Kerala High Court
Unknown vs By Advs.Sri.S.Vinod Bhat on 21 February, 2013
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
THURSDAY, THE 21ST DAY OF FEBRUARY 2013/2ND PHALGUNA 1934
RSA.No. 147 of 2013 ()
----------------------
AS.120/2008 of ADDL.DISTRICT JUDGE (AD HOC)-II, KASARAGOD
OS.99/2004 of PRINCIPAL MUNSIFF, KASARAGOD
----------------
APPELLANT(S) (APPELLANT IN THE LOWER APPELLATE COURT AND
PLAINFIFF IN THE TRIAL COURT:
--------------------------------------------------------
C.T MOHAMMED MUSTHAFA, AGED 58 YEARS
S/O.C.T.MOIDEENKUNHI HAJI, RESIDING AT KAIVALAPPU
ANANGOOR, KASARAGOD TALUK, KASARAGOD P.O.
BY ADVS.SRI.S.VINOD BHAT
SRI.LEGITH T.KOTTAKKAL
RESPONDENT(S) (RESPONDENTS IN THE APPELLATE COURT AND DEFENDANTS
IN THE TRIAL COURT:
----------------------------------------------------------------
1. SUBRAYA BHAT @ SUBRAYA TANTRI, AGED 80 YEARS
MANAGING TRUSTEE, KUNTAR VISHNUMOORTHY TEMPLE
RESIDING NEAR VISHNUMOORTHY TEMPLE, ADHUR VILLAGE
KASARAGOD TALUK, KUNTAR P.O.671 543.
2. M. NARAYANA BHAT, AGED 60 YEARS
ADVOCATE, PRESIDENT,
THE KUNTAR VISHNUMOORTHY SEVA SANGHA
RESIDING AT SHRISHAILA, CHINAMAYA MISSION COLONY
VIDYANAGAR P.O., KASARAGOD, PIN-671 123.
3. RAVI THANTRI, AGED 45 YEARS
S/O.SUBRAYA BHAT @ SUBRAYA TANTRI
RESIDING NEAR VISHNUMOORTHY TEMPLE, ADHUR VILLAGE
KASARAGOD TALUK, KUNTAR P.O.671 543.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 21-02-2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
jvt
N.K.BALAKRISHNAN, J.
--------------------------------
R.S.A. No.147 of 2013
---------------------------------
Dated this the 21st day of February 2013
J U D G M E N T
The plaintiff is the appellant. His suit was for recovery of possession of A schedule property on the strength of his title and for a mandatory injunction to remove the pillars put up in that property and for a prohibitory injunction to restrain the defendants from further trespass. His suit was dismissed by the trial court. The appeal filed by him also met with the same fate.
2. According to the plaintiff, the plaint schedule property originally belonged to one Mohammad Haji. One Shankaranarayana Bhat was having 'chalageni' right which was obtained assignment by the plaintiff as per Ext.A1 and since then he has been in possession of that property. It was stated that the Jenm right over the said property was purchased by plaintiff's brother as per Ext.A2 on 30.7.1969. R.S.A. No.147 of 2013 -: 2 :- On the western side of A schedule property, there is a barbed wire fence. On the southern side of A schedule property, there is a fence and to the south of the fence, the property of Kuntar Vishnu Moorthi Temple is situated. It is contended that the defendants and their men started constructing an R.C.C. building in front of the temple trespassing into a portion of the plaintiff's property. The portion where the pillars were constructed is separately shown as B schedule property which, according to the plaintiff, is a portion of A schedule property. Hence, the plaintiff sought recovery of possession of that B schedule property and also for a mandatory injunction to remove the pillars.
3. The defendants resisted the suit disputing the title set up by the plaintiff. The allegation that the temple authorities constructed concrete pillars encroaching upon B schedule property is denied. It is contended that the defendants have not trespassed into any portion of plaint A R.S.A. No.147 of 2013 -: 3 :- schedule property. It is contended that the defendants are in possession of 1.50 Acres of land in R.S.No.212/6 situated on a higher level than the property in R.S.No.212/5. It is further stated that there had been a stone revetment and when it collapsed the defendants started to put up new revetment in its place. It is contended that the suit was filed when the defendants started construction of R.C.C. building in front of the temple. The allegation that the defendants trespassed into plaint schedule property was denied.
4. The plaintiff was examined as PW1 and Exts.A1 to A5 were marked. The Advocate Commissioner was examined as CW1. Ext.B1 and also commissioners reports and plan, Exts.C1 to C3 were marked. The learned Munsiff found that from the evidence on record and from the commissioner's report it is clear that the plaintiff's property is situated in a lower level than the property of the first defendant. The Advocate Commissioner also admitted that R.S.A. No.147 of 2013 -: 4 :- fact when examined before court.
5. Learned counsel for the appellant vehemently argues that the commissioner's report and plan would show that the plaint B schedule property lies to the north-east of the survey line demarcating 212/6 and 212/5; and the defendants do not contend that they have got any right over the property lying in Survey No.212/5. It is further argued that the B schedule property sought to be recovered, is having a length of 36 links lying immediate to the north-east of the line 221 (links) which separates the property comprised in R.S.No.212/5 from 212/6. It is argued that when specific plea has not been raised by the defendants that they have got right over the property comprised in Survey No.212/5, the plaintiff should have been granted a decree as prayed for. But the courts below found that commissioner's report and the evidence given by the Advocate Commissioner (CW1) shows that the plaintiff's property is lying in a lower level. The level difference is R.S.A. No.147 of 2013 -: 5 :- stated to be about 10 feet. Though the survey line happens to pass slightly towards the south, through the low lying area held by the plaintiff, there was no case for the plaintiff that the property purchased or held by him took in a portion of the land in the higher level. On going through the report, it is seen that the plaintiff's property is on the northern side whereas the defendants' property is lying to the south of the plaintiff's property. It is important to note that there was no case for the plaintiff that the property covered by Exts.A1 and A2 takes with in it any portion of the hilly/sloppy area. Going by the description it would appear that the plaintiff's property was on a lower level where plantations like areca, coco, vanila, coconut trees etc. were existing which itself differentiated the property held by the plaintiff from that of the defendants lying to its south. The level difference of the two plots itself made the two plots separate and definite indicating thereby that the two plots were not portions of the same or held by the same person. R.S.A. No.147 of 2013 -: 6 :- If as a matter of fact, any portion of the land in the higher level was part of the property purchased by the plaintiff, then certainly, a separate barbed wire fence or something of that sort would have been put up to demarcate the plaintiff's property. Admittedly, no fence was found by the Advocate Commissioner along the line '221-links'. On the other hand, a fence was seen lying to the north-east of the defendants' property. That would sufficiently indicate that the higher level land which extended up to the fence noted by the Commissioner in Ext.C3 plan was held by the defendants only. B schedule property of a length of 36 links is seen to be just touching the said boundary. The contention that two pillars P and P1 were fixed in the property of the plaintiff is found to be untenable in view of the fact that the property of the plaintiff is separated from that of the defendants by the level difference itself. The existence of the fence would support the case of the defendants that the plaintiff's property extended only upto R.S.A. No.147 of 2013 -: 7 :- fence. It would only indicate that the plaintiff was never in possession of any land lying to the south of the fence. In other words, the contention that the plaintiff has title to the property lying to the south of the fence is found to be unsustainable. The survey boundary line alone is not a decisive factor to determine the title of the property. The plaintiff had no case in the plaint that he had ever exercised act of possession over any bit of land situated on the higher level that is; on the land lying to the south of the property held by the plaintiff. The nature of the improvements, the existence of the level difference and also the existence of fence would scuttle the plea raised by the plaintiff that the plaintiff has got right over the small plot marked as 'C' (which is plaint B schedule property) so as to get recovery of possession or to get mandatory injunction for removal of the pillars. The courts below have rightly found that the small parcel of land measuring less than 1 cent shown as Plot C in Ext.C3 plan does not form part of the plaintiff's R.S.A. No.147 of 2013 -: 8 :- property. For the very same reason, the finding entered by the courts below that the two pillars - P and P1 are not situated within the plaintiff's property also does not require any interference. Since the plaintiff had no case that he has got right over any portion of the land situated in the higher level, his plea to the contrary cannot be sustained.
Hence, I find no reason to interfere with the concurrent finding of fact entered by the courts below. No substantial question of law is involved. Hence, this RSA is dismissed in limine.
N.K.BALAKRISHNAN, JUDGE.
Jvt