Kerala High Court
Kathirummal Chirammal Karthyayani ... vs Kunnool Balakrishnan on 28 January, 2014
Author: N.K. Balakrishnan
Bench: N.K.Balakrishnan
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
TUESDAY, THE 28TH DAY OF JANUARY 2014/8TH MAGHA, 1935
RSA.No. 1291 of 2012 ()
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AGAINST THE JUDGMENT IN AS 92/2004 of SUB COURT, PAYYANNUR
AGAINST THE JUDGMENT IN OS 74/1998 of MUNSIFF COURT, THALIPARAMBA
APPELLANT(S):
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KATHIRUMMAL CHIRAMMAL KARTHYAYANI AGED 63 YEARS
D/O.KORAN, R/A.PARIYARAM AMSOM, MUKKUNNU DESOM
PADAVIL TALIPARAMBA TALUK
BY ADVS.SRI.M.SASINDRAN
SRI.SATHEESHAN ALAKKADAN
RESPONDENT(S):
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1. KUNNOOL BALAKRISHNAN
S/O.OTHENI, TODDY WORKER, KANNAPRAM AMSOM
KEEZHARA DESOM, KANNUR DIST-670301
2. CHANDRAMATHI
D/O.LATE OTHENI, AGRICULTURIST, KANNAPRAM AMSOM
KEEZHARA DESOM, KANNUR DIST-670301
3. KUNNOOL MOHANAN,
P.B.NO.2506, MANAMA, BAHARIN
4. UNNIKRISHNAN
EVER SILVER SALES CENTRE BIJON SETU SHOP NO 8
UNDER BALLYGURGA OVER BRIDGE, CULCUTTA-700019
5. NARAYANAN,
P.B.NO.20621 MANAMA, BAHARAIN
BY ADV. SRI.MAHESH V RAMAKRISHNAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 28-01-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CR
N.K. BALAKRISHNAN, J.
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R.S.A. No. 1291 of 2012
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Dated this the 28th day of January, 2014
J U D G M E N T
The defendant is the appellant. The suit OS No.74/1998 was filed for fixation of the western boundary of the plaint schedule property. The aforesaid suit was tried along with O.S. No.6/1998. There, the appellant was the plaintiff, but the defendant was stated to be the respondent's brother's son. The trial court granted a decree in OS No.6/1998 against the defendant therein. The suit OS No.74/1998 filed by the respondent for fixation of boundary was dismissed.
2. Evidence was recorded in OS No.6/1998. The appellant herein was examined as PW1 and Exhibits A1, A2 and A2(a) were marked. Exhibits B1, B2 and B2(a) were marked on the side of the respondents herein. The Commissioners report and plan were marked as Exhibits C1 R.S.A.No.1291/2012 :2 :-
to C6. The 1st respondent was examined as DW2 and the defendant in O.S. No.6/1998 was examined as DW1.
3. No appeal was filed by the defendant in O.S. No.6/1998. But, that will not in any way affect the case of the appellant or the respondents in this case.
4. The trial court dismissed OS No.74/1998. The plaintiff therein filed appeal. The appellate court reversed the finding of the trial court and granted a decree in favour of the respondents. The western boundary of the respondents property was fixed along 'EF' line shown in Ext.C6 plan.
5. The learned counsel for the appellant submits that the appellant who was examined as PW1 had a definite case that her property extends up to the 'chal' and the ridge on the eastern side of the property and so the findings entered by the appellate court that the boundary of the respondents' property should be along the 'EF' line, cannot be accepted at all. Simply because resurvey was conducted and a plan was drawn by the Survey Authorities, it cannot be said that the appellant's property does not extend up to the dotted line shown by the Commissioner, which is actually the natural boundary of the property, it is argued. In fact, the Advocate Commissioner or the Surveyor R.S.A.No.1291/2012 :3 :-
could not trace out the survey stones anywhere near the property and so the re-survey line fixed by the Surveyor and the Advocate Commissioner cannot be made use of to contend that the respondents' property, which is lying to the east of the appellant's property, extends up to 'EF' line, it is further argued.
6. The learned counsel for the appellant Mr.Satheesan Alakkadan further argues that since the trial court has found that the appellant's property extends up to the 'chal' and the ridge, the appellate court was not justified in reversing the finding purely based on the survey plan which was produced by the Advocate Commissioner. It is also argued that when there is a clear boundary on the western side of the respondents' property, which is the eastern boundary of the appellant's property, there is absolutely no necessity to fix a boundary again as sought for by the respondents. It is also contended that the respondents have no specific case that they are in possession of the disputed blue shaded property and so without a prayer for recovery of possession, the appellate court is not justified in granting a decree for fixing the boundary along the 'EF' line, which would enable the respondents to get possession of the blue shaded plot marked by the Commissioner in Ext.C6 plan.
R.S.A.No.1291/2012 :4 :-
7. The substantial question of law framed in this appeal is:
"Whether the suit for fixation of boundary is maintainable without a prayer for recovery of possession ?"
8. The extent of the disputed blue shaded portion is only 0.544 cents (0.0022 hector). Inclusive of the blue shaded plot the extent of property claimed by the plaintiff is only 9.241 cents. There was no necessity for the plaintiff's to have the property of defendants measured. It was pointed out by the learned counsel for respondents that in evidence it was admitted by PW1 (the appellant herein) that she is not in possession of the property comprised in Sy.No.71/2 which is corresponding to the new No.90/11. The property of the appellant falls in new No.90/12 corresponding to old Survey No.71/1.
9. Sri.Satheesan Alakkadan, the learned counsel for the appellant submits that respondents cannot bank upon that solitary sentence, culled out from the evidence of PW1, to contend that the appellant has no right or possession of any extent of land in Re.Sy.No. 90/11 corresponding to old Sy.No. R.S.A.No.1291/2012 :5 :-
71/2. The evidence would show that the Re-survey was conducted and measurement was done relying upon the resurvey plan as well. Going by the commissioner's report, plan and the title deed relied upon by the respondents, it can be very well found that the blue shaded plot measuring 0.544 cents falls in the property held by the respondents.
10. The crucial question now that falls for consideration is whether the respondents/plaintiffs are entitled to get the boundary fixed along the line EF. The learned counsel for the appellant vehemently argues that without a prayer for recovery of possession of the blue shaded plot mentioned above respondents are not entitled to get a decree as sought for. In support of that submission he has relied upon the decision of this court in Anjil Vellachi v. Mamuni Bhaskaran - 2009 (3) KHC
728.
11. That was a case where the disputed plot 'MNKL' was having an extent of 22 cents. That plot was found lying together with plot 'MNOP' measuring 43 cents as a compact plot . The disputed plot along with the remaining plot was lying on a higher level than the eastern boundary property. The eastern boundary property was in possession of the plaintiff. That R.S.A.No.1291/2012 :6 :-
property was separated from the plot 'MNKL' by row of trees on the vertical ridges. It was found that including the disputed 22 cents the entire 65 cents of land in the possession of the defendants was separately identified. In that context it was held that a suit for fixation of boundary cannot be a shortcut or substitute for recovery of possession and that the remedy if any, of the plaintiff was to sue for recovery of possession on the strength of title besides, seeking fixation of the boundary. The position in this case is entirely different. In the case on hand, the dispute centers round a very narrow strip of land.
12. If it is a case where large extent of property lying in a different survey number is claimed by the plaintiff based on a survey record alone, when actually it is in the possession of the defendant, the plaintiff has to seek recovery of possession of that large extent of property which is in the possession of the defendant. So far as the case on hand is concerned, it is only a very narrow strip of land lying along the boundary line. Hence, the presumption should be that the person, who has got title to the property and whose boundary extends upto the line stated above is in possession of that narrow strip of land as well.
13. Following the decision in Lukhi Narain Jagaden v.
R.S.A.No.1291/2012 :7 :-
Maharaja Jodu Nath Des (21 I.A. 39) it was held by this court in Damodara Panicker v. Ayyappan Kutty (1962 KLT 637) :
"Where the disputed land is a narrow strip, (in this case, it is of width ranging from two or three feet) at the verge of the plaintiff's land adjoining the defendants' property it would in most cases, be difficult to prove its actual possession as such. If the remaining portion of the plaintiff's land is admitted or found to be in the plaintiff's possession, the same must be held to extend to the border, unless there be clear evidence to the contrary. In other words, when a person is admitted or found to be in possession of his land identified by a Survey Number and the dispute by the adjoining landholder concerns only a narrow strip at the mutual boundary, the possession of the former will be presumed to be coextensive with the relative survey division and the burden will be on the party claiming the encroachment to prove his adverse possession thereof for over the statutory period (of 12 years)".
Same was the view taken by this court in another case Achuthan Unni v. Vally - 1962 KLT 1010.
14. The learned counsel for the appellant has relied upon the decision in Ibrahim v. Saythumuhammed - 2013 (4) KLT 435 in support of the submission that it is not for the survey authority to decide the question of title and that merely because a portion of the property of the appellant falls in another resurvey number, it cannot lead to an inference that the possession was with the respondent. The facts dealt with therein are entirely different. In that case the identification of the R.S.A.No.1291/2012 :8 :-
property done by the advocate commissioner was accepted by the trial court and the lower appellate court and so this court had no difficulty to hold that plots 1 and 2 shown in the plan therein,were the plots over which the plaintiff has title by virtue of the title deed produced therein . That is not the case here.
15. It was held by a Division Bench of this Court in P.Naravayan Nair v. E.Achuthan Nair and another - AIR 1974 Kerala 51 :
It is only when one of the parties or both of them think of exercising acts of possession in the land that this dispute will come into focus and then, if they cannot settle the matter between themselves the consequence would be that each one would try to take possession of the property which is claimed as that of the other. It is only natural that then they think of resorting to the civil court to settle the dispute as to the boundary. If a person who apprehends trespass to his property has a right to approach a civil court to protect his possession, we see no rational difference between such a case and the one where a person has reasonable apprehension that in the absence of a definite boundary demarcated on the spot his title and possession may be in jeopardy. If a person could come to a court for declaration of his title to property and removal of the cloud on his title even though there is no actual encroachment or infringement upon that title, but only because he has sufficient reason to apprehend an imminent infringement, we do not see any reason why a suit for determining the dispute as to the boundaries, R.S.A.No.1291/2012 :9 :-
very often in apprehension of a trespass in the event of that dispute, not being settled by court, should not lie in Court. Of course whether on the facts of a case there is any cause of action for the suit is a different matter altogether.
It was also held by the Division Bench:
"As the owner of one piece of land is under a legal duty not to interfere with the possession and enjoyment of the owner of a neighbouing land as part of that duty or for its performance rather, he must know the limits of the neighbour's land. When the latter seeks his co-operation to fix the dividing line separating his property he must respond to it. If he refuses to co-operate or claims to have the dividing line drawn in a different way than that put forward by the neighbour there is an uncertainty or a threat to or a cloud cast to the right of the possession of the land of the neighbour and the latter can approach the court seeking redress. It may not be possible for him to seek recovery or seek injunction as a main relief in that that relief will depend on the fixation of the dividing line. The main relief can be one for fixation of boundary and the other reliefs. If necessary, will be consequential or identical".
When the judgment of the Division Bench in P. Narayanan Nair's case (supra) was taken up before the Hon'ble Supreme Court, the brief note given by his Lordship Justice G. Viswanatha Iyer in Narayanan Nair's case was quoted with approval as follows:
R.S.A.No.1291/2012 :10 :-
"Disputes as regard the location of boundary
separating adjacent lands of different owners may arise under ever so many circumstances. One common instance is where portions of survey field are transferred or allotted to different persons without mentioning either the side measurements or other necessary measurements to fix the geometrical shape of the plot at the spot. The area and location alone may have been shown in the transfer deed or the partition deed. Without changing the location, the area conveyed or allotted may be sought to be located in one or more alternative geometrical shape by one owner. This may clash with the claim of the other person to have his area located in a particular geometrical shape. Again, any one party may wish to have the limits of the area belonging to him demarcated so that he may either enclose the area to prevent trespass or to exercise acts of possession without encroaching into the neighbouring plot. If the other party on demand does not co-operate, a cause of action arises to have the limits of his property determined through court. Again the property conveyed or allotted may have been described only with reference to neighbouring properties. Those properties may or may not have been limited in extent and shape to a survey field. In that case, a fixation of the boundary of those properties may be necessary to fix the boundaries of the properties conveyed or allotted. If there is no co-operation in doing that, that may result in a dispute These instances are only illustrative and not exhaustive. All these disputes are disputes of a civil nature and they can form the subject matter of a suit under Section 9 C.P.C. There is no express or implied bar under any other law..............According to me, whenever there is a dispute between two parties as regards the location of a boundary separating their R.S.A.No.1291/2012 :11 :-
neighbouring properties and if on a demand to co- operate in fixing that boundary it is not given, a suit will lie at the instance of the demanding party".
As such it can be found that the decision in Narayanan Nair's Case (supra) was affirmed by the Supreme Court in E.Achuthan Nair v. P.Narayanan Nair and another - AIR 1987 SC 2137.
16. It is submitted by Sri. Mahesh Ramakrishnan, the learned counsel for the respondents that in the light of the decisions in Damodara Panicker and Achuthan Unni, cited supra and of the Division Bench in P.Narayanan Nair and another v. E. Achuthan Nair - AIR 1974 Kerala 51 which was affirmed by the Hon'ble Supreme Court, the decision in Anjil Vellachi's Case (supra) is not good law. The decision in Anjil Vellachi's Case (supra) has to be distinguished on facts as well.
17. Since the dispute is only in regard to a very narrow strip of land lying along the boundary line of the property of the appellant and respondents, it has to be held that the respondents, whose property as per the title deed and survey record extends upto the line 'EF' must be held to be in possession of the narrow strip of land shaded in blue colour as R.S.A.No.1291/2012 :12 :-
well.
18. "Possession" is a polymorphus term. It may have different meaning in different context. Meaning of "possession"
depends on the context in which it is used. The concept of "settled possession" is not so fluid as to accommodate the case on hand. A casual act of possession, stray or even intermittent act of trespass would not mature into "settled possession". It was so held by the Hon'ble Supreme Court in Munshi Ram v. Delhi Administration - AIR 1968 SC 702. The Hon'ble Supreme Court had also occasion to deal with the term "settled possession" in Puran Singh v. State of Punjab - AIR 1975 SC 1674. There it was explained that "settled possession" must extend over sufficiently long period and acquiesced in by the true owner. So far as the case on hand is concerned there is nothing in evidence to show that the true owner had acquiesced in the alleged possession of the narrow strip of land by the defendant. So much so, it cannot be said that the defendant was in settled possession of that narrow strip of land which lies along the boundary so as to contend that the suit for mere fixation of boundary or injunction cannot be sustained. The plea raised by the defendant that unless the plaintiff sues for recovery of R.S.A.No.1291/2012 :13 :-
possession of that narrow strip of land, the plaintiff is not entitled to get the boundary fixed along the line 'EF' demarcated by the Advocate Commissioner must thus fall to the ground. Bearing in mind the principles of law adumbrated by the Division Bench in P.Narayanan Nair's case, affirmed by the Hon'ble Supreme Court, I have no hesitation to hold that the defendant was not in settled possession of the narrow strip of land so as to uphold his plea that the suit for mere fixation of boundary is unsustainable.
19. Once the title of the plaintiff is proved, his possession should be presumed unless it is proved that the defendant/defendant's predecessor-in-interest came in and drove out the plaintiff from his possession. There is nothing on record to show that the plaintiff was dispossessed by the defendant or his predecessor-in-interest from the land in dispute. It is true that in a suit for injunction, the burden is on the plaintiff to prove that he was in possession of the property as on the date of the suit. But it has to be gathered from the evidence and circumstances obtained in the particular case. When the defendant has absolutely no right over the narrow strip of land lying along the boundary, the contention that he was in R.S.A.No.1291/2012 :14 :-
possession of the property and that the plaintiff was out of possession cannot be sustained, especially, in view of the fact that the plaintiff has proved that he has title in respect of narrow strip of land as well. The argument to the contrary advanced by the learned counsel for the appellant cannot thus be sustained.
The substantial question of law is answered against the appellant. This RSA is hence, dismissed.
Datedthisthe28thdayofJanuary,2014.
Sd/-N.K.BALAKRISHNAN, JUDGE das/ani /truecopy/ P.S. Tojudge