Kerala High Court
Johnson vs Annie on 21 August, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 22ND DAY OF AUGUST 2014/ 31ST SRAVANA, 1936
RSA.No. 173 of 2012 ()
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AS 141/2007 of PRL.SUB COURT, IRINJALAKUDA
OS 90/2004 of MUNSIFF COURT, CHALAKUDY
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APPELLANT(S)/APPELLANTS/DEFENDANTS :-
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1. JOHNSON, AGED 40 YEARS, S/O. PARAKKA NJARALELI POULOSE
MELADOOR DESOM, ALATHUR VILLAGE, MUKUNDAPURAM TALUK
THRISSUR DISTRICT.
2. BEENA, AGED 34 YEARS, W/O. JOHNSON,
PARAKKA NJARALELI HOUSE
MELADOOR DESOM, ALATHUR VILLAGE, MUKUNDAPURAM TALUK
THRISSUR DISTRICT.
BY ADVS.SRI.RENJITH THAMPAN (SR.)
SRI.V.M.KRISHNAKUMAR
RESPONDENT(S)/RESPONDENTS/PLAINTIFFS :-
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1. ANNIE, AGED 48 YEARS, D/O. PARAKKA NJARALELI POULOSE,
MELADOOR DESOM, ALATHOOR VILLAGE, MUKUNDAPURAM TALUK
THRISSUR DISTRICT - 680 741 & W/O. THYPARAMBIL TOMY
2. JOLLY, AGED 46 YEARS, D/O. PARAKKA NJARALELI POULOSE
MELADOOR DESOM, ALATHOOR VILLAGE, MUKUNDAPURAM TALUK
THRISSUR DISTRICT - 680 741 & W/O. KOOTTALA BENNY
3. ELSY, AGED 44 YEARS, D/O.PARAKKA NJARALELI POULOSE
MELADOOR DESOM, ALATHOOR VILLAGE, MUKUNDAPURAM TALUK
THRISSUR DISTRICT - 680 741 & W/O.CHAKYETH OUSEPH
4. BABY, AGED 43 YEARS, PARAKKA NJARALELI POULOSE
MELADOOR DESOM, ALATHOOR VILLAGE, MUKUNDAPURAM TALUK
THRISSUR DISTRICT - 680 741 & W/O.NJEZHUVUNGAL OUSEPACHAN.
R1 - R4 BY ADV. SMT.M.CHANDRALEKHA
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 22-08-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
P.BHAVADASAN, J.
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R.S.A. No.173 of 2012
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Dated this the 21st day of August 2014
J U D G M E N T
The defendants, who suffered a decree at the hands of the trial court, which was confirmed in appeal are the appellants.
2. The facts necessary for the disposal of this appeal are as follows :-
The property involved in the suit originally belonged to the father of the plaintiffs and the first defendant. It is not in dispute that the father initially had settled 5 cents of property out of 37= cents, which was on the north-eastern side of the property owned by him. Later on, 7 = cents was assigned and settled in favour of the first plaintiff. The allegation of the first plaintiff was that the defendants are trying to trespass into the property obtained by her as per Ext.A1 dated 17.10.2001. She also apprehends that the defendants would demolish the fence situated on the northern side of the property and mattom on the R.S.A. No.173 of 2012 -: 2 :- south west of the property held by her. On the basis of these allegations, she laid a suit for fixation of boundary of her property and for injunction.
3. The defendants resisted the suit. It was pointed out by the first defendant that 5 cents of property sold by the father was settled in favour of the first defendant and that property has boundaries on all the four sides and it is situated well separated from the rest of the properties owned by the father of the first defendant and plaintiffs. It is contended that, out of the 5 cents so assigned as per Ext.B1 dated 19.12.1995, the defendants have no claim at all. The allegation of trespass was denied and it was in fact contended that it was the first plaintiff herein who created trouble and the defendants have sought police aid to resist the assault by the plaintiffs. On the basis of these contentions, he prayed for a dismissal of the suit.
4. On the above pleadings, issues were raised. The evidence consists of testimony of PW1 and the documents marked as Exts.A1 to A3 from the side of the plaintiffs. From the side of the defendants DWs.1 and 2 were examined and R.S.A. No.173 of 2012 -: 3 :- documents Exts.B1 to B4 were marked. Exts.C1, C1(a) and C2 are the commissioner's report and plan. The trial court mainly based on the fact that since the first defendant had asserted that he had received only 5 cents of property as per Ext.B1 document, it will only be appropriate to accept Sketch No.1 appended to the commissioner's report and guided by the said sketch, a decree was granted in terms thereon enabling the plaintiff thereto to put up permanent boundary through the line accepted by the trial court. In appeal, the lower appellate court confirmed the decree and judgment of the trial court.
5. In this appeal, the following substantial questions of law are framed for consideration :-
(i) Whether the court below justified in decreeing the suit for boundary fixation without framing issues in proper manner ?
(ii) Whether the judgments and decree of the courts below vitiated for not appreciating the evidence of the appellant both oral and documentary evidence available in this case ?
(iii)Whether the court below justified in allowing suit for injunction from trespassing to plaint schedule property while there is no evidence to prove the trespass ?
6. Sri.Ranjith Thampan, the learned Senior Counsel appearing for the appellants contended that both the courts R.S.A. No.173 of 2012 -: 4 :- below have omitted to consider the real issue involved in the case and wrongly appreciated the evidence adduced by the defendants. It is contended by the learned Senior Counsel that even going by the documents available in the case it is clear that the property obtained by the first defendant as per Ext.B1 in the year 1995 was fenced and separated and thereafter was lying separately from the property owned by the father of the plaintiffs and the first defendant. The learned Senior Counsel further points out that later that property was sold to one Martin from whom in the year 2005, the first defendant re-purchased the property. According to the learned Senior Counsel, the property so purchased by the first defendant have access to the public road on the east and two concrete posts were erected on the southern side. The learned Senior Counsel went on to point out that the sketch produced by the commissioner which was adopted for the purpose to lay boundary solely on the ground that the extent shown of the property obtained by the first defendant as per Ext.B1 is 5< cents in the other sketch. Both the courts below took the view that since the first defendant had no R.S.A. No.173 of 2012 -: 5 :- case that he had obtained more than 5 cents of property under Ext.B1, that sketch could not be accepted.
7. Learned Senior Counsel then went on to point out that in the commissioner's report, it is clearly mentioned that there were two pillars seen erected, which according to the learned counsel, would indicate the fact that 5 cents of property was lying separately from the rest of the property owned by the father of the first defendant and plaintiffs. The mere fact that the extent of the property seen within the pillars is little over the 5 cents by itself is not a ground to reject the claim put forward by the first defendant. Learned Senior Counsel went on to point out that even if sketch No.2 is accepted, the plaintiffs have no grievance in the sense that still they would have 7= cents of property obtained by them as per Ext.A1 document. If that be so, there is no justification in rejecting that sketch No.2 and adopting sketch No.1 whereby, the first defendant has lost a portion of his property. Learned Senior Counsel went on to point out that these crucial aspects have been omitted to be noticed by the courts below while passing the judgment and decree. R.S.A. No.173 of 2012 -: 6 :-
8. Smt.M.Chandralekha, the learned counsel appearing for the respondents on the other hand contended that both the courts below have appreciated the evidence in detail and have come to identical conclusions that it is more appropriate to adopt sketch No.1 appended to the commissioner's report in order to grant relief to the plaintiffs. Referring to the evidence of the first defendant, who was examined as DW1, the learned counsel went on to contend that the first defendant had no case that he had obtained more than 5 cents of property as per Ext.B1 document. Therefore, sketch No.2, which would show that the portion of the property obtained by the first defendant under Ext.B1 having an extent of 5< cents could not have been accepted by the courts below. Learned counsel again went on to point out that both the courts below have found that there are no boundaries separating the property of the first plaintiff from that of the first defendant. It was under these circumstances, sketch No.1 was adopted and decree and judgment was passed by the courts below. According to the learned counsel, there is no question of law let alone substantial question of law arises for R.S.A. No.173 of 2012 -: 7 :- consideration in this second appeal.
9. The reasons given by the court below to adopt sketch No.1 appended to the commissioner's report is far from satisfactory. Admittedly, the father of the first defendant and plaintiffs owned 37= cents of property. In 1995, by virtue of Ext.B1 document dated 19.12.1995, he gifted 5 cents on the north-eastern portion of his property to the first defendant. This document is not under challenge. The first defendant has a case that at the time when the gift was made, the 5 cents of property was measured and demarcated from the rest of the property. Going by the records, the property covered by Ext.B1 document was admittedly sold by the first defendant to one Martin from whom, the first defendant had re-purchased the same as per Ext.B4 dated 15.3.2005.
10. The first plaintiff had obtained property under Ext.A1 document dated 17.10.2001. Admittedly Ext.A1 covers only 7= cents. It was complaining of attempted trespass on the part of the first defendant and threatening that he would take forcible possession, she had filed the suit.
R.S.A. No.173 of 2012 -: 8 :-
11. The question that arises for consideration is whether the courts below were justified in accepting sketch No.1 appended to the commissioner's report. The only reason given by the courts below is that, if sketch No.2 is adopted, the first defendant would get 5.25 cents instead of 5 cents, which alone he claimed as per Ext.B1 document. Of course, the trial court also given a reason that if sketch No.2 is adopted the plot available to the plaintiff would have an irregular shape.
12. The question is not whether by adopting one of the sketches, the claim of the first defendant can be limited to 5 cents. The first defendant has a case that, he had re-purchased 5 cents from Martin to have access to 'C' plot shown in the sketch, which he claims to have acquired from the person to whom it was sold by his father. There is a way laid through portion of 5 cents of property is not in dispute. Even though the learned counsel for the respondents attempted to show that after the settlement of 5 cents of property in favour of the first defendant, the members of the family were using the pathway now seen by the commissioner through the 5 cents cannot be R.S.A. No.173 of 2012 -: 9 :- true for the reason that even after separating the 5 cents of property, the rest of the property owned by the father had direct access to the road on the east. It is significant to notice that, on either side of the property, that is on the eastern side and on the southern side of the property obtained by the first plaintiff as per Ext.A1 document, the property directly access to road. The northern boundary is shown as "'D_W D_x_:ngVW" IyOm".
13. If one has to accept sketch No.1 produced by the commissioner, then the northern boundary made mention in Ext.A1 will not tally with the plan produced by the commissioner. As to how the commissioner was able to locate the property of plaintiffs is not discernible from the commissioner's report and plan. In both the cases, side measurements are also shown. It was admitted by both sides that in none of the documents produced by the parties side measurements are shown. It is also not possible to understand as to how 7= cents available to the first plaintiff as per Ext.A1 was located in the manner could be seen from sketch No.1. Strictly speaking going by the boundaries to Ext.A1, sketch No.2 would look more appropriate. R.S.A. No.173 of 2012 -: 10 :- As has rightly pointed out by the learned counsel for the respondents it becomes an irregular shaped plot.
14. It is not the case of the plaintiffs that by adopting sketch No.2, which would show that the extent of the property obtained by the first defendant as per Ext.B1 would be 5.25 cents instead of 5 cents and that the extent of the property obtained by the first plaintiff under Ext.A1 is reduced. On going through the commissioner's report, it is seen that even if either of the sketch is adopted, the plaintiffs will have the same extent of the property obtained by them under Ext.A1.
15. The looser if sketch No.1 is adopted is the first defendant. It may be noticed here that the commissioner had seen two pillars on the southern extremity of the 5 cents of the property. The pathway made mention in the commissioner's report lies on the northern side of the two pillars. It is clear that the claim as put forward by the first defendant that he had purchased 5 cents from Martin to have access to his property to the road on the eastern side looks possible.
16. Even assuming that on identification of the property R.S.A. No.173 of 2012 -: 11 :- by virtue of documents and title deed, one of the parties may have excess land then what is contained in the document may not be a ground to decline relief to him.
17. On appreciation of the evidence, this Court is unable to agree with the courts below for accepting sketch No.1 appended to the commissioner's report to grant relief to the plaintiffs. At the same time, it seems difficult to accept the identification of the properties as per sketch No.2 also. The respondent can have grievance only in a case whereby adopting sketch No.2 the first defendant gets 5.25 cents whereby the extent of property acquired by him got reduced. There is no such case on hand. The judgment and decree are clearly unsustainable.
For the above reasons, this appeal is allowed. The impugned judgment and decree are set aside and the matter is remanded to the trial court with a direction to have the properties properly identified in terms of the document of title and other relevant documents which the parties may choose to produce. So also, it would be appropriate that service of a R.S.A. No.173 of 2012 -: 12 :- Surveyor is made available to the commissioner for proper measurement of the properties. The parties shall appear before the trial court on 23.9.2014. Both parties are at liberty to adduce further evidence and the trial court shall make every endeavour to dispose of the suit as expeditiously as possibile, at any rate, within a period of six months from the date of appearance of the parties.
Sd/-
P.BHAVADASAN, JUDGE.
//TRUE COPY// P.A. TO JUDGE Jvt