M U SUNNY Vs. M MANI

JUDGEMENT

(1.) DEFENDANTS in O.S.No.175 of 2003 of the court of learned Munsiff, Devikulam challenge the decree for prohibitory injunction and recovery of damages to the tune of Rs.18,000/- as confirmed by the learned District Judge, Thodupuzha in A.S.No.83 of 2006.

(2.) RESPONDENTS claimed that the plaint A schedule belongs to them as per Ext.A1, patta No.8167 of 1977, the plaint B schedule building belongs to the 2nd respondent as per Ext.A2, patta No.13044 of 1993 and the plaint C schedule belongs to the sister of the respondents as per Ext.A3, patta No.10056 of 1983, all issued by the Special Tahsildar (LA), Devikulam. Respondents claimed that they are in possession of plaint A and B schedules and are managing the plaint C schedule on behalf of their sister. They produced Exts.A4 to A6 to show payment of revenue for the said property and Ext.A7, proceedings of the District Collector, Idukki concerning the plaint A to C schedules. It is the case of the respondents that there is a road on the northern side of the suit property upto the eastern boundary of the plaint C schedule. That road has a width of 20 feet towards the north-western corner of the plaint A schedule. That road narrows down in width later. On the east of the plaint C schedule and about a kilometre away therefrom, the appellants have some property. They trespassed into the suit property and opened a new road destroying the crops and causing damages to the tune of around Rs.50,000/-. Hence the suit for prohibitory injunction and recovery of damages.

(3.) THE learned counsel contends that apart from Ext.B1, proceeding of the Sub Divisional Magistrate produced in the trial court, appellant had produced in appeal along with an application under Order XLI, Rule 27 of the Code of Civil Procedure (for short, "the Code") a copy of the report submitted by the Village Officer based on which Ext.B1, proceeding was initiated. It is pointed out that it is without reference to the said report that the first appellate court has disposed of the appeal confirming the judgment and decree of trial court. According to the learned counsel, the courts below have not properly considered Ext.B1, proceeding of the Sub Divisional Magistrate.