Kerala High Court
Kumaradas vs M.K.Sivam on 26 November, 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
MONDAY, THE 26TH DAY OF NOVEMBER 2012/5TH AGRAHAYANA 1934
RSA.NO. 896 OF 2011 ( )
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AS.276/2007 OF THIRD ADDITIONAL DISTRICT COURT, TRIVANDRUM
OS.1612/2003 OF THIRD ADDITIONAL MUNSIFF'S COURT, TRIVANDRUM
APPELLANT/APPELLANT/PLAINTIFF:
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KUMARADAS, S/O.PARAMESWARAN,
TC 29/1002(4), VASANTHALAYAM COMPOUND
KOZHIYODE LANE, PALKULANGARA, THIRUVANANTHAPURAM.
BY ADVS.SRI.V.SURESH
SRI.G.SUDHEER
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
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1. M.K.SIVAM, TC 29/1002 (3),
KOZHIYODE LANE, PALKULANGARA
THIRUVANANTHAPURAM-695001.
2. G.V.PRASANNAKUMAR, KEERTHI,
KONCHIRAVILA, THIRUVANANTHAPURAM.
Y ADV. SRI.K.S.HARIHARAPUTHRAN )
BY ADV. SRI.GEORGE MATHEW )R1
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
26-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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R.S.A. No.896 of 2011
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Dated this the 26th day of November, 2012
J U D G M E N T
Admit.
2. The 1st respondent appears through counsel. Since the 2nd respondent is the assignor of the 1st respondent and has no subsisting interest in the properties, notice to the 2nd respondent is not necessary and hence is dispensed with. Moreover, he was given notice on the application to condone the delay but there was no response.
3. The Second Appeal arises from the judgment and decree of the Third Additional Munsiff's Court, Thiruvananthapuram in O.S. No.1612 of 2003 dismissing the suit and granting decree on the counter claim raised by the 1st respondent, as confirmed by the Third Additional District Court, Thiruvananthapuram in A.S. No.276 of 2007.
4. The following substantial question of law is framed for a decision:
R.S.A. No.896 of 2011 -: 2 :-
"Whether without identifying the western boundary of the property of the 1st defendant, the decree on the counter claim could be legally sustainable?"
5. Since copy of the relevant documents necessary to decide the above question is given to me for perusal, it is not necessary to call for the entire documents.
6. The appellant-plaintiff claimed to be the owner in possession of the plaint A schedule property, described as 4.500 cents in Sy. No.943/A,B and claimed to have acquired it as the D schedule in partition deed No.3339 of 1986, a copy of which is marked as Ext.B1. On the north of the plaint A schedule is the Kozhiyode lane. The plaint A schedule is part of a total extent of 20.500 cents. The 1st respondent purchased the property on the north-east of the plaint A schedule from the 2nd respondent as per Ext.B3, assignment deed dated 02.06.2003 along with a building therein. The appellant claimed that access from the Kozhiyode lane to the plaint A schedule is through the plaint B schedule described as a pathway having width of 1.20 metres. He alleged that the 1st respondent attempted to trespass into the plaint B schedule. The appellant further claimed that as per Ext.A5, R.S.A. No.896 of 2011 -: 3 :- consent deed dated 05.04.1999, (unregistered) the 2nd respondent had granted him the right to use (apart from the 1.20 metres wide way) a space having width of 90 cms as well (from the property of the 2nd respondent later assigned to the 1st respondent). In the course of the suit, the plaint was amended incorporating a prayer for mandatory injunction to direct the 1st respondent remove the obstructions he allegedly caused to the plaint B schedule way.
7. The 1st respondent contended that there is no such pathway having width of 1.20 metres towards the west of the property covered by Ext.B3, assignment deed. He contended that the width of the way is only six links even as provided as per Ext.B1, partition deed (relied on by the appellant to prove his exclusive title and possession of the plaint A schedule). He denied the execution of Ext.A5, consent deed and claimed that it is concocted after Ext.B3, assignment deed. The 1st respondent raised a counter claim for a decree for prohibitory injunction to restrain the appellant causing obstruction to his putting up a boundary wall for his property. The 2nd respondent contended that he was made to sign Ext.A5, consent deed under coercion. He also claimed that he transferred the property to the 1st R.S.A. No.896 of 2011 -: 4 :- respondent after making the construction upto the 1.20 metres wide way provided as per Ext.B1, partition deed.
8. The trail court accepted the case of the 1st respondent and while dismissing the suit, granted a decree on the counter claim.
9. In appeal at the instance of the appellant, the first appellate court observed in paragraph 18 that the evidence of P.W1 and D.W.2 shows that Ext.A5, consent deed is not a bogus or fabricated document created after Ext.B3. On other issues, it agreed with the finding of the trial court and confirmed the dismissal of the suit and the decree on the counter claim. Hence this Second Appeal.
10. The learned counsel for the appellant has contended that as the first appellate court has found in fvaour of due execution of Ext.A5, consent deed, it follows that the appellant is entitled to a right of easement by grant over the 90 cms wide space (otherwise forming part of property of the 1st respondent as per Ext.B3) and that the decision of the courts below to the contra is not correct. A further argument the learned counsel advanced is that the 1st respondent could not have raised a counter claim otherwise than by amending the original written R.S.A. No.896 of 2011 -: 5 :- statement. It is argued that the additional written statement the 1st respondent has filed should be confined to the amendment made in the plaint - the prayer for mandatory injunction and that should not give the 1st respondent a cause of action to file a counter claim in the additional written statement. The learned counsel contended that the evidence on record is sufficient to show that at any rate, there was no construction on the boundary of the property belonging to the 1st respondent as per Ext.B3 even as on the date of the suit in which case, without proper identification of the property of the 1st respondent, the courts below went wrong in granting a decree for prohibitory injunction on the counter claim which has the effect of granting a decree for fixation of boundary without measurement of the property.
11. The learned counsel for the 1st respondent contended that Ext.A5, consent deed cannot in any way affect or bind the 1st respondent as it is free of all encumbrance or right of easement that the 1st respondent has acquired over the suit property as per Ext.B3. According to the learned counsel, Ext.A5, consent deed is the result of collusion between the appellant and the 2nd respondent after Ext.B3, assignment deed.
12. So far as the prayer made in the counter claim is R.S.A. No.896 of 2011 -: 6 :- concerned, it is argued by the learned counsel that it is open to the 1st respondent to raise a counter claim even after filing the written statement provided that as on the date of the counter claim, the cause of action pleaded therein is not barred by limitation and it has arisen before the date for filing the written statement. The learned counsel submitted that it is based on the reports submitted by the Advocate Commissioner that the trial court has granted a decree on the counter claim and which the first appellate court has confirmed, which involves no substantial question of law.
13. So far as the prohibitory and mandatory injunction prayed for by the appellant is concerned, it is based on Ext.A5, consent deed dated 05.04.1999 said to be executed by the 2nd respondent. The trial court was not very much impressed by the alleged execution of Ext.A5. But the first appellate court observed that the evidence of P.W1 and D.W2, the 2nd respondent would show that Ext.A5 is not a bogus or fabricated document.
14. I must bear in mind that based on Ext.A5, the appellant is not seeking relief against the 2nd respondent. Instead, based on Ext.A5, the appellant is seeking relief against the 1st respondent who is admittedly not a party to Ext.A5. True, R.S.A. No.896 of 2011 -: 7 :- according to the appellant, Ext.A5 was executed prior to execution of Ext.B3 dated 26.03.2004. Though for creating an easement by grant, as held by this Court in Mathai v. Jordi Poulose (2011 [2] KLT 605) it may not be necessary to have a registered document, registration of the document would have gone a long way in proving the due execution of the document. It is admitted that in Ext.B3, assignment deed executed by the 2nd respondent in favour of the 1st respondent, there is no mention of any easement created by the 2nd respondent in favour of the appellant or that the appellant was enjoying any right of easement so far as the disputed 90 cms wide space is concerned. Therefore, when all on a sudden the appellant comes with Ext.A5 as allegedly executed by the 2nd respondent I am not inclined to think that the brunt of it must be borne by the 1st respondent who has purchased the property without any such encumbrance.
15. Moreover, it is in evidence that even prior to 1998 (Ext.A5, assignment deed is dated 05.04.1999), the 2nd respondent had obtained an approved plan and permit for construction of the building in the property later assigned in favour of the 1st respondent as per Ext.B3. The Government, R.S.A. No.896 of 2011 -: 8 :- by order dated 08.10.1998 exempted the 2nd respondent from keeping the set back space from the lane. According to the appellant, it was to enable the 2nd respondent obtain such exemption that Ext.A5, consent deed was executed. But the trail court has for cogent reasons rejected that contention.
16. At any rate, having regard to the facts and circumstances above stated, Ext.A5 cannot be acted upon or bind the 1st respondent. I must also bear in mind that even as per Ext.B1, copy of partition deed relied on by the appellant (it is relevant to note that the appellant did not produce the partition deed or its copy on his side) entitlement of the appellant is only for a way having width of 1.20 metres. In the circumstances the trial and first appellate courts are justified in negativing the claim of the appellant based on the plea of easement by grant over the 90 cms wide space, over and above the way provided as per Ext.B1. I am satisfied that dismissal of the suit involves no substantial question of law.
17. What remains is the decree on the counter claim. No doubt, an additional written statement must be confined to answering the amendment made to the plaint, in this case, incorporation of prayer for mandatory injunction. But I am unable R.S.A. No.896 of 2011 -: 9 :- to accept the contention that in the additional written statement, the 1st respondent could not raise a counter claim. A counter claim could be raised even after the filing of the written statement but with respect to a cause of action which has arisen before or after filing the suit but before filing the written statement or before the time limited for filing the written statement. The 1st respondent has the apprehension that the appellant might interfere with his constructing the compound wall and hence he raised a counter claim and prayed for a decree for prohibitory injunction. That apprehension need not necessarily be from the amended prayer made by the appellant in the written statement. It is not the case of the appellant that the cause of action pleaded by the 1st respondent in the counter claim is barred by limitation as on the day the counter claim was raised. Therefore the objection to the maintainability of the counter claim has to be rejected.
18. Then the next question is whether in the way the 1st respondent has prayed for, the trial court was correct in granting a decree in the counter claim and the first appellate court, in confirming the same? The prayer made in the counter claim is a prohibitory injunction restraining the appellant from preventing R.S.A. No.896 of 2011 -: 10 :- the 1st respondent putting up compound wall on the boundary of the property. If granted, the relief permits the 1st respondent to put up a compound wall and the hands of the appellant will be tied by the decree for prohibitory injunction. It also amounts to the 1st respondent deciding what where the boundary of his property. Hence before granting decree for prohibitory injunction as prayed for in the counter claim, boundary of the property of the 1st respondent where the compound wall is proposed to be constructed ought to have been identified with reference to the measurement of the property which unfortunately has not happened in the case.
19. The learned counsel on both sides has invited my attention to what the Advocate Commissioner has reported in Ext.C2, to the existence of a foundation for construction made by the 1st respondent. It is agreed by both sides that none of the Advocate Commissioners has measured the property belonging to the 1st respondent as per Ext.B3 and fixed the western boundary so that, on that boundary the 1st respondent could construct a compound wall.
20. The learned counsel for the appellant points out from the Ext.A7, the caveat filed by the 1st respondent in the trial court R.S.A. No.896 of 2011 -: 11 :- on 06.10.12003 where, in paragraph 2 it is stated that there was no definite boundary between the pathway (on the western side) and the property purchased by the 1st respondent (as per Ext.B3). The suit was filed on 13.10.2003 and obviously for the reason of there being a caveat filed by the 1st respondent, the appellant was not able to get any interim order of injunction. Therefore the construction work embarked upon by the 1st respondent continued without any obstruction. In the circumstances merely because some foundation is found at a portion of the property purchased by the 1st respondent, I am not inclined to think at this stage that the said portion forms boundary of the suit property. That is a matter which has to be decided.
21. Though the trial court has not made use of a properly measured plan so far as the property the 1st respondent is concerned, it is not as if the executing court has no power to identify the property if necessary by deputing an Advocate Commissioner. Having regard to the facts and circumstances of the case I am inclined to think that the said exercise should be done by the executing court rather than remitting the counter claim to the trial court. Fixation of the western boundary of the property of the 1st respondent as per Ext.B3 would solve the R.S.A. No.896 of 2011 -: 12 :- dispute between the parties so far as the decree for counter claim is concerned I, having found that finding of the courts below that the appellant is not entitled to any easement of grant over the additional space as per Ext.A5 does not involve any substantial question of law. To that extent, the decree on the counter claim passed by the trial court and confirmed by the first appellate court has to be modified.
22. It follows that the judgment and decree of the Additional District Court, Thiruvananthapuram in A.S. No.276 of 2007 confirming dismissal of O.S. No.1612 of 2003 of the Third Additional Munsiff's Court, Thiruvananthapuram involves no substantial question of law.
23. The substantial question of law framed is answered as above.
The Second Appeal is disposed of as under:
The judgment and decree on the counter claim passed by the Third Additional Munsiff's Court, Thiruvananthapuram in O.S.No.1612 of 2003 and confirmed by the Additional District Court, Thiruvananthapuram in A.S. No.276 of 2007 are modified as under:
R.S.A. No.896 of 2011 -: 13 :-
(i) There will be a decree for prohibitory injunction restraining the appellant-plaintiff (respondent in the counter claim) from causing any obstruction to the 1st respondent/plaintiff in the counter claim putting up a compound wall on the western side of the property belonging to him as per Ext.B3.
(ii) The executing court is directed to ascertain the western boundary of the property belonging to the 1st respondent as per Ext.B3.
(iii) Along the boundary thus fixed by the executing court it will be open to the 1st respondent to put up a compound wall (within his property so that the boundary wall shall form part of his property) in the presence of an Advocate Commissioner or other Officer of the court as appointed by the executing court.
Parties shall suffer their costs in this appeal. All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv