Kerala High Court
Arikkulangara Kunhikkeloth Righesh ... vs Pullanhodan Kunnoth Gopalan Nambiar ... on 12 February, 2014
Author: K.Abraham Mathew
Bench: K.Abraham Mathew
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
FRIDAY,THE 24TH DAY OF OCTOBER 2014/2ND KARTHIKA, 1936
FAO (RO).No. 112 of 2014
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AGAINST THE JUDGMENT(REMAND ORDER) IN AS 284/2005 & CROSS APPEAL ON
THE FILE OF THE DISTRICT COURT, THALASSERY DATED 12-02-2014
AGAINST THE JUDGMENT AND DECREE IN OS 423/2003 ON THE FILE OF THE
MUNSIFF COURT,KANNUR DATED 29-09-2005
APPELLANTS/RESPONDENTS 5 & 6/DEFENDANTS 5 & 6:
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1. ARIKKULANGARA KUNHIKKELOTH RIGHESH BABU
S/O VIJAYALAKSHMI, SHANKAR NIVAS, CHELORA
P.O.VARAM, KANNUR DISTRICT-670 594
2. ARIKULANGARAAJITH KUMAR
S/O LALITHA, OTTAPUNATHIL, CHELORA
P.O.VARAM, KANNUR DISTRICT-670594.
BY ADVS.SRI.K.V.SOHAN
SMT.SREEJA SOHAN.K.
SRI.ROVIN RODRIGUES
RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 TO 4:
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1. PULLANHODAN KUNNOTH GOPALAN NAMBIAR (DIED),
S/O CHANDU NAMBIAR, NALLENKANDY HOUSE, CHELORA
P.O.VARAM, KANNUR DISTRICT-670 594.
RESPONDENTS 2 AND 3 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF
DECEASED R1 VIDE ORDER DTD.14.8.2014 IN IA NO.1259/2014
2. K.P.CHANCHALAKSHMI
W/O K.V.NARAYANAN NAMBIAR, JAYAPURAM, MATHUKOTH
CHELORA, P.O.VARAM, KANNUR DISTRICT-670 594.
3. P.K.SAROJINI AMMA,
W/O U.NARAYANAN, CHELORA, P.O.VARAM
KANNUR DISTRICT-670 594.
4. ARIKKULANGARA KUNHIKKELOTH LALITHA
D/O CHANDUKUTTY, OTTAPUNATHIL, CHELORA
P.O.VARAM, KANNUR DISTRICT-670 594.
5. ARIKKULANGARA VIJAYALAKSHMI
W/O SHANKARAN, SHANKAR NIVAS, CHELORA
P.O.VARAM, KANNUR DISTRICT-670 594.
6. BHARGAVI
D/O KALLIANI AMMA, SREENILAYAM, R.V.MOTTA
IRIVERI P.O., KANNUR DISTRICT-670 614.
FAO (RO).No. 112 of 2014
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7. RAMACHANDRAN
S/O CHANDUKUTTY, OTTAPUNATHIL, CHELORA
P.O. VARAM, KANNUR DISTRICT-670594.
BY ADVS.SRI.V. SRI.N.NAGARESH
SRI.SHAJI THOMAS
SRI.K.BABU
SRI.BINU PAUL
SRI.T.V.VINU
R7 BY ADV. SRI.P.E.THOMAS
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY
HEARD ON 7.10.2014, THE COURT ON 24.10.2014 DELIVERED THE FOLLOWING:
cms
K.ABRAHAM MATHEW J.
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F.A.O(R.O)No.112 OF 2014
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Dated this the 24th day of October, 2014
JUDGMENT
Defendants 5 and 6 challenge the order of remand passed by the District Judge, Thalassery in A.S.No.284 of 2005, in which a cross appeal had been filed.
2. In a partition that took place in 1956 plaint schedule item No.1 (hereinafter referred to as the property in dispute) was kept in common for the benefit of the tavazhi of the plaintiffs. It is possessed and managed by the plaintiffs on behalf of themselves and other members of the tavazhi. Plaint schedule item No.2 is the northern property adjoining the property in dispute. It is in the possession of the defendants. There is a boundary wall separating the two properties. The defendants trespassed into the property in dispute and made some constructions in their attempt to put up a wall enclosing it. But the attempt was defeated by the plaintiffs and they are still in possession of the property. On these allegations the plaintiffs prayed for a perpetual injunction prohibiting the defendants from trespassing into the property in dispute and for a mandatory injunction directing them to remove the constructions they made in it. The defendants contended that the property in dispute is part of the property which is in their ownership and possession and the plaintiffs' allegation that it is in their possession is false.
F.A.O(R.O)No.112 OF 2014 2
3. The trial court came to the conclusion that there is no evidence to prove that the plaintiffs are in possession of the property in dispute and consequently it dismissed the suit. In the appeal the learned District Judge took notice of the fact that though an issue had been raised as to the title of the plaintiffs to the property in dispute, the lower court did not go into the question of title as they had not paid court fees for the trial of that issue. The learned District Judge set aside the judgment and the decree and remanded the suit directing the trial court to give an opportunity to the plaintiffs to remit the court fees for the trial of the above issue. According to the learned counsel for the appellants the order of remand is illegal as the question of title did not come up for consideration during the trial and in the appeal memorandum the plaintiffs challenged only the finding regarding their claim of possession of the property.
4. Heard.
5. There are two items of properties. The property in dispute allegedly belongs to the plaintiffs and the other (item No.2) admittedly belongs to the defendants. The only prayers made in the suit were perpetual injunction prohibiting trespass into and mandatory injunction directing removal of the construction made in the property in dispute. There was no prayer in relation to plaint schedule item No.2. It was unnecessary to attach the schedule of F.A.O(R.O)No.112 OF 2014 3 item No.2 to the plaint.
6. The suit is based on possession alone. An issue was framed with regard to the plaintiffs' title (since the defendants denied the plaintiffs' claim that they have title to the property in dispute) though there was no prayer for declaration of plaintiffs' title. But as no court fee was paid to try that issue the trial court refused to consider it. Relying on the decision of the Supreme Court in Anathula Sudhakar v. P.Buchi Reddy (AIR 2008 SC 2033) the learned District Judge held that trial of that issue was necessary.
7. Assuming that trial of the issue regarding title was necessary, I shall consider what the trial could have done in the situation available in the suit.
8. The plaintiff did not pay court fees for trial of the issue regarding his title as there was no prayer for declaration of his title. But the court framed an issue. Under Section 13 of the Kerala Court Fees and Suits Valuation Act where a party becomes liable to pay additional fee by reason of an issue framed in the suit and he does not pay it, the court shall strike off the issue and proceed to hear and decide the other issues. The trial court should have struck off the issue. But it did not strike it off. That did not entitle the plaintiff to get it tried. The trial court was fully justified in not trying that issue.
9. In certain cases though the suit is for injunction alone, the F.A.O(R.O)No.112 OF 2014 4 question of title will arise. The initial point which requires determination in this case is whether issue regarding title arose in the suit. The plaintiffs asserted their title to the property in dispute and the defendants denied it. Can it be said that the issue arose. Under Order 14 Rule 1 (1) CPC an issue arises when a material fact is alleged by one party and denied by the other. When any fact alleged by one party is denied by the other, an issue does not arise. The fact should be material. When does a fact become material in a case. Only when that fact is necessary to be alleged in order to show that the plaintiff has a right to sue (vide Order 14 Rule 2 CPC). Merely because one party affirms a fact and the other denies it, an issue cannot be said to arise on the pleadings.
10. Was it necessary for the plaintiffs to allege title to the property in dispute in order to claim the reliefs of perpetual injunction and mandatory injunction.
11. In a suit for injunction based on possession framing an issue regarding title may become necessary. As observed by the Supreme Court in Anathula Sudhakar v. P.Buchi Reddy (AIR 2008 SC 2033) "a suit for injunction simpliciter is concerned only with possession and normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided only with reference to the finding on possession". In the very same case the Supreme Court has mentioned the situation in which an F.A.O(R.O)No.112 OF 2014 5 issue regarding title has to be framed. It is only " where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding there on, it will not be possible to decide the issue of possession". So in a suit for injunction based on possession if the nature of the property is such that the plaintiff is able to adduce evidence to prove his possession independent of his title to the property, title cannot be said to be directly and substantially in issue merely because the plaintiff has alleged it and the defendant has denied it. To be more precise, if the nature of the property is such that it is possible for the plaintiff to adduce evidence that he has exercised acts of possession in the property the question of title is irrelevant. In the case of vacant lands this is not possible and in such cases as there is a presumption that possession follows title proof of title becomes necessary and an issue has to be framed where title is alleged and denied.
12. Now let us examine whether this is a case in which the plaintiffs could prove his possession independent of his title to the property.
13. Admittedly, the northern property described as item No.2 in the plaint schedule is in the possession of the defendants. That property and the property in dispute were part of the properties F.A.O(R.O)No.112 OF 2014 6 which belonged to the family of the tarawad of the defendants. A partition, as evidenced by Ext A1, took place in the tarwad. The property in dispute, according to the plaintiffs, was item No.2 in F schedule in Ext A1 partition deed which was allotted to their thavazhy and it has been in their possession on behalf of all the members of the thavazhy. The plaint schedule second item admittedly is part of item No.2 in A schedule in Ext A1 partition deed which was allotted to one Kunjiraman Nambiar. It changed hands and at present it is in the ownership and possession of the defendants. The plaintiffs' case is that the property in dispute is part of the properties allotted to them. The defendants contend that it is part of the property allotted to Kunjiraman Nambiar, which is now in their possession.
14. There is a physical boundary separating the two items of properties. Ext C3 commission report mentions existence of a mud wall between those two properties. In continuation of the mud wall there is a boundary of boulders ('kila'). But the existence of this boundary is not significant because the description of the property allotted to the predecessor of the defendants shows that his property consisted of two plots ('taka').
15. In the disputed property (item No.1) the Commissioner found a house and part of a house. There are some cashew trees in the plot. The plaintiffs could have let in evidence to prove that it F.A.O(R.O)No.112 OF 2014 7 was they who are in occupation of the house and took income from the trees. Along the northern boundary of the disputed property there was a pathway and it has been widened by taking property from the remaining southern portion, which is not in dispute. It was possible for the plaintiffs to prove that it was they who widened the pathway or gave permission to do so. (On the other hand, it was brought out in the cross examination of DW1(6th defendant) that it was the defendants who gave property for widening the pathway).
16. Thus, it was possible for the plaintiffs to prove that they had exercised acts of possession in the property in dispute. But that was not done.
17. This is not a case in which the court may be asked to draw the presumption that possession follows title. In other words, it was not at all necessary for the plaintiffs to prove title to establish their possession of the disputed property. It follows that question of title was not directly and substantially in issue in this case. The learned District Judge was not right in holding that as an issue regarding title was 'raised', it should have been tried.
18. As mentioned earlier, the title deed of the predecessor of the defendants shows that the property allotted to him consisted of two plots. In fact, PW1 has admitted it in his evidence. The property admittedly in the possession of the defendants (item No.2) is a single plot. The probability of the disputed property being the F.A.O(R.O)No.112 OF 2014 8 second plot mentioned in the title deed of the predecessor in interest of the defendants cannot be ruled out.
19. In a suit for perpetual injunction based on possession it is necessary for the plaintiffs to prove that the property has well defined physical boundaries and thus it can be identified from the adjoining properties. The property has to be identified not on the basis of survey plan because survey line is imaginary and people identify and enjoy properties not on the basis of imaginary lines, but on physical boundaries like wall, fence, row of trees, difference in level, boundary stones etc. If there is no such line separating the properties of the plaintiff and the defendant the proper remedy is to file a suit for fixation of boundary. Considerations will be different if the defendant has no property adjoining the plaintiff's property.
20. In this case the plaintiffs did not even make an attempt to prove that the disputed property lies within well defined boundaries. It has come out in evidence that there are well defined boundaries on the northern and western sides of the disputed property. The plaintiffs' definite case is that the disputed property is part of the property which is in their ownership and possession. They could have proved that the southern property adjoining the disputed property is in their possession, which would have certainly gone a long away to establishing their possession of the disputed property, because proof of possession of part of a property is proof of F.A.O(R.O)No.112 OF 2014 9 possession of the remaining part provided the two portions are not separated by boundaries. That also was not done.
21. A plaintiff has to win his case on his own strength and not on the weakness of the other side. The attempt of the plaintiffs has been to prove that item No.2 which admittedly is in the possession of the defendants lies within well defined boundaries. That will not prove that disputed property is in the possession of the plaintiffs. The question is not whether the defendant is in possession of the disputed property but whether the plaintiff is in its possession. Even if it is proved that the defendants are not in possession of the property in dispute, the plaintiffs will not get a decree unless they prove their possession. They only sought to prove that the defendants are not in possession. They took out a commission to measure the property of the defendants on the basis of the description in their title deed and the survey plan. That was not at all relevant. Moreover, they did not even make a request to measure the property covered by their title deed. That apart, what the Commission did was to measure the property which was admittedly in the possession of the defendants and the property in dispute.
22. In any view of the matter the plaintiffs are not entitled to a decree for perpetual and mandatory injunctions. F.A.O(R.O)No.112 OF 2014 10
In the result, this appeal is allowed. The order of remand passed by the learned District Judge is set aside. The suit is dismissed. No costs.
K.ABRAHAM MATHEW, JUDGE cms