Authorized actions under the Municipalities Act do not cover illegal acts such as trespass, thereby allowing property recovery regardless of Section 544's provisions.

J U D G M E N T

The suit for recovery of possession on the strength of title, for fixation of boundary and for mandatory injunction was dismissed by the trial court. The plaintiff is in appeal.

2. The plaint consists of two schedules; 'A'

schedule has an extent of 35.50 cents in Sy. No.90/1 and the 'B' schedule has an extent of 17.315 cents in Sy. No. 90/3. The properties are lying contiguous. On the southern, western and northern sides of the plaint schedule property is situated a 'thodu'.

3. The property originally belonged to the grand father of the plaintiff as per Ext.A1 Sale Deed and Ext.A2 jenmi karam receipts. On his death the property devolved on his legal heirs including the plaintiff's father Joseph. The siblings of Joseph executed Release Deed 1169/1963 in his favour. Thus Joseph became the absolute title holder of the property. On the death of Joseph, Ext.A3 partition deed was entered into between the legal heirs. Plaint items 'A' and 'B' are item Nos.3 and 4 in the 'A' schedule to the partition, and were allotted to the plaintiff. Ext.A4 is a tax receipt with regard to payment of tax in respect of the properties. The suit is filed alleging that the defendants encroached into the property reducing the same into their possession for construction of a canal and constructed a compound wall in between 'A' and 'B'

schedule properties.

4. The first defendant contended that the suit is not maintainable under Section 544 of the Kerala Municipalities Act , 1994 (hereinafter referred to as “the Act”). The second defendant denied any trespass on their part.

5. The trial court dismissed the suit holding that the property was not identified.

6. I have heard the learned counsel on either side. 7. Exts.A1 to A5 documents evidence the title of the plaintiff over the plaint schedule properties. That the plaint schedule properties were utilized for the formation of a canal is not disputed. There is no rival claim of title over the plaint schedule properties. 8. Exts.C1 and C1(a) are the Commissioner's report and plan identifying the plaint schedule properties. The Commissioner has identified the properties based on the title deeds of the plaintiff. Though the trial court would observe that the side measurements of the properties are not shown in the Commissioner's report, a perusal of Ext.C1(a) Commissioner's plan shows that all the details including the side measurements have been provided therein. The Commissioner was examined as PW4 and the Surveyor was examined as PW5. A reading of the report and the evidence of PWs.4 and 5 indicates that the property has been properly identified by Commissioner.

9. The plaint 'A' schedule property has been identified in Ext.C1(a) and marked therein as plots 'A', 'B' and 'C'. It is to be noticed that, a portion of 'A' schedule shown as plot 'C' in Ext.C1(a) is still in the possession of the plaintiff and the relief claimed is with regard to plots 'A' and 'B' as shown in Ext.C1(a). Plaint 'B' schedule has been identified in Ext.C1(a) plan as plots 'D' and 'E'. In Ext.C1(a), the Commissioner has shown plots 'B' and 'D' as the property utilized for the formation of 'thodu' and plots 'A' and 'E' as properties between which a wall was constructed. The finding of the trial court that the details have not been provided in the Commissioner's report, is not correct. Therefore, I hold that the plaint schedule properties have been identified in Ext.C1(a)

Commissioner's plan.

10. Thus it is found that the plaintiff has proved title over the plaint schedule property and that the plaint schedule property has been properly identified in Ext.C1(a) plan.

11. The contention of the first defendant is essentially based on Section 544 (3) of the Muncipalities Act, that the suit is barred by limitation.

12. Section 544 of the Muncipalities Act Reads thus:- “544. Institution of suits against municipal authorities, officers and other employees.⸺(1) No suit shall be instituted against a Municipality or any Municipal authorit