Kerala High Court
V.J. Joy vs Ushakumari on 26 May, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY,THE 26TH DAY OF MAY 2014/5TH JYAISHTA, 1936
RSA.No. 646 of 2011 ( )
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AS 426/2005 of DISTRICT COURT,TRIVANDRUM
IN OS 1952/2005 of III ADDL.MUNSIF COURT,TRIVANDRUM
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APPELLANTS/APPELLANTS/DEFENDANTS:
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1. V.J. JOY,
S/O.P.V. JOHN, 6/584-4, ANUPAMA NAGAR,
PONGUMOODU, THIRUVANANTHAPURAM.
2. BEENA JOY,
W/O. V.J. JOY, 6/584-4, ANUPAMA NAGAR,
PONGUMOODU, THIRUVANANTHAPURAM.
BY ADV. SRI.G.S.REGHUNATH
RESPONDENT/RESPONDENT:
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USHAKUMARI,
D/O. SAROJINI AMMA, MOHANAVILASOM, PONGUMMOODU,
CHERUVIKKAL VILLAGE, MEDICAL COLLEGE. P.O.,
THIRUVANANTHAPURAM - 695 011.
BY SRI.S.SREEKUMAR SENIOR ADVOCATE
ADVS. SRI.P.MARTIN JOSE
SRI.P.PRIJITH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 11/4/2014 , THE COURT ON 26-05-2014 DELIVERED THE
FOLLOWING:
BP
P.BHAVADASAN, J.
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R.S.A. No. 646 of 2011
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Dated this the 26th day of May, 2014
J U D G M E N T
The suit relates to a narrow strip of land shown as F schedule to the plaint. It has an extent of 1 = cents and it is a way situated on the northern portion of A schedule property belonging to the plaintiff.
2. Initially, the suit was one for injunction against trespassing into plaint A schedule property in which the plaintiff resides. Later, the plaint was amended incorporating 'virivu' (excess land) in respect of 12.133 cents in Survey No. 283/1 and a building therein out of the 32 cents which is shown as C schedule, B schedule being the property belonging to the defendants situate on the northern side of plaint A schedule. Plaint also incorporated D, E and F plots. D schedule is about 10 and odd cents of land sold out of 32 cents obtained by the plaintiff as per Ext.A2 document. E schedule is another portion of 9 cents sold by the plaintiff out of the 32 cents. F schedule is the property left after C, R.S.A. No. 646 of 2011 -2- D and E property shown in the plaint. In the plaint, it was averred that the said F schedule was left by its owners for being used as a pathway for the persons who owned D and E schedule properties. The suit ultimately became one for declaration of title and possession of F schedule property and other consequential reliefs.
3. The defendants resisted the suit. They filed a written statement as well as an additional written statement. Their contentions were two fold: (1) The plaintiff did get 32 cents of property but the property so obtained by him is not the property shown in the plaint schedule. (2) There is a road on the southern side of the plaint B schedule property owned by the defendants. The said road originated by grant finally resulting in dedication. It is a tarred road being used by public of the locality. The defendants too make use of the said way. While the defendants were away, the plaintiff managed to put up a barbed wire fencing on the northern boundary of the pathway thereby restricting the use of the R.S.A. No. 646 of 2011 -3- pathway by the defendants. The way which the plaintiff claimed, is on the north-western corner of plaint B schedule and it is 30 feet higher in level. In the additional written statement filed by them, they disputed the title of the plaintiff to the F schedule also. They have contended that it was an attempt to annex the road to their property and pointed out that the plaintiff is not entitled to any relief.
4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts. A1 to A12 from the side of the plaintiff. The defendants had DWs 1 to 3 examined and Exts. B1 to B4 marked. Exts. C1, C2 and C2
(a) are the Commissioners reports and plans.
5. The trial court as well as the lower appellate court took the view that since the plea in the written statement was one of grant and dedication resulting in a public road being formed and used by the public of the locality, the burden was on the defendants to establish their claim. It R.S.A. No. 646 of 2011 -4- was also observed by both the courts below that since the plea is one of grant and dedication, the title to F schedule stands admitted. As the defendants were not successful in establishing their claim regarding public way, the trial court decreed the suit which was confirmed in the appeal.
6. Sri. G.S. Reghunath, the learned counsel appearing for the appellant contended that both the courts below have erred both on facts and in law. The specific contention in the written statement was that the 32 cents shown in the plaint schedule is not the property obtained by the plaintiff as claimed by her. The learned counsel drew attention of this Court to the description of C schedule which in two survey numbers shown as 283/2 containing 50 cents and 284/1 with 60 and odd cents lying contiguously as 1.38 acres and out of that property, on the northern side, 7 cents in 283/B2 and 25 cents in 283/B1 together form 32 cents which was assigned to the plaintiff. The learned counsel drew attention of this Court to the fact that significantly, no R.S.A. No. 646 of 2011 -5- boundaries are shown in the plaint D, E and F schedule. According to the learned counsel, initially, the 32 cents claims to have been obtained by the plaintiff out of the 1.38 acres had to be identified.
7. The learned counsel went on to point out that both the courts below seem to have forgotten the fact that the plaintiff had sued for declaration of title and possession and therefore, the entire burden was on her to establish her claim. The weakness of the defence case or the failure on the part of the defendants to establish their case cannot be a reason to grant a decree in favour of the plaintiff. Even assuming that the defendants did not prove the grant or dedication as contended by them, it does not automatically result in a decree being granted to the plaintiff. The plaintiff had to necessarily show that she had title to F schedule and she is entitled to possession. A construction of Exts.B1, A5 and B3 will show that no reliance can be placed on Exts. C2 and C2(a) and it can be easily seen that the Commissioners R.S.A. No. 646 of 2011 -6- reports and plans are wrong. It is precisely due to this reason that the plaintiff omitted showing the boundaries to D, E and F schedules in the plaint. A perusal of Exts. C2 and C2(a) plan will clearly show that the F schedule has not been independently identified by the Commissioner. Further, according to the learned counsel, the Commissioners report and his evidence will show that the plot owned by the plaintiff which admittedly lies on the southern side of the F schedule is well bound on all four sides by compound wall and lies separated and distinct from the F schedule pathway. It is also significant to notice according to the learned counsel that there is no opening from the plaintiff's property for access from the F schedule. May be that the defendants have failed in their attempt to get the right of way declared either through court or through proceedings before RDO. That does not enable the plaintiff to automatically get a relief. The plaintiff will have to independently establish her title and right of possession. This crucial aspect has been R.S.A. No. 646 of 2011 -7- loss sight of.
8. The learned counsel also drew attention of this Court to the fact that the plaintiff had not mounted the box and her power of attorney alone was examined. As per the decision reported in Janki Vashdeo Bhojwani & Another v. Indus Ind Bank Ltd. [2005 (2) SCC 217] and S. Kesari Hanuman Goud v. Anjum Jehan [AIR 2014 Supreme Court (Civil) 153], the evidence of power of attorney cannot be a substitute for the evidence of party. Even assuming that the evidence of PW1 can be looked into, it goes against the plaintiff's case and that has also been loss sight of by the courts below. He therefore contended that the decree granted by both the courts below cannot be sustained.
9. Sri. S. Sreekumar, the learned senior counsel appearing for the contesting respondent on the other hand pointed out that a perusal of the judgments of the courts below will clearly indicate that the sole contention advanced before the said court was a plea of grant and dedication in R.S.A. No. 646 of 2011 -8- respect of the F schedule pathway. The title of the plaintiff was never put in dispute and there was no necessity therefore to go the title of the plaintiff. Having raised a contention on the basis of grant and dedication which impliedly admits the title of the plaintiff and on failure of the defendants to prove their case, necessarily, a decree had to follow. A perusal of the title deed of the defendants namely Ext. A7 will clearly show that their southern boundary shown as a private lane which in fact is F schedule and they are provided with another way on the north-western corner of their property. There is no specific pleading in the written statement challenging the title of the plaintiff. At no point of time, it was contended before the courts below that the plaintiff did not have title to F schedule property. It was in the light of these facts that the courts were called upon to consider whether the plea of grant and dedication made by the defendants was established. Having failed to do so, necessarily, the defendants had to suffer a decree. The R.S.A. No. 646 of 2011 -9- learned senior counsel then pointed out that both the courts below have considered the evidence in considerable detail and have come to the conclusion that the defendants are failed to prove their case and the plaintiff is entitled to the decree. Being essentially a question of fact, no interference is called for in this second appeal.
10. After having heard the learned counsel for the appellants and the learned counsel for the respondent and after having perused the records, it is seen that there is considerable force in the contentions raised by the appellants.
11. Initially, there were only A and B schedule properties in the plaint of which B schedule belongs to the defendants and relief was confined to A schedule property. Later, the plaint was amended to incorporate C, D, E and F plots. C schedule is the property admittedly currently held by the plaintiff where she resides. D schedule is the property alleged to have been sold by the plaintiff as per R.S.A. No. 646 of 2011 -10- Ext.A5. If one goes by the description in Ext.A5 as well as the plan appended thereto, it can be seen that the properties sold by Ext.A5 is on the north-eastern corner of the 32 cents of property obtained as per Ext.A2 by the plaintiff. Similarly, going by Ext.B1, which is an assignment deed executed by the plaintiff in respect of 9 cents, it can be seen that the said property lies on the north-western corner of the 32 cents. It would appear from the description of properties in Ext.A5 and Ext.B1 that the two properties lie on two extreme ends namely the eastern end and the western end on the northern side of the 32 cents obtained by the plaintiff. It is significant to notice that there is a plan attached to Ext.A5 document of assignment. Keeping in mind, the description of the properties assigned as per Ext.A5 and B1, if one looks at Ext.C2 (a) plan and report, it bears no comparison at all. Apart from the fact that the property sold as D schedule is shown on the western side, the property shown as E schedule is on the eastern side of D R.S.A. No. 646 of 2011 -11- schedule and is lying contiguously with D schedule property. At the risk of repetition, one may say that if one goes by the description in Exts.A5 and B1, it can be easily seen that the plan cannot be correct.
12. The contention taken by the learned counsel for the respondent that there was no dispute regarding the title to the plaint schedule property, cannot be countenanced. The definite stand taken by the defendants in the earlier portion of their written statement was that even though the plaintiff had obtained 32 cents of property, that was not the property scheduled to the plaint.
13. True, the records show that the Commissioner had identified the property in the presence of both the parties. The learned counsel for the respondent may be justified in its submission that there is no case for the defendants that the property so identified is not the property owned by the plaintiff. However, one cannot omit to note that the plan drawn by the Commissioner does not tally with the R.S.A. No. 646 of 2011 -12- description of properties as contained in Exts. A5 and B1. Significantly enough, boundaries to D, E and F schedule are absent in the plaint. Going by the D and E plots shown in C2
(a) plan, the boundaries do not tally with the boundaries as contained in Ext. A5 and B1.
14. The plaintiff admittedly obtained the property of 32 cents as per Ext.A2 document of 1985. It contains the side measurements of the plot so obtained by the plaintiff. When one compares the side measurements in Ext.A2 with the site measurements in Ext.C2(a), they also do not tally. In Ext.A5, the way on the east and on the northern side have been specifically mentioned.
15. Going by the description in Ext.B1, the 9 cents of property out of 1.32 acres is situated on the southern side of the way running east-west. As already stated, if one looks at the boundaries in Exts. A5 and B1, it bears no similarity with the boundaries as could be discerned from Ext.C2(a) plan. R.S.A. No. 646 of 2011 -13-
16. A reading of the judgments of the lower court do indicate that the main emphasis laid by the defendants was on the question of grant and dedication. Or in other words, their specific case seems to be that the pathway lying on the southern side originated by grant and then by dedication resulting in a public way. It may not be quite appropriate to say that the defendants admitted the plaintiff's title to F schedule. The earlier portion of the written statement cannot be overlooked in this respect.
17. Of course, the claim of the defendants that the way on their southern side is a public way has not been established. But one cannot omit to note that the Commissioner has reported that the so called F schedule way lies well separated by a boundary wall on the southern side of the plaint A or C schedule properties, as the case may be, belonging to the plaintiff. It is also clear from the Commissioners report that there is no access from the plaint C schedule property to the pathway on the northern side. R.S.A. No. 646 of 2011 -14-
18. The Commissioner was examined as DW2.
According to his testimony, the plaint A schedule property or the C schedule as the case may be, lies abutting a road on the east. There is no such road shown in Ext.C2(a) plan. The evidence of DW2 is clear to the effect that the so called pathway on the northern side of plaint C schedule lies well separated from plaint C schedule by a boundary wall and there is no opening from the plaint C schedule to the way. It is conceded by DW2, the Commissioner that there were no attempt from his side to find out where 32 cents assigned as per Ext.A2 to the plaintiff is located with reference to 1.38 acres from which the 32 cents was sold to the plaintiff.
19. DW3 is the Village Officer who prepared the plan. He says he had the survey plan with him. He too admitted that the road from which there is direct access from C schedule has not been shown in Ext.C2(a). He also stated that the way made mention of in Ext.B1 has not been shown in Ext.C2(a) plan. Though, DW3 claims that plaint D R.S.A. No. 646 of 2011 -15- schedule was identified with reference to the boundaries, it is obvious that going by Ext.A2 document it cannot be so.
20. Merely because, the defendants may not have been successful in establishing their plea, as rightly pointed out by the learned counsel for the appellants, it is not a ground to grant a decree in favour of the plaintiff. The contention of the learned counsel for the respondent that there was no serious contest regarding the title and the contention remains confined to the grant or dedication with regard to F schedule cannot be easily accepted. Though in not so many words, there was a definite contention from the side of defendants that the property shown in the plaint is not the property obtained by the plaintiff. Admittedly, the 32 cents obtained by the plaintiff as per Ext.A2 is out of a larger extent of property. It is not discernible from Ext. C2(a) plan or report as to, from which portion of 1.38 acres of land was 32 cents carved out and sold to the plaintiff. Added to this is the fact that going by the description in Exts. A5 and R.S.A. No. 646 of 2011 -16- B1, it is virtually impossible that the two plots lie contiguously. They lie at two extreme ends. However, Ext.C2 plan shows them lying as contiguous plots.
21. It was contended by the learned counsel for the respondents that having confined the contention to grant and dedication, the contention raised cannot now be heard to enlarge the scope of the suit by incorporating a new contention that the title of the plaintiff is not established.
22. As already stated, even assuming that the defendants did not raise any contentions, that does not enable the plaintiff to get a decree unless he establishes her title, right and possession. As rightly pointed out by the learned counsel for the appellants, the plaintiff cannot succeed on the weakness of the defence case.
23. Apart from the above facts, it is yet another aspect which needs mentioned herein. The plaintiff did not mount the box. Her power of attorney was examined. Not only that the evidence of power of attorney cannot be accepted R.S.A. No. 646 of 2011 -17- as that of the plaintiff, his evidence shows that the plaintiff has lost title to F schedule property. The decisions made mention of are clear to the effect that the power of attorney cannot speak regarding matters which are within the personal knowledge of the plaintiff. True, PW1 claims that he is in know of things. But his evidence would show otherwise. In cross examination PW1 stated as follows:
"'F'IG_5 'gM^Z dVaD_ d5_WmC )IgO^7_AaKa.edVaD_Am )NX U_\Am f5^?aJa.ePhilipose Omen-Hm I^F_ U_\Am f5^?aJa.e1995 W U_\OmAm f5^?aJa.e1995_W 'F' IG_5 U]_O^O_xagK^? (Q) IaxO_?N^O_ )IgO^7_:n_xaKa ."
In another portion of cross examination, he says there is a car porch in the F schedule and it is being used as a playing area by the children. That it can not be so can be seen from the Commissioners report as well as the evidence of DW2, the Commissioner. PW1 seems to have no idea about the R.S.A. No. 646 of 2011 -18- property at all.
24. Both the courts below have therefore not determined the real issue involved in this suit and were guided by the fact that all that they need to look into was whether the plea of grant and dedication made by the defendants had been established. It cannot be so. It cannot be said that defendants have not disputed the title of the plaintiff. There was no proper consideration of the issue that actually arose for determination in the suit and both the courts below have erred both on facts and in law. It is felt that a re-determination of the issue involved is necessary.
For the above reason, this appeal is allowed. The impugned judgments and decrees of the courts below are set aside. The matter is remanded to trial court for fresh disposal in accordance with law and in the light of what has been stated above. The parties will be at liberty to adduce further evidence. They shall appear before the lower court on 06.06.2014. The trial court may make every endeavour R.S.A. No. 646 of 2011 -19- to dispose of the suit as expeditiously as possible at any rate within a period of nine months from the date of appearance. There will be no order as to costs.
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P.BHAVADASAN JUDGE ds //True Copy// P.A. To Judge The 2nd sentence in paragraph 2 of the judgment is deleted and substituted with the following, vide order dated 6-7-2015 in R.P. No.222/2015 in R.S.A. No. 646/2011:
"Later, the plaint was amended incorporating 32 cents which is shown as 'C' schedule, 'B' schedule being the property belonging to the defendants situate on the northern side of plaint 'A' schedule."
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Registrar (Judicial)