Point of Law: Section 10 of Indian Telegraph Act deals with power for telegraph authority to place and maintain telegraph lines and posts.

JUDGMENT :

This regular second appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as 'CPC), challenging the decree and judgment dated 29.01.2022 in A.S.No.35/2020 on the files of the Additional District Court-I, Manjeri, arising out of the decree and judgment dated 20.12.2019 in O.S.No.430/2016 on the files of the Munsiff's Court, Manjeri. The appellants herein are plaintiff No.2 and supplemental plaintiffs 3 to 11 in the above suit and the respondents herein are the defendants.

2. Heard Sri.P.B.Krishnan, the learned counsel appearing for the appellants as well as Sri.Riji Rajendran, the learned Standing Counsel appearing for the Kerala State Electricity Board Ltd. in detail. Perused the records.

3. While admitting this appeal, my learned predecessor, as per order dated 25.03.2022, formulated the following substantial questions of law:

“i) Is the installation of an Electrical Transformer covered by the provisions of the Indian Telegraph Act, 1885?

ii) Is not Sec.10, 17(1) and 17(2) of the Indian Telegraph Act, 1885 confined to the installation of a telegraph line and post by a telegraph authority?

iii) Is not the prayer for removal of an electrical transformer from a private property outside the purview of the Indian Telegraph Act, 1885?

iv) Is not the prayer for Prohibitory Injunction restraining the charging of electrical transformer outside the purview of the Indian Telegraph Act, 1885?

v) Is the lower appellate court correct in law in readily inferring ouster of jurisdiction of the civil court under Sec.9 of the Code of Civil Procedure, 1908 and holding that the suit is not maintainable under Sec.41(h) of the Specific Relief Act, 1963? vi) Is the lower appellate court justified in not deciding all the issues in fact and law raised in the Appeal?”

4. I shall refer the parties in this regular second appeal as 'plaintiffs' and 'Electricity Board' for convenience.

5. The plaintiffs' case in brief:

The plaintiffs, who alleged to be the owners of the plaint A schedule property, filed the present suit for injunction, restraining the Electricity Board from charging the transformer erected/placed on the plaint schedule property and also for a mandatory injunction, directing the defendants to remove the transformer from the plaint schedule property.

6. The Electricity Board resisted the suit by filing written statement. The following contentions raised in the written statement. It was contended that the suit is not maintainable and the District Magistrate is the authority to decide the dispute which comes under Sec.16(1) of the Indian Telegraphs Act, 1885 read with Sec.164 of the Electricity Act. It was contended further that the plaintiffs have no right and possession over the property, where the transformer was installed and such installation was necessitated to adjust low voltage problem in Ward No.10 of Malappuram Municipality. According to the defendants, the Transformer was installed on the side of Moozhikal bypass Veluthedeathmanna road and the place where the Transformer installed was the property relinquished by the local people. Further, the erection of transformer was started on 20.10.2015 and finished on 30.04.2016. The second plaintiff had produced copy of his title deed before the Assistant Engineer, KSEB and claimed that the Transformer was installed in Resurvey No.606/3, the plaint schedule property. Subsequently, the Taluk Surveyor measured the property and found that the Transformer was situated in Resurvey No.606/1. But no documents were produced by the plaintiffs to prove their ownership in the property situated in Resurvey No.606/1. The defendants charged the Transformer on 24.07.2006 and as such, the relief of prohibitory injunction restraining charging of the transformer and mandatory injunction to remove the transformer must fail.

7. Addressing the rival pleadings, the trial court raised necessary issues and tried the matter. PWs.1 to 4 examined and Ex