Kerala High Court
Jayasree vs Santhakumari on 11 April, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 11TH DAY OF APRIL 2012/22ND CHAITHRA 1934
RSA.NO. 499 OF 2012 (A)
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AS.222/2010 OF IST ADDITIONAL DISTRICT COURT, KOLLAM
OS.397/2007 OF PRINCIPAL MUNSIFF'S COURT, KOLLAM
APPELLANT(S)/APPELLANTS/DEFENDANTS 3 AND 4:
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1. JAYASREE, AGED 48 YEARS
D/O.SAROJINI, KALLUVILAVEEDU, NJARAKKAL CHERY
THIKKARUVA VILLAGE, KOLLAM.
2. VIJAYAKUMARI , AGED 44 YEARS
D/O. SAROJINI, KALLUVILAVEEDU, NJARAKKAL CHERY
THIKKARUVA VILLAGE, KOLLAM.
BY ADV. SRI.K.S.MANU (PUNUKKONNOOR)
RESPONDENT(S)/RESPONDENTS/PLAINTIFF/DEFENDANTS 1 & 2 :
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1. SANTHAKUMARI
D/O. PARUKUTTY, KALLUVILA PUTHEN VEEDU, VATTAPARAMBU
NJARAKKAL CHERY, THIKKARUVA VILLAGE, KOLLAM.
2. BABU, S/O. KUNJU PILLAI,
OF -DO-
3. GIRI,
S/O. SREEDHARAN, THARAMEL VEEDU, THEKKECHERRY
THIKKARUVA VILLAGE, KOLLAM - 685 011.
BY ADV. SRI.K.SUBASH CHANDRA BOSE
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 11-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A. No.499 of 2012
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Dated this the 11th day of April, 2012
J U D G M E N T
Heard. Admit.
2. The following substantial question of law is framed for a decision:
"Whether courts below are justified in granting a decree for injunction against appellants-defendants
3 and 4".
3. First respondent-plaintiff appears through counsel. Respondents 2 and 3/defendants 1 and 2 remained ex parte in the trial and first appellate courts, nor did they challenge judgment and decree of the trial court. Challenge was only by the appellants. Hence notice to respondents 2 and 3 is dispensed with.
4. In the nature of substantial question of law framed for a decision it is agreed by counsel on both sides that the Second Appeal could be disposed of on the strength of copy of records submitted by the learned counsel for appellants and that it is not R.S.A. No.499 of 2012 -: 2 :- necessary to call for records.
5. First respondent filed O.S. No.397 of 2007 in the court of learned Principal Munsiff, Kollam for a decree for fixation of boundary and prohibitory injunction concerning the suit property, described as 5 cents. First respondent claimed that of the said 5 cents, she acquired title and possession of 3 cents as per Ext.A1, assignment deed No.1321 of 1986 executed by Surendran, her deceased husband. The remaining two cents which belonged to Surendran was inherited by her and her son on Surendran dying intestate. Property on the west of the suit property belonged to the second respondent-first defendant. Property on the south belonged to the appellants. First respondent alleged that appellants and respondents 2 and 3 attempted to trespass into the suit property and further, that second respondent removed the boundary on the north-western side of the suit property at a length of 1.5 metres. That necessitated the suit.
6. Appellants contended that there is no legal marriage between the first respondent and Surendran and that appellants are the children of the said Surendran. They also contended that Surendran has two more children who are necessary parties to the suit. Further contention raised by the appellants is that first R.S.A. No.499 of 2012 -: 3 :- respondent trespassed into the suit property and created Ext.A1, document.
7. Trial court found that under Ext.A1, assignment deed, first respondent acquired title and possession of three cents and that rest of the suit property was inherited by her and her son consequent to Surendran dying intestate. Trial court referring to Ext.A1 where Surendran himself has described the first respondent as his wife found that first respondent is the wife of the said Surendran. Based on Exts.C1 and C2, trial court fixed the western boundary of suit property and granted a decree for injunction as well. That judgment and decree were confirmed by the first appellate court.
8. Learned counsel for appellants contended that appellants have a right of access through the western side of the suit property, starting from the PWD road on northern side. It is further contended that the said pathway has a width of two metres and is about 30 years old.
9. So far as that contention is concerned, trial court negatived it for the reason that there is no proper plea in the written statement and that no sufficient evidence was let in. Appellants filed application for amendment of the written R.S.A. No.499 of 2012 -: 4 :- statement (when the case came up in the list for trial). That application did not find favour with the learned Munsiff. Learned Munsiff observed that even Exts.C1 and C2 did not refer to any such way and negatived that contention. So far as that contention is concerned, no substantial question of law is involved since the trial and first appellate courts negatived the plea on the materials on record.
10. So far as the three cents covered by Ext.A1 is concerned, in Exts.C1 and C2 it is reported that Ext.A1 concerns the three cents comprised in old Sy. No.2535/B (R.S. No.524/8-2). The remaining portion of the suit property - 1.5 cents is found to be comprised in R.S. No.524/8. It is with respect to the said 1.5 cents that first respondent claimed title and possession for herself and son by inheritance consequent to the death of Surendran, intestate.
11. So far as the property covered by Ext.A1 is concerned, its due execution is proved as rightly found in favour of first respondent by the courts below. Hence first respondent has title and possession of the three cents as per Ext.A1 and referred to in Exts.C1 and C2 comprised in old Sy. No.2535/B (R.S. No.524/8-2). Appellants cannot have any claim over the said R.S.A. No.499 of 2012 -: 5 :- three cents.
12. So far as the 1.5 cents in R.S. No.524/8 over which first respondent claims that herself and her son acquired right by inheritance is concerned, I am inclined to think that the contention raised by the appellants has to succeed. For, it is seen from the deposition of P.W.1 (a copy of which is given to me by the learned counsel for perusal) that first respondent has admitted that appellants are the children of the late Surendran. Admittedly, Surendran died intestate so far as the said 1.5 cents in R.S.No.524/8 is concerned. If that be, so the said 1.5 cents devolves on all the legal heirs of the said Surendran including first respondent, her son and the appellants.
13. Learned counsel for appellants though contended that even as per the version of first respondent, property acquired by her and son by inheritance consequent to the death of Surendran is two cents and hence appellants should have co-ownership right over the said two cents. I am unable to accept contention since what would be available for inheritance consequent to the death of Surendran intestate is only the property available after Ext.A1 (i.e., the property excluding three cents covered by Ext.A1) which the Advocate Commissioner and Surveyor have R.S.A. No.499 of 2012 -: 6 :- identified as 1.5 cents in R.S. No.524/8.
14. If that be so, appellants being co-owners of the said 1.5 cents comprised in R.S. No.524/8, there could be no decree for prohibitory injunction against their entering the said 1.5 cents. To the above extent judgment and decree of the trial court required to be modified. But that does not mean that the western boundary of the entire property cannot be fixed. That part of the decree of the courts below do not call for interference.
15. Learned counsel for first respondent contended that so far as the three cents covered by Ext.A1 is concerned, that being the absolute property of first respondent she is entitled to have its exclusive possession and enjoyment. In the light of what I have stated above, that claim of first respondent has to be upheld.
16. It is revealed from the submission of learned counsel on both sides that property excluding the three cents covered by Ext.A1 and which has devolved on the legal heirs of Surendran consequent to his death is situated on the north of property covered by Ext.A1. It is open to the first respondent to have a boundary fixed in between the property covered by Ext.A1 and rest of the property which belonged to Surendran and which R.S.A. No.499 of 2012 -: 7 :- devolved on all his legal heirs including the first respondent, her son and the appellants. Since no such boundary in between the three cents covered by Ext.A1 and property which devolved on the legal heirs consequent to the death of Surendran is fixed by the trial court, I make it clear that it will be open to the executing court to fix that boundary if so requested by the first respondent or the appellants as the case may be. I also make it clear that by the above direction this Court has not interfered with the boundary on the western side of the entire suit property fixed by the trial court as per Exts.C1 and C2.
17. Substantial question of law framed is answered as above.
Second Appeal is allowed in part and Judgment and decree of learned First Additional District Judge, Kollam in A.S. No.222 of 2010 and of learned Principal Munsiff, Kollam in O.S. No.397 of 2007 are modified to the following extent:
(i) It is made clear that it will be open to the appellants or first respondent as the case may be, to request the executing court to fix the boundary in between the three cents covered by Ext.A1 and the 1.5 cents in R.S. No.524/8 which devolved on the R.S.A. No.499 of 2012 -: 8 :- legal heirs of deceased Surendran including first respondent, her son and the appellants.
(ii) It is made clear that the above direction does not in any way affect the western boundary of the suit property fixed by the trial court and confirmed by the first appellate court based on Exts.C1 and C2.
(iii) The decree for prohibitory injunction granted by the trial court and confirmed by the first appellate court against the appellants to the extent it concerned, the 1.5 cents comprised in R.S. No.524/8 and which devolved on the legal heirs of Surendran including the appellants, first respondent and her son will stand vacated.
(iv) In all other respects, judgment and decree of the courts below will stand confirmed.
(v) Parties to the appeal shall bear their
costs in this appeal.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
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