to the west
of the plaint A schedule property. Both the courts below have
R.S.ANo.1068 of 2008
6
held that since the Building Rules were not applicable to the said
building where the construction is carried out, the plaintiff could
not complain of not giving sufficient space at the boundary.
Moreover, the Commissioner noted that a space of 1metre has
been left between the eastern pillar of the construction and the
eastern extremity of the Plaint B Schedule Property. The
defendant has a specific case that the boundary between plaint A
and B schedule properties was a thodu and the plaint A schedule
property which was a paddy field was filled up by the plaintiff
who had also levelled the thodu. The said case of the defendant
appears to be true. The Commissioner has specifically noted
that there was no temporary boundary between A and B
schedule properties. The distance of one meter has been seen
left from the eastern pillar to the extremity of the plaint B
Schedule Property. Eventhough the Building Rules are not
applicable, sufficient space has been left on the eastern side of
the plaint schedule property and the plaintiff cannot be heard to
complain that no space was left.
7. Now coming to the western side of the construction, it is
seen that there is a triangular plot in between the plaint B
Schedule property and the M.C.Road. So, the plaint B Schedule
R.S.ANo.1068 of 2008
7
property is not technically abutting the M.C.Road which is on the
west. Eventhough Exts.C2(a) plan C2 report were prepared with
the assistance of the Taluk surveyor, the Taluk Surveyor when
examined as PW3 would take exception to which was noted by
the Advocate Commissioner. Having subscribed his signature to
Ext.C2(a) plan, it was not open to PW3 to depose at variance
from what has been shown in Ext.C2(a) plan. Even if implicit
faith could be attributed to the testimony of PW3 as has been
done still sufficient space has been left on the western side of
the construction on the plaint B Schedule Property. C2(a) plan
does not show any encroachment into the road puramboke as
well. Whether the vacant space leaves 3.1 meters as noted by
the Commissioner or a lesser space as asserted by PW3, Taluk
Surveyor, the fact remains that sufficient space has been left on
the western side of the construction in between the construction
and the triangular plot abutting of the M.C.Road. It is
essentially for the panchayat which has permitted the defendant
to put up the construction to take exception to the violation, if
any, of the provisions of the Kerala Panchayat Raj Act. It is
pertinent in this connection to note that the defendant had
specifically raised a contention in the written statement that the
R.S.ANo.1068 of 2008
8
Panchayat is a necessary party to the suit. In spite of raising
such a contention, the plaintiff did not think it necessary to
implead the Panchayat as an additional defendant. The plaintiff
cannot now come forward with a plea that there is infraction of
the provisions of the Kerala Panchayat Raj Act. I see no good
ground to interfere with the Judgments concurrently passed by
the courts below.
No questions of law, much less any substantial question of
law arises for consideration in this second appeal. The
questions of law formulated in the memorandum of appeal do not
arise for consideration in this second appeal which is accordingly
dismissed in limine.
Dated this the 5th day of November, 2008.
V. RAMKUMAR, JUDGE
sj