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2025 Supreme(Online)(Ker) 25353
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Easwaran S., J
LAZER – Appellant
Versus
JOSE VARGHESE – Respondent
RSA NO. 45 OF 2025 | AS NO.8 OF 2023 | OS NO.415 OF 2014
For the Appellants/Petitioners: SRI.BABY ANTONY, SRI.BABY ABRAHAM
For the Respondents:
Civil courts can adjudicate cases unless explicitly barred by law, and the advocate commissioner's report is admissible as evidence.
Headnote:(A) Specific Relief Act, 1963 - Section 41(h) - The plaintiff filed suit for permanent injunction regarding encroachment....The trial court ruled in favor of the plaintiff based on advocate commissioner’s report, and the appellate court affirmed this decision. (Paras 1, 2, 3, 9, 10, 12)
(B) Civil Procedure - Maintainability of suit - Defendants contended that the plaintiff has alternate remedies, but the court noted the authority of civil courts in such cases. (Paras 4, 9)
Facts of the case:
The plaintiff sought injunction against the defendants for encroaching upon public road properties and improperly excavating soil from their land.
Findings of Court:
Both courts upheld that the report of the advocate commissioner was accepted, and the defendants failed to substantiate their claims, therefore, the suit was maintained.
Issues: The main issues included whether the plaintiff was entitled to a decree for forever prohibitory injunction and whether alternative remedies barred the suit.
Ratio Decidendi: The courts affirmed that a civil court can entertain the suit unless expressly barred, and the report of the advocate commissioner was valid as evidence.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. property dispute involving encroachment and injunction. (Para 1 , 2 , 3) |
| 2. trial court's findings based on evidence. (Para 5 , 6) |
| 3. arguments on maintainability of the suit. (Para 7 , 8 , 9) |
| 4. evaluation of evidence by advocate commissioner. (Para 10 , 11) |
| 5. final dismissal of the appeal. (Para 12) |
EASWARAN S., J.
-------------------------------- R.S.A. No.45 of 2025 ------------------------------------------
Dated this the 17th day of June, 2025 JUDGMENT Defendant Nos.1 and 2 in O.S. No.415 of 2014 on the files of the Munsiff Court, Perumbavoor, are the appellants herein. The
1st respondent herein was the plaintiff therein.
2. The brief facts necessary for disposal of the appeal are as follows:
The plaintiff filed the aforesaid suit for injunction. According to the plaintiff, the plaint A schedule property belongs to him by virtue of Ext.A1 document No.1494/99. The plaint B schedule property to the said document is set apart to the plaintiff and plaint A schedule property was set apart for the plaintiff’s brother Mathachan. The entire property was cultivated with rubber and, subsequently, the rubber trees were cut and removed for replanting the same. The 2nd defendant is the son of the 1st defendant. The plaint B schedule property belonged to the 1st defendant and the plaintiff came to know that some property belonging to the 1st defendant was assigned in favour of the 2nd defendant. Since the plaint schedule property was lying on the southern side of the Pallikkara-Kakkanad road and the property is lying about 5 feet in height from the road, the defendants had excavated the soil from their property recently. The plaint B schedule property is comprised in resurvey No.80/3 and there is a direct access from the property to Pallikkara-Kakkanad road. Eastern side of the plaint B schedule property is a panchayath road. The said way is lying on the eastern side of the defendants property. In the western side, the plaintiff’s property proceeds to south and then to west and thereafter to the north and proceeds through the western side of the Wonderla towards north and it ends at Pallikkara-Kakkanad road. The said road is lying in the western side of the Harijan Colony and, as per the resurvey record, it is lying in resurvey No.80/4. The aforesaid way was described as plaint C schedule property. The plaint C schedule property is a public road and as per the measurements available in the panchayath records and revenue records, the said way is having a length of 9.3 meters at the beginning. On the eastern side of the building situated in the plaint schedule property, an encroachment was made into plaint C schedule property by the defendants which made the plaintiff to prefer a complaint to the revenue authorities.
Since the defendants have excavated soil from the road puramboke to a depth of 1‰ metres and attempted to construct a new building, the aforesaid suit was filed.
3. The defendants entered appearance and filed a written statement contending that there is no cause of action in as much as the road (plaint C schedule) is a panchayath road. The Kunnathunadu Panchayath is not made a party to the suit and therefore the suit is not maintainable. The right of the plaintiff over plaint A schedule property is to be proved by the plaintiff and that the descriptions of the plaint B schedule property is not correct. As per the document, Ext.B2, the property was settled in favour of the 2nd defendant and the 2nd defendant is constructing a house and for which, he had obtained a permit from the Kunnathunadu Panchayath. The plaint C schedule way is having a 3 metre width and is a public road and, earlier, it was only a way through which the public could walk, and later widened by surrendering the property of the 1st defendant. The property which is lying in the northern side of the plaint A schedule property belonged to Mathachan and is lying facing to PWD road. The said property and plaint schedule B property is lying at a height
