IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 257 of 2007()
1. ATHOLIKKAVU MEETHAL CHANDRAMATHI,
... Petitioner
2. SARASA, W/O.BALAKRISHNAN, SARASA NIVAS,
3. ATHOLIKKAVUMEETHAL JANAKI,
4. -DO- NARAYANI, -DO- -DO-
5. -DO- SUMATHI, D/O.CHEROOTTY, -DO-
6. ASARIKKANDI VILASINI,
Vs
1. NALUKANOATHIL MEETHAL ANILKUMAR,
... Respondent
For Petitioner :SRI.K.S.MENON
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :08/06/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
R.S.A NO. 257 OF 2007
===========================
Dated this the 8th day of June, 2007
JUDGMENT
Supplemental plaintiffs 2 to 7 in O.S.178/1999
on the file of Munsiff Court, Koyilandy who were
impleaded on the death of the original plaintiff
are the appellants. Defendants are the
respondents. Suit was instituted seeking a decree
for permanent prohibitory injunction. The suit was
instituted seeking a decree for permanent
prohibitory injunction and for damages contending
that plaint schedule property belongs to the
plaintiff and he has been in possession and
defendants including sixth defendant Panchayat
trespassed into the property and committed damages
by encroaching upon a portion of the plaint
schedule property for the purpose of widening the
road and therefore plaintiffs are entitled to get a
decree for realisation of Rs.21,370/- as damages.
Defendants resisted the suit contending that
R.S.A.257/07 2
Palakunnu Ottambalam road is having a 4 meter width
and it was constructed by relinquishment of the
property by the owners through which the road is
passing and for the year 1998-99 the Panchayat road
was tarred and the work was completed and
defendants have not committed any trespass and is
not liable to pay any damages.
2. Learned Munsiff framed the necessary issues.
On the evidence of PW1 and Dws. 1 and 2 and Exts.A1
to A7 and Ext.B1 to B9 and C1 to C8, learned
Munsiff held that plaintiffs are not entitled to
the decree sought for. The suit was dismissed.
Subsequently appellants challenged the decree and
judgment before Sub Court, Koyilandy in
A.S.16/2003. Learned Sub Judge on reappreciation
of evidence, though deferred with the findings of
the learned Munsiff that the suit is bad for non-
compliance of Section 249 of Kerala Panchayat Raj
Act, held that evidence establish that in
O.S.41/1994 as evidenced by Ext.B1, final decree,
plaint schedule property was divided and in such
R.S.A.257/07 3
circumstance, appellants are not entitled to the
decree sought for. Learned Sub Judge found that
the plan and the report which was filed in Ext.B2
and B3 in the final decree applications, establish
that the road was in existence earlier and the
width of the road is the same as recorded by the
Commissioner in the present suit and in such
circumstance, appellants are not entitled to the
decree sought for. The appeal was dismissed. It
is challenged in the Second Appeal.
2. Learned counsel appearing for appellants
was heard.
3. The argument of learned counsel appearing
for appellants was that even if a final decree is
passed, till delivery of the respective shares
allotted thereunder are taken by the respective
sharers to their possession and till then
property continues to be co-ownership property and
one among the co-owners is entitled to file the
suit. Learned counsel also argued that courts
below should not have relied on the report and plan
R.S.A.257/07 4
submitted in another suit, even if it is in the
final decree application, without examination of
the Commissioner and in such circumstance, the
report and plan should not have been relied on.
Learned counsel also argued that evidence establish
that sixth respondent Panchayat encroached upon a
portion of the property belonging to appellants and
other co-owners and widened the road and thereby
caused damages and therefore a decree should have
been granted. Learned counsel further argued that
though the trial court dismissed the suit holding
that the suit is bad for non compliance with the
provisions of Section 249 of Kerala Panchayat Raj
Act, learned Sub Judge found that a notice has been
sent as provided under section 249 by one of the
co-owners which is sufficient and in such
circumstances, first Appellate Court should have
granted the decree sought for.
4. On hearing learned counsel appearing for
the appellants, I do not find any substantial
question of law involved in the appeal. Though it
R.S.A.257/07 5
was argued that even after the final decree passed
by the courts, the property continues to be a co-
ownership property, Ext.B4 to B8 establish that the
properties allotted to the respective sharers
were already taken delivery. In such circumstance,
appellants cannot be heard to contend that the
property continued to be a co-ownership property.
In view of the factual position, findings of the
first Appellate Court that plaintiffs are not
entitled to the decree sought for is perfectly
correct.
5. Though it was argued that the report and
plan submitted in another suit cannot be relied on
without examination of the Commissioner, it cannot
be disputed that the report and plan relied on by
the courts below are the reports and plans marked
in the final decree proceedings wherein the first
plaintiff was also a party. Moreover under the
final decree the report and plan were made part of
the decree. In such circumstance, no formal
evidence is necessary to admit the report and plan,
R.S.A.257/07 6
when they form part of the decree. When the report
and plan forms part of that decree, they are also
admissible without any evidence like the decree.
Both the courts on the evidence found that
appellants have not established that they have
right to claim the reliefs. It is a factual finding
which cannot be interfered in exercise of the
powers of this court under section 100 of C.P.C. No
substantial question of law is involved in the
appeal.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
———————
W.P.(C).NO. /06
———————
JUDGMENT
SEPTEMBER,2006