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HIGH COURT OF KERALA
PIUS C.KURIAKOSE, N.K.BALAKRISHNAN, JJ
K.P.GOPALAKRISHNAN NAIR – Appellant
Versus
TAHSILDAR AND EXECUTIVE MAGISTRATE – Respondent
WA 1959 2010
Injunction - Property Dispute - O.S. No. 193/1995, Section 133 Cr.P.C. - The court interpreted provisions relating to property rights and trespass, affirming the finality of existing decrees while emphasizing the concept of fraud in judicial proceedings.
Fact of the Case:
The case involves a long-standing property dispute where the appellant, after prior litigation, is accused of encroaching upon land owned by the deceased and his heirs. The appellant claims rights over a pathway through a disputed area, asserting it was a historical path, while the respondent holds a decree restricting access due to earlier appellate judgments.
Finding of the Court:
The court reinforced the binding nature of prior decrees in respect to the disputed property, confirming the validity of restrictive judgments against trespassing. It recognized established legal principles regarding easements and access rights, ruling that the prior decrees stand unaffected by the alleged fraudulent claims to the property.
Issues: The central issues involve claims of fraud on earlier judicial decisions, the interpretation of deeds and survey records concerning property rights, and the management of access routes to the appellant's property amidst established judicial constraints.
Ratio Decidendi: The key legal principle is that fraud vitiates judicial acts, but existing decrees are binding unless formally overturned. The court upheld the integrity of prior rulings and the principle that those claiming rights must substantiate their claims without relying on fraud.
Final Decision: The appeals are dismissed, affirming that the existing decrees are binding and legitimate.
J U D G M E N T
N.K.Balakrishnan, J.
Sri.K.P.Gopalakrishnan Nair, the petitioner in W.P.(C)
No.14605/2010 is the appellant in W.A.No.1959 of 2010. The aforesaid Gopalakrishnan Nair and his wife Smt.Lalithakumari are the appellants in W.A.No.1990 of 2010. The litigation between the parties started in the year 1984. Sri.Sreedharan Nair, the father of Sri.Pratap S. Nair and husband of Smt.Ashadevi owned 78 cents of land in Survey No.10211, 1.14 Acre in Survey No.10212 and 85 cents in Survey No.10213 thus, making a total of 2 Acre 77 cents. It was alleged that in 1984, certain persons residing on the western side of the above 2 Acres 77 cents of land attempted to trespass upon a portion of that property in order to form a pathway to go to the public road on the eastern side of that property. Sreedharan Nair thus filed O.S.No.37/1984 before the Munsiff's Court, Kollam seeking a permanent prohibitory injunction restraining those persons from trespassing upon his land. In the aforesaid suit the plaint 'A' schedule property was shown as 85 cents in Survey No.10213. The pathway claimed by the defendants therein was shown as 'B' schedule. Besides, the compound wall on the eastern side was specifically shown as 'D' schedule. Though that suit was dismissed by the trial court, the appellate court in A.S.No.19/1986 reversed the decree and judgment of the trial court and granted a permanent prohibitory injunction as sought for in the plaint as evidenced by Ext.P1 judgment dated 10.7.1989. The Second Appeal No.939/1989 filed by the defendants in that suit was dismissed on 30.7.1998. Sreedharan Nair died. His legal representatives filed E.P.274/2006 to enforce the decree. The compound wall was got constructed on the eastern side of the plaint schedule property therein in terms of the decree passed pursuant to Ext.P1 judgment, under the supervision of the Advocate Commissioner.
2. Sri.Gopalakrishnan Nair, the appellant herein and his brother owned an extent of 35 cents of land lying immediate to the south of the property held by late Sreedharan Nair shown as 'A' schedule in Ext.A1 suit. A partition was entered into between Gopalakrishnan and his brother in 1975 by which 18 cents of land being the western portion was allotted to Gopalakrishnan Nair. The property measuring 17 cents having road frontage on the east was allotted to the brother of Gopalakrishnan Nair. An attempt was made by Gopalakrishnan Nair to encroach upon a portion of his northern boundary property held by late Sreedharan Nair. For that purpose compound wall lying on the southern side of Sreedharan Nair's property was demolished. It is contended that the very same pathway claimed by the defendants in Ext.P1 judgment was tried to be created again by Gopalakrishnan Nair and it was for that purpose he demolished the southern compound wall of Sreedharan Nair's property and attempted to use a portion of Sreedharan Nair's property as a pathway to proceed to the road on the east. Gopalakrishnan Nair and his wife were not parties to Ext.P1 suit. Hence, Sreedharan Nair filed O.S.No.193/99 against Gopalakrishnan Nair for a prohibitory injunction restraining Gopalakrishnan Nair and his men from trespassing into the property held by Sreedharan Nair and also for a mandatory injunction to restore the compound wall to its original position. Gopalakrishnan Nair remained ex-parte in that suit and consequently Ext.P3, Ex-parte decree dated 9.1.1996 was passed. It is marked as Ext.P5 in W.P.(C)No.14605/2010. 3. The appellant contends that he and his wife have been residing in the building situated in 18 cents of land in Survey No.10214 and that the said property has compound walls on all sides and iron gate on northern boundary for passage to the way on the north. According to the appellant 2.50 Ares (6.178 cents) of government land in Re-Survey No.41 described as “Bhoosthithi way” is part of 84 cents of government land in old Survey No.10210 and it was reserved by the government for road in Ext.P1
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