Kerala High Court
Vinod Sam vs Sri.Govind Padmanabhan
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 22ND DAY OF MARCH 2017/1ST CHAITHRA, 1939
RSA.No. 1218 of 2014 ()
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AGAINST THE JUDGMENT IN RFA 185/2003 of SUBORDINATE JUDGE'S
COURT, KOTTARAKKARA
AGAINST THE JUDGMENT IN OS 3/2000 of MUNSIFF'S COURT, PUNALUR
APPELLANT/2ND APPELLANT/2ND DEFENDANT:
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VINOD SAM,
AGED 41 YEARS, S/O.SAMUEL, KUNNUMPALLIL VEEDU,
KIZHAKKE MURI, PUNNALA VILLAGE,
PATHANAPURAM TALUK, KOLLAM DISTRICT.
BY ADVS.SRI.G.P.SHINOD
SRI.RAM MOHAN.G.
SRI.MANU V.
SRI.GOVIND PADMANABHAN
SRI.AJIT G.ANJARLEKAR
RESPONDENTS/RESPONDENTS AND 1ST APPELLANT/PLAINTIFF AND
DEFENDANT NOS.1, 3 AND 4:
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1. SUSAMMA,
D/O.MARIYAMMA, KUTTIYIL VEEDU, KIZHAKKE MURI,
PUNNALA VILLAGE, PATHANAPURAM TALUK,
KOLLAM DISTRICT, REPRESENTED BY HER BROTHER AND
GUARDIAN P.JOHN, S/O.PHILIP,
KARIPUZHA PADINJATTETHIL VEEDU,
KARAVALOOR MURI, KARAVALOOR VILLAGE,
PATHANAPURAM TALUK, KOLLAM DISTRICT-689 695.
* 2. JOHN,
S/O.YOHANNAN, KUTTIYIL VEEDU, KIZHAKKE MURI,
PUNNALA VILLAGE, PATHANAPURAM TALUK,
KOLLAM DISTRICT-689 695. (DELETED)
3. K.JOSEPH
S/O.KUNJACHAN, KUTTIYIL VEEDU, KIZHAKKE MURI,
PUNNALA VILLAGE, PATHANAPURAM TALUK,
KOLLAM DISTRICT-689 695.
RSA.No. 1218 of 2014 ()
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4. SAMUEL,
KUNNUMPALLIL VEEDU, KIZHAKKE MURI,
PUNNALA VILLAGE, PATHANAPURAM TALUK,
KOLLAM DISTRICT-689 695.
* THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT
THE RISK OF THE APPELLANT AS PER THE ORDER DATED
10.03.2015 IN I.A.NO.593/15.
R1 & R3 BY ADVS. SRI.P.C.GEORGEKUTTY
SMT.LIJI KUTTAPPAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 22-03-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
DSV/28/3/17
B. KEMAL PASHA, J
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R.S.A.No.1218 of 2014
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Dated this the 22nd day of March, 2017
J U D G M E N T
Challenging the concurrent findings entered by the Munsiff's Court, Punalur, in O.S.No.3 of 2000, followed by those of the Subordinate Judge's Court, Kottarakkara in R.F.A.No.185 of 2003, the 2nd defendant in the suit has come up with this second appeal.
2. The suit is one for perpetual injunction restraining defendants 1 to 3 from committing trespass into the plaint schedule property and from destroying its boundaries and from widening the western pathway by encroaching into the portions of the plaint schedule property and from restraining the 4th defendant from surrendering any portions of the R.S.A.No.1218 of 2014 : 2 : plaint schedule property to defendants 1 to 3 for widening the said pathway.
3. The suit was filed by the plaintiff through her elder brother as next friend. According to the next friend, who filed the suit, the plaintiff is suffering from mental illness and has been undergoing treatment at Jayabharatham Mental Health Centre, Punalur. The husband of the plaintiff is the 4th defendant. It is the case of the plaintiff that the plaint schedule property having an extent of 25 cents was purchased by making use of the funds provided from her family and the same was purchased in the joint names of the plaintiff and the 4th defendant. The 4th defendant is only a name lender to the document, and the funds belong to the plaintiff.
4. There are two Panchayat roads passing through the northern as well as western side of the plaint schedule property. There is a pathway having R.S.A.No.1218 of 2014 : 3 : 2 feet width lying through the western side of the plaint schedule property, which connects the northern and the southern Panchayat roads. The 2nd defendant is the son of the 1st defendant. The property lying on the western side of the above said 2 feet width pathway belongs to the 1st defendant towards the northern portion and the remaining property lying on the southern side belongs to the 3rd defendant. The said pathway is lying at a lower level of 3 to 5 feet from the plaint schedule property and the properties situated at its western side.
5. There was an attempt from the part of the 2nd defendant to widen the pathway by destroying the western boundary of the plaint schedule property. When the husband of the plaintiff, who is the 4th defendant obstructed such act, he was beaten up by the 2nd defendant and consequently, there occurred a Police case. The 4th defendant was caught by the Police, and was beaten up and further, he was R.S.A.No.1218 of 2014 : 4 : made to sign on some document expressing his willingness to surrender one cent of property from the plaint schedule property for `5,000/- for widening the said pathway. The matter was not made known to the plaintiff. When there was an attempt from the part of the Police to separate the said one cent of property, the illness of the plaintiff aggravated. The matter was made known to the next friend and consequently, he came to the spot and thereafter, he filed the suit for and on behalf of the plaintiff, as next friend.
6. Defendants 1 and 2 contended that there is a pathway having a width of 5 feet lying through the western side of the plaint schedule property and the said pathway is a public pathway. Apart from clearing the bushes, which were there on the said pathway having a width of 5 feet, there was no attempt from the part of defendants 1 and 2 to widen the said pathway. It is also contended that R.S.A.No.1218 of 2014 : 5 : the next friend has no locus standi to file the suit for and on behalf of the plaintiff, and the plaintiff is not a mentally ill person.
7. The 3rd defendant has filed a written statement almost supporting the case of the plaintiff. The 4th defendant has filed a separate written statement supporting the case of the plaintiff and contending that he was apprehended by the Police at the instigation and at the instance of defendants 1 and 2, he was beaten up, and he was forced to sign some papers expressing his willingness to surrender one cent of property for `5,000/-.
8. On the side of the plaintiff, PW1 to PW4 were examined, and Exhibits A1 to A3 were marked. Exhibits C1 to C9 were also marked. On the side of the defendants, DW1 to DW3 were examined, and Exhibits B1 to B3 were marked. The trial court decreed the suit in terms of the plaint, and further allowed I.A.No.361 of 2000 to the extent of allowing R.S.A.No.1218 of 2014 : 6 : the plaintiff to restore the status quo ante of the plaint schedule property at the expense of defendants 1 and 2. The plaintiff was also allowed to release the entire costs of the suit from defendants 1 and 2.
9. Aggrieved by the judgment and decree of the trial court, the defendants filed R.F.A.No.185 of 2003 before the Subordinate Judge's Court, Kottarakkara. The lower appellate court concurred with the findings entered by the trial court, and dismissed the appeal with costs, and hence this second appeal.
10. This second appeal has been admitted by this Court on the following substantial questions of law:
"1. Whether the appellate court was right in dismissing the appeal for the sole reason that the appellant's advocate submitted that he had nothing to argue?
2. Whether the lower court was justified in permitting the next friend R.S.A.No.1218 of 2014 : 7 : to proceed with the suit?
3. Whether the finding of the trial court is based on evidence?"
11. Heard the learned counsel for the appellant and the learned counsel for the 1st respondent/plaintiff.
12. The learned counsel for the appellant has argued that the next friend of the plaintiff had no locus standi to file the suit, and the trial court had failed to adjudge the plaintiff as a person of unsound mind within the meaning of Order XXXII Rule 15 CPC. It has also been argued that apart from producing Exhibit-A1, which is allegedly an OP ticket issued from the Jayabharatham Mental Health Centre, no other evidence was adduced to prove that the plaintiff was suffering from any sort of mental illness. It has also been argued that the trial court has not entered a finding regarding the actual width of the pathway. It has been further argued that the 1st defendant was seriously laid up and therefore, he R.S.A.No.1218 of 2014 : 8 : could not give necessary instructions to his counsel appearing in the appeal before the lower appellate court and consequently, the Advocate engaged by the appellants before the lower appellate court had made some concessions before the lower appellate court, which resulted in the dismissal of the appeal.
13. Per contra, the learned counsel for the 1st respondent/plaintiff has argued that the plaintiff is a mentally ill person and she was properly represented by the next friend. It is also pointed out that the next friend had filed third party affidavit within the meaning of Rule 212 of the Kerala Civil Rules of Practice at the time when the suit was filed. It has also been argued that the 2nd defendant, who is the present appellant, had committed trespass into the portions of of the plaint schedule property during the pendency of the suit, even when an order of temporary injunction against him was in force. By violating the said order, he had committed serious R.S.A.No.1218 of 2014 : 9 : waste in the portions of the plaint schedule property and converted some portions of the plaint schedule property as pathway, by destroying its western boundary.
14. This Court has been taken through the pleadings of the parties and the evidence and, also the judgments rendered by the trial court and the first appellate court. The first appellate court, in its judgment has clearly mentioned that when the said appeal was taken for hearing, the counsel for the appellants before the lower appellate court submitted that the appellants were "only aggrieved by the order of the lower court awarding costs of the suit to the plaintiff."
15. The lower appellate court has further stated that the learned counsel for the appellants before the lower appellate court did not advance any argument regarding any of the grounds mentioned in the appeal memorandum. Even then, it seems that R.S.A.No.1218 of 2014 : 10 : the lower appellate court had gone through the evidence adduced before the trial court and also the documents produced in the suit.
16. Even though the learned counsel for the appellant has argued that the learned counsel for the appellants before the lower appellate court ought not to have made such concessions, and further that a concession on questions of law ought not to have been taken as granted by the lower appellate court, it seems that the submissions were not those of concessions of law; whereas those were relating to the facts found by the trial court. In the plaint, it has been specifically pleaded that the plaintiff is of an unsound minded person and was suffering from mental illness, and has been undergoing treatment at the Jayabharatham Mental Health Centre, Punalur.
17. The 4th defendant, who is the husband of the plaintiff, has admitted the said plea and contended in the written statement that the plaintiff R.S.A.No.1218 of 2014 : 11 : has been undergoing treatment for mental illness. PW1, who is the next friend, has clearly deposed regarding the said mental illness of the plaintiff. Of course, he has deposed that she is not always mentally ill, whereas she has been suffering from intermittent mental illness. Evidently, that may be a case of Schizophrenia and during lucid intervals, it may not appear that she has any mental illness at all.
18. According to PW1, when there were attempts from the part of the Police and defendants 1 and 2 to commit trespass into the property, her condition became worse and she suffered utter mental illness, which necessitated his interference in the matter. There is absolutely nothing to show that the trial court had not conducted an adjudication on the question of such incapacity on the part of the plaintiff, which necessitated the intervention of the next friend at the time of the filing of the suit. R.S.A.No.1218 of 2014 : 12 :
19. It is true that the appellant along with the 1st defendant had pleaded in the appeal memorandum filed before the lower appellate court that the next friend had no locus standi to file the suit and further that the plaintiff is not a person of unsound mind and also that she was not suffering from any mental illness. At the same time, it seems that the said aspects were given a go by, by the learned counsel for the appellants before the lower appellate court. When such facts were not disputed, before the lower appellate court, it should be taken as clear admissions of such facts from the part of the appellants. When such facts were admitted, the appellant cannot at present hang upon such technicalities by resorting to an argument that there was no adjudication under Section Order XXXII Rule 15 CPC. Had it been so, the same ought to have been pressed before the lower appellate court.
20. Regarding the width of the pathway, R.S.A.No.1218 of 2014 : 13 : according to the plaintiff, the width of the pathway was only 2 feet. The total extent of the plaint schedule property is 25 cents. The learned counsel for the appellant has pointed out that the Commissioner, who visited the property at first, had recorded the width of the then existing pathway as one varying from 75 cms to 84 cms. At the same time, there was no proper measurement through a survey at that time. Later, the very same Commissioner visited the property with the aid of a Surveyor and measured out the property through a proper survey. The Surveyor has clearly recorded the then existing pathway as one in green shade as Plot No.1 having a width of 2 feet, in Exhibit-C2 plan. In Exhibit-C2, the Surveyor, who was the Joint Commissioner, has clearly shown Plot No.2 in yellow shade as the portion attempted to be encroached upon for widening the pathway, having an extent of 1 cent and 547 square links. Plot No.3 is shown as R.S.A.No.1218 of 2014 : 14 : the remaining plaint schedule property, having an extent of 22.727 cents. Evidently, Plot No.2 in yellow shade portion also takes in the plaint schedule property. Even when Plot No.3 and Plot No.2 is added together, the total extent comes only to 24 cents and 274 square links, which is less than the actual extent of the plaint schedule property purchased by the plaintiff.
21. Regarding the evidence of the width of the pathway, it has to be noted that defendants 1 and 2 have contended in their written statement that the width was only 5 feet. It has clearly come out that there was a subsequent trespass into the portions of the plaint schedule property to widen the said pathway. The 2nd defendant when examined as DW1 has claimed the width of the pathway as 10 feet. DW2 has stated the width of the pathway as 5= feet width. The first Commissioner, who visited the property without the aid of the Surveyor, has stated R.S.A.No.1218 of 2014 : 15 : the width as one varying from 75 cms to 84 cms. At the same time, the Surveyor, who has assisted the Commissioner and prepared Exhibit-C2 has clearly plotted out Plot No.1 as the earlier pathway, having a width of 2 feet. The evidence of DW1 cannot be relied on. At the same time, it is made clear that Exhibit-C2 shall be appended with the decree passed by the trial court and it should form part of the decree.
22. On going through the facts and circumstances of this case and the evidence, this Court is satisfied that there is absolutely nothing to interfere with the concurrent findings entered by both the courts below and therefore, the impugned judgment and decree do not call for any interference at all. This second appeal is devoid of merits, and is only to be dismissed, and I do so.
In the result, this second appeal is dismissed. It is made clear that Exhibit-C2 shall be appended with R.S.A.No.1218 of 2014 : 16 : the decree, and it forms the part of the decree. Parties shall be governed by the decree to which Exhibit-C2 is appended with. In the nature of this second appeal, there is no order as to costs.
Sd/-
B. KEMAL PASHA JUDGE DSV/24/3/17 // True Copy // P.A. To Judge