The judgment reinforces the protection of property rights against unlawful encroachment and the necessity of proving title and possession in property disputes.

JUDGMENT

1.

The defendant in the suit is the appellant in this Regular Second Appeal.

2.

The plaintiff filed the suit seeking a permanent prohibitory injunction restraining the defendants and its men and agents from trespassing or further encroaching upon or causing any further loss and damages to the plaintiff or to the plaintiff’s property or in any way interfering with the peaceful possession and enjoyment of the Plaint A Schedule property, directing the defendant to pay damages shown in the Plaint B schedule, for a mandatory injunction directing the defendant to remove the dumped earth from the areca garden and to restore the areca garden and the encroached and newly widened portion of the road in plaint A schedule property to its original condition or to get it done at the cost of the defendant by deputing an amin of the court or in the alternative to direct the defendant to pay the amount of damages estimated by the court, directing the defendant to pay the plaintiff mesne profit at Rs. 200 for the unlawful use and occupation by way of dumping the earth in the plaintiff’s property from 30.03.2003 to 30.07.2003 and directing the defendants to pay future mesne profits at Rs.200 per month till removal of the entire earth dumped in the plaint schedule property.

3.

Plaint A schedule contains 3 items of property having an extent of 2.20 acres, 6 cents and 80 cents . Item No.1 is shown as dry land and item Nos.2 and 3 are shown as areca garden. The plaint schedule property is shown as excluding panchayat road with a width of 37 links.

4.

In plaint B schedule, a total amount of Rs.11,300/- is included. Rs.10,000/- is claimed towards damages caused to 18 yielding areca trees, one yielding coconut tree one non yielding coconut plant and one breadfruit tree. Rs.800/- is claimed as mesne profits. Rs.500/- is claimed as cost of registered notice.

5.

As per plaint allegations, the defendant trespassed into the plaint schedule property to widen the existing Panchayat road, having a width of 37 links passing through the plaint schedule property. The defendant employed JCB to cut the hill and to dump the earth removed from the hill, cutting to the areca garden and causing damages to the areca garden belonging to the plaintiff. The newly extended portion of the road unlawfully encroached on by the defendant has a width of 15 links on either side of the original road and a length of 165 links.

6.

The defendant filed written statement contending, inter alia, that the plaintiff is not the owner in possession of the plaint A schedule property; that the width of the Panchayat road passing through the plaint schedule property is not 37 links ; that the defendant has not caused any damage to the plaint A schedule property; that the defendant did not remove earth from hill cutting; that the defendant did not encroach into the plaint A schedule property; that there is no cause of action for the suit, that the defendant is not liable to pay damages or mesne profit to the plaintiff and that the suit is not maintainable.

7.

The Trial Court decreed the suit as per judgment dated 28.02.2004 granting prohibitory and mandatory injunctions sought for by the plaintiff and further directing the defendant to pay an amount of Rs.5,000/- as damages to the plaintiff and an amount of Rs.100/- per month as mesne profits to the plaintiff from 30.03.2003 till the date of restoration of the property to the plaintiff with costs. The defendant filed AS 76/2004 before the First Appellate Court and the same was dismissed as per Judgment dt. 31.08.2006.

8.

The present Regular Second Appeal filed by the defendant Panchayath is admitted on the following substantial questions of law.

1.

What is the evidentiary value of Ext.C2?

2.

Has the plaintiff proved title and possession following such title in accordance with law?

9.

I heard the Counsel for the appellant. There is no appearance for the respondent.

10.

The counsel for the appellant submitted that the dispute with respect to the alleged encroac