Kerala High Court
Prl.Munsiff Court vs C.K.Gopalan
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939
RSA.No. 204 of 2015 (G)
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AGAINST JUDGMENT & DECREE DATED 10-11-2014 IN AS 16/2013 of I
ADDL.DISTRICT COURT, KOLLAM
AGAINST JUDGMENT & DECREE DATED 31-01-2013 IN OS 724/2010 of
PRL.MUNSIFF COURT, KOLLAM
APPELLANTS/RESPONDENTS 1 TO 3 IN THE LOWER APPELLATE COURT AND
PLAINTIFFS IN THE TRIAL COURT):
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1. C.K.GOPALAN, AGED 79 YEARS,
S/O.KUNJURAMAN, RESIDING AT 'AMBILY', PATTATHANAM,
VADAKKEVILA VILLAGE, KOLLAM TALUK,
PATTATHANAM P.O., PIN - 691 021.
2. SUDHA GOPALAN, AGED 69 YEARS,
WIFE OF C.K.GOPALAN, RESIDING AT 'AMBILY', PATTATHANAM,
VADAKKEVILA VILLAGE, KOLLAM TALUK,
PATTATHANAM P.O., PIN - 691 021.
3. VIJILAL,AGED 43 YEARS,
WIFE OF DILIP, RESIDING AT 'AMBILY', PATTATHANAM,
VADAKKEVILA VILLAGE, KOLLAM TALUK,
PATTATHANAM P.O., PIN - 691 021, NOW RESIDING AT FLAT
NO.7 A1, ARTECH SAMRUDHI VENPAKAL HEIGHTS, NEAR
GOVERNMENT COLLEGE, KUNNUKUZHI, THIRUVANANTHAPURAM.
BY ADVS.SRI.R.D.SHENOY (SR.)
SRI.LEGITH T.KOTTAKKAL
SRI.S.VINOD BHAT
RESPONDENTS/APPELLANT AND 4TH RESPONDENT IN THE LOWER APPELLATE
COURT AND DEFENDANTS 1 AND 2 IN THE TRIAL COURT).:
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1. M.G.MATHEW, AGED 58 YEARS,
SON OF GEEVARGHESE, NOW RESIDING AT MANAPPURTHU HOUSE,
JNR NAGAR 99, JAWAHAR JUNCTION, PATTATHANAM P.O.,
VADAKKEVILA VILLAGE, KOLLAM TALUK, PIN - 691 021.
2. LEELA, AGED ABOUT 70,
DAUGHTER OF SEKHARAN, THEJAS, NEAR THUMBARA TEMPLE,
MUNDAKKAL VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT,
MUNDAKKAL P.O., PIN - 691 001.
R1 BY ADV. BECHU KURIAN THOMAS (SENIOR)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
20-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
[CR]
B. KEMAL PASHA, J.
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R.S.A. No. 204 of 2015
...............................................................
Dated this the 20th day of July, 2017
J U D G M E N T
(1) Can the successful party in the outcome in a suit, appeal against an adverse finding in the suit?
(2) Can the acts complained of in this suit, come under public nuisance for complying with the mandatory procedure under Section 91 CPC?
2. Challenging the dismissal of O.S.No.724 of 2010 of the Munsiff's Court, Kollam by the 1st Additional District Court, Kollam, through the judgment and decree in A.S.No.16 of 2013, the plaintiffs have come up with this Regular Second Appeal.
3. Initially, O.S.No.724 of 2010 was decreed by the R.S.A. 204 of 2015 -: 2 :- Munsiff's Court, Kollam. The 1st defendant in the suit challenged the judgment and decree through A.S.No.16 of 2013. The lower appellate court allowed the appeal by setting aside the judgment and decree passed by the Munsiff's Court, and dismissing the suit. Plaintiffs 1 and 2 are husband and wife. The 3rd plaintiff is their daughter.
4. According to the plaintiffs, plaintiffs 1 and 2 purchased plaint A schedule property in the year 1985 through three Sale Deeds from the 2nd defendant. In the year 1993, plaintiffs 1 and 2 settled the plaint A schedule property in favour of the 3rd plaintiff through Exhibit-A1 Settlement Deed. When a mistake in the Survey number of the property scheduled in Exhibit-A1 could be traced out in Re-Survey, plaintiffs 1 and 2 executed Exhibit-A2 Correction Deed for rectifying the mistake in the Survey number, crept in Exhibit-A1. Plaint A schedule property is having an extent of 6.66 Ares in Re-Survey No.66 in Block No.87 of the Vadakkevila Village.
5. According to the plaintiffs, plaint B schedule R.S.A. 204 of 2015 -: 3 :- property is having an extent of 17.5 cents. The 1st defendant purchased plaint B schedule property in Re-Survey No.36, in Block No.87 in the year 1990 and he has been residing in the building situated in plaint B schedule property. According to the plaintiffs, there are 7 plots of properties in the said Block, which was owned and possessed by one Smt. Amaravathi and her children. They sold the said plots to several persons and a common road was formed for access to the said Colony for the use of all the residents, from the northern main road.
6. Further, according to the plaintiffs, a strip of land was kept in between the said common road and the plaint B schedule property. The said strip of land is scheduled as plaint C schedule item. According to the plaintiffs, plaint C schedule strip of land was provided as a parking place, play ground and also for other common purposes, for the inhabitants of the Colony.
7. It was in the year 1969, that Smt. Amaravathi sold plaint B schedule property to one Rama Rao Kini, and the R.S.A. 204 of 2015 -: 4 :- rest of the property to the 2nd defendant's father late Sekharan. After the death of Sekharan, the 2nd defendant derived title over the property purchased by Sekharan. It was from the 2nd defendant, that the plaintiffs purchased plaint A schedule property as aforesaid.
8. Plaint C schedule is situated in Re-Survey No.64 of Block No.87. The pathway situated at the western side of plaint C schedule item has now become a public road being used by the inhabitants of the Colony and their visitors. In the year 1990, the 1st defendant made attempts to trespass into plaint C schedule property. At that time, the 2nd defendant filed O.S.No.1033 of 1990 before the Munsiff's Court, Kollam against the 1st defendant for perpetual injunction against trespass. The said suit was dismissed on the ground that either the plaintiff or the 1st defendant had no exclusive possession over plaint C schedule item.
9. The 1st defendant again allegedly attempted to grab plaint C schedule property, and then the 2nd defendant filed O.S.No.217/1994. The said suit was also dismissed. The R.S.A. 204 of 2015 -: 5 :- appeal filed by the 2nd defendant challenging the dismissal, was also dismissed.
10. Taking advantage of the situation, the 1st defendant had allegedly demolished the western boundary wall described as 'aramathil' of plaint B schedule property and constructed a new compound wall described as plaint D schedule item, at the eastern boundary of the aforesaid common road of the Colony. The plaint D schedule item was constructed and the 'aramathil' was demolished with a view to making plaint C schedule item also as part of plaint B schedule item.
11. Further, according to the plaintiffs, even though the extent of the property conveyed to the 1st defendant is erroneously shown as 20 cents in the title deed in favour of the 1st defendant in respect of plaint B schedule property, he has got possession over an extent of 17.5 cents only. The 2nd defendant has no independent right over plaint C schedule common space. Thereafter, the 1st defendant has attempted to make some more constructions in plaint C R.S.A. 204 of 2015 -: 6 :- schedule item, without obtaining licence from the local authority. The present suit has been filed for a decree for mandatory injunction directing the 1st defendant to demolish plaint D schedule compound wall and to restore plaint C schedule common space to its original position and also for perpetual injunction restraining the 1st defendant and his associates from making any further constructions in plaint C schedule item.
12. The 1st defendant filed a written statement contending inter alia as follows: The suit is not maintainable in the eye of law or on facts. The suit is bad for non joinder of necessary parties, since the 3rd plaintiff was not impleaded in the suit. The plaint schedule descriptions are not correct. The extent of plaint B schedule property shown in the plaint is not correct. Any property, as described in plaint C schedule, is not in existence. Under the guise of such a common space as C schedule, the plaintiffs are claiming a portion of plaint B schedule property. The plaintiffs have no manner of right over the plaint C schedule R.S.A. 204 of 2015 -: 7 :- item. The entire plaint B and C schedule items are in the possession and enjoyment of the 1st defendant. According to the 1st defendant, he has exclusive title and possession over an extent of 20 cents of property by virtue of the two Sale Deeds obtained by him in his favour. The plaint D schedule is the compound wall separating the common road and the property of the 1st defendant. Plaint C schedule is not a common space, whereas, it forms part of plaint B schedule property, ever since the execution of Sale Deed Nos.973/1996 and 877/1969. The 1st defendant has got every right to put up any structure over any of the portions of plaint B and C schedule properties. Plaintiffs are not entitled to get any decree of mandatory injunction or prohibitory injunction.
13. Regarding the contention of non joinder, it seems that the said contention is no longer in force, when plaintiffs 1 and 2 have chosen to implead their daughter as the additional 3rd plaintiff.
14. This Court has admitted this Regular Second R.S.A. 204 of 2015 -: 8 :- Appeal on the following substantial questions of law:
"(i) Is the reliance placed on the judgments in previous suits to which the plaintiffs are not parties, to hold that the findings in those suits are binding on the plaintiffs militate against the established principle that a person, if not a party to a suit, is not bound by the findings therein?
(ii) In the wake of Ext.A8 mahazar Exts.A9 sketch, Exts.C1, C2 and C3 and the admissions by first defendant from the box is not the reversal of the judgment and decree by the trial court without meeting the reasoning of the trial court unsustainable and illegal?
(iii) Whether the judgments in previous suits to which first defendant is a party relevant under Section 13 of the Evidence Act and if so what is the legal effect of those judgments namely, Ext.A14, Ext.B4 and Ext.B6?"
15. The learned Senior Counsel for the appellants R.S.A. 204 of 2015 -: 9 :- has argued that the lower appellate court was carried away in upsetting the decree passed by the trial court. According to the learned Senior Counsel, the trial court had handled the situation properly and had decreed the suit by considering the matters in its correct perspective. It has been argued that the suit is one which clearly comes under Section 39 of the Specific Relief Act and the suit was necessitated in order to prevent the breach of an obligation and also to compel the performance of certain acts, which the first defendant is bound to perform. It has also been argued that the dismissal of the earlier two suits filed by the 2nd defendant is of no consequence at all, as far as the present suit is concerned. Even though the plaintiffs have acquired the property from the 2nd defendant, who had filed the earlier two suits, the plaintiffs have not sought for any of the reliefs for which the aforesaid suits were filed. Further, the plaintiffs are not harping upon any of the arguments forwarded by the 2nd defendant in those two suits whereas; the case of the plaintiffs is that the plaint 'C' schedule item is R.S.A. 204 of 2015 -: 10 :- a common space left for the use and enjoyment of all the residents of the buildings in the cluster. According to the learned Senior Counsel for the appellants, the first defendant has no exclusive right over the plaint 'C' schedule item and the acts committed by the first respondent in joining the plaint 'C' schedule item with the plaint 'B' schedule property cannot be approved. Therefore, according to the learned Senior Counsel for the appellants, the lower appellate court has committed a grave error in upsetting the judgment and decree passed by the trial court.
16. Per contra, the learned Senior Counsel for the first respondent has argued that the suit as such is not maintainable in the eye of law. Further, the suit is hit by the principles of res judicata and estoppel. It has been argued that in the nature of the claim forwarded by the plaintiffs in the suit, they ought to have preferred a suit for declaration within the meaning of Section 34 of the Specific Relief Act, when the plaintiffs are not asserting any specific right over plaint 'C' schedule property. It has also been argued that the R.S.A. 204 of 2015 -: 11 :- approach of the trial court was to the effect that the first defendant ought to have proved his right or title over the plaint 'C' schedule property in order to defend the suit, and the said erroneous approach has been presently corrected by the lower appellate court. It has been argued that in order to succeed in the suit, the plaintiffs have to stand on their own legs and they cannot depend on any of the laches or defects of the defence.
17. This Court has gone through the judgment rendered by the trial court. It is evident that the trial court was carried away in making several observations in the judgment which had in fact resulted in the decision rendered by the trial court. The trial court has found that in the two suits filed by the 2nd defendant against the first defendant, there were observations to the effect that either the first defendant or the 2nd defendant herein has no exclusive right or possession over plaint 'C' schedule property and therefore, in order to succeed in the present suit, the first defendant ought to have assailed the said findings entered R.S.A. 204 of 2015 -: 12 :- against the first defendant by the trial court as well as the appellate court. The trial court has observed in paragraph 13 of its judgment as follows:
"The 1st defendant has not assailed the observations in the said judgments regarding his title and possession over the plaint C schedule property. The said findings are final disentitling him to annex the said property to the plaint B schedule property for his title over the plaint C schedule property was negated in the earlier suits filed by the 2nd defendant herein. In the said context, he is an encroacher on the plaint C schedule property and the boundary wall constructed by him on the western side of the property comprised in re-survey No.64 in Ext.A10 plan ought to be removed."
Therefore, it is evident that the trial court had passed the judgment and decree merely based on the said observations. From the said observations of the trial court, it is evident that the trial court had not dealt with the matter in its correct perspective.
R.S.A. 204 of 2015 -: 13 :-
18. An appeal is a statutory right. It can be said that an appeal is a creature of a specific statute. An appeal can be preferred only when an appeal is provided. An appeal can be filed against a decree alone. A successful party cannot appeal against an adverse finding. See Ganga Bai v. Vijayakumar and others[AIR 1974 SC 1126] followed by Banarsi and others v. Ram Phal[AIR 2003 SC 1989]. In the decision in Ganga Bai(supra), it was held as follows:
"These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It must follow that First Appeal No. 72 of 1959 filed by defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial court."
Therefore, the aforesaid observations made by the trial court, which culminated in the findings, are erroneous. R.S.A. 204 of 2015 -: 14 :-
19. Even though the trial court had made an attempt to explain that the present plaintiffs are not litigating under the very same title of the 2nd defendant, the position is in fact otherwise. The 2nd defendant was fighting tooth and nail for preserving plaint 'C' schedule item. However, at the same time, she was claiming independent right and title over plaint 'C' schedule item. The first suit was one for perpetual injunction. When she failed in the said suit, she filed the second suit for declaration of her title and possession over the said property, and also for perpetual injunction. When she could not prove her title over the property, she was non- suited in the second suit also. Even prior to the filing of the said suits, plaintiffs 1 and 2 had purchased the plaint A schedule property from the 2nd defendant. It has clearly come out from the deposition of PW1, who is the third plaintiff, that they were aware of the earlier suits and they were watching those proceedings. This is a case wherein the plaintiffs were remaining as mute spectators, when the 2nd defendant has unsuccessfully forwarded independent R.S.A. 204 of 2015 -: 15 :- claim over plaint 'C' schedule property. If, as a matter of fact, it was a common space on which the plaintiffs could claim any right, they would have intervened in the said suits. Their silence speaks volumes against them. When the plaintiffs were aware that the 2nd defendant had forwarded independent claims in respect of the plaint 'C' schedule property and was attempting to get her title and possession over plaint 'C' schedule item declared, their silence with the knowledge of the proceedings clearly estop them from forwarding different claims in respect of plaint 'C' schedule item.
20. The learned Senior Counsel for the appellants has argued that the plaintiffs are not forwarding any independent claim over plaint 'C' schedule item; whereas, their specific case is that the said specific plot of property was left deliberately for the common use of the inhabitants of all the buildings in the cluster. According to the appellants, they want to preserve plaint 'C' schedule property as such. In order to harp upon Section 39 of the Specific Relief Act, R.S.A. 204 of 2015 -: 16 :- the plaintiffs have to prove the corresponding obligation on the part of the adverse party. The corresponding obligation which the appellants now claim from the part of the first defendant is to see that he should also preserve plaint 'C' schedule property as a common space for the use and enjoyment of all the residents of the buildings in the cluster. The first defendant has all along maintained a case that the plaint 'C' schedule property is a part of his property described as plaint B schedule item and his predecessors- in-interest had purchased 20 cents of property from Smt. Amaravathy. From the predecessors-in-interest of the first defendant, he had also purchased the very same property. At the same time, according to the appellants, even though the extent of the property is shown in the title deeds of the first defendant as 20 cents, the correct extent is only 17.5 cents.
21. The learned Senior Counsel for the appellants has pointed out that in the document obtained by Rama Rao Kini, who is the vendor of the first defendant from Smt. R.S.A. 204 of 2015 -: 17 :- Amaravathy, the western boundary of the said property was shown as 'aramathil'. The presence of such an 'aramathil' was reported by the earlier Commissioners in the earlier suits. It has also been argued that the said 'aramathil' was demolished by the first defendant after the final disposal of the second suit filed by the 2nd defendant against the first defendant, and he constructed the compound wall separating the common pathway and the plaint 'C' schedule item.
22. The first defendant is claiming title over the plaint 'C' schedule item. According to him, it is a portion of his own property. At the same time, appellants are maintaining a claim that the said plaint 'C' schedule item was left as a common space for the use of all the inhabitants of the buildings in the cluster. At the same time, the 2nd defendant had maintained a case that she had title and possession over plaint 'C' schedule item. The claim of the 2nd defendant was repelled. The first defendant cannot be found fault with in not assailing the findings with regard to the plaint 'C' R.S.A. 204 of 2015 -: 18 :- schedule item in the earlier suits. It has to be considered that still he can maintain such a claim. Of course, in order to appropriate the suit property, he has to prove that he is entitled to appropriate that property. At the same time, it is the duty of the appellants to prove that the first defendant had an obligation to maintain the plaint 'C' schedule item as a common space. As rightly pointed out by the learned Senior Counsel for the first respondent, the plaintiffs cannot harp upon the weakness of the defence or the laches on the part of the first defendant to prove his title and possession over the plaint 'C' schedule item, to succeed in the suit. It is for the plaintiffs to prove that the first defendant has such an obligation and he could be compelled under Section 39 for a decree of mandatory injunction to demolish and remove the newly constructed compound wall, and also to restore the plaint 'C' schedule item as it then existed.
23. The learned Senior Counsel for the first respondent has argued that the suit is not maintainable because of the fact that the plaintiffs have not forwarded any R.S.A. 204 of 2015 -: 19 :- independent claim over plaint 'C' schedule item. In such case, according to the learned Senior Counsel for the 1st respondent, the acts, if any, committed by the 1st respondent in demolishing the then existing 'aramathil' and in putting up a new compound wall at the eastern boundary of the common pathway and his acts in making plaint C schedule item as portions of plaint B schedule item, can only be styled as a nuisance. In such case, according to the 1st respondent, a suit under Section 91 CPC alone will be maintainable in a case like this, especially when the plaintiffs are not claiming any independent right over plaint C schedule property.
24. No documents are available to show that the plaint C schedule item was kept as a common space. The observations made by the trial court show that all the inhabitants were making use of the entire C schedule item as a pathway. At the same time, the case of the appellants is that plaint C schedule item was being used by the inhabitants of the buildings in the cluster as well as the R.S.A. 204 of 2015 -: 20 :- visitors to that place as a parking place for parking their cars and other vehicles. It has also been pleaded by the plaintiffs that a tuition centre was being conducted there and a lot of students, who are coming over there, use to park their motor bikes as well as bicycles and other vehicles at that parking place. However, the plaintiffs have no case that the plaintiffs use to park their vehicles at the said parking space. The plaintiffs have not pleaded any instance wherein they had occasion to make use of plaint C schedule item for any purpose of their own. Matters being so, this is a case wherein the appellants have instituted the suit for the benefit of others. In such case, if it comes within the purview of 'nuisance', the plaintiffs ought to have instituted the suit under Section 91 CPC.
25. 'Public nuisance' has been defined in Section 3 (48) of the General Clauses Act as follows:-
"Public nuisance shall mean a public nuisance as defined in the Indian Penal Code (45 of 1860)".
26. In Section 268 of the Indian Penal Code, 'public R.S.A. 204 of 2015 -: 21 :- nuisance' has been defined as follows:-
"Public nuisance - A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or advantage."
27. On a close reading of the definition of 'public nuisance' in Section 268 of the Indian Penal Code, if the plaint C schedule item is a common space set apart for the use of the inhabitants of the buildings in the cluster, it seems that the present acts, if committed by the 1st respondent, can also be categorised as public nuisance affecting the public. In such case, the plaintiffs ought to have instituted the suit under Section 91 CPC. As per Section 91(1)(b) of the CPC, they could have instituted the suit only with the leave of the court even though no special damage has been R.S.A. 204 of 2015 -: 22 :- caused to the plaintiffs by reason of such public nuisance.
28. Regarding the plea of estoppel, as rightly pointed out by the learned Senior Counsel for the appellants, the 1st defendant ought to have specifically pleaded that the plaint claim is hit by estoppel. True that there are no pleadings to that effect in the written statement of the 1st defendant. Therefore, the plea that the claim forwarded by the appellants is barred by estoppel cannot be entertained at this stage.
29. Still, the plaintiffs are not aware of the title holders in respect of plaint C schedule item. According to the 1st defendant, he is the title holder in respect of that property. When the appellants have instituted the suit independently for others, they ought to have complied with the procedure under Order I Rule 8 CPC also.
30. When the suit has not been instituted under Section 91 CPC and when the plaintiffs could not establish the obligation meant for under Section 39 of the Specific Relief Act on the part of the 1st respondent, the suit is not R.S.A. 204 of 2015 -: 23 :- maintainable. Apart from that, when any specific right over plaint C schedule property has not been pleaded by the plaintiffs, they ought to have sought for a relief of declaration of any such right in order to maintain the said suit. From all these, this Court is satisfied that the Second Appeal is not maintainable. The impugned judgment and decree passed by the lower appellate court are not liable to be interfered with.
In the result, this Regular Second Appeal is dismissed. There is no order as to costs. All the interlocutory applications in this appeal are closed.
Sd/- B. KEMAL PASHA, JUDGE.
ul/aks/dsv/-
// True copy // P.S. to Judge.